Justice v. Ice Fuel Co. , 18 Ohio App. 2d 197 ( 1969 )

As stated by Judge Hart in his opinion in Schwarz v. GeneralElectric Realty Corp., 163 Ohio St. 354, at page 357:

"Due to the infinite variety of circumstances under which an employee of an independent contractor may be injured while working for the contractor on the premises of the owner thereof employing the contractor, the law as to the liability of the owner for such injuries is in some confusion. * * *"

Key cases relative to the applicable law are: Comerford v.Jones Laughlen Steel Corp., 170 Ohio St. 117; Schwarz v.General Electric Realty Corp., 163 Ohio St. 354; Wellman v.East Ohio Gas Co., 160 Ohio St. 103; and Bosjnak v. SuperiorSheet Steel Co., 145 Ohio St. 538.

From these cases, I reach the following conclusions:

1. That the obligation of the owner to comply with Section4101.01 et seq., Revised Code, often called the frequenter statutes, is dependent upon whether the employee of the independent contractor is a "frequenter" within the meaning of those sections, and this question of whether the employee of an independent contractor stands in the position of a frequenter as to the owner of the premises, within the meaning of the statutes, must be decided by determining whether such employee of an independent contractor was a frequenter of a place of employment of which the owner had either custody or control or the right thereto.

In the instant case, there is testimony from which the jury could have found that, through Tom Koch, its president and manager, The Shelby Ice and Fuel Company did exercise control, by active participation, by advising plaintiff (the employee of the independent contractor) that the tank was fastened and by requesting that it be dismantled from the top rather than from the bottom. Such testimony if found by the jury to be true was sufficient to make applicable the provisions of Sections4101.01, 4101.11 and 4101.12, Revised Code, and the court's refusal to properly charge the jury, as to the applicability of such sections, when requested to do so, if they find that the defendant did exercise control or retain the right thereto, was error prejudicial to the plaintiff, appellant herein.

2. Where an employee of an independent contractor, while engaged in work upon premises, the possession and control of which are retained by the owner, is a frequenter within the meaning of Section 4101.01 et seq., Revised Code, the owner owes to him the duty to do everything reasonably necessary to furnish a place of employment which is as safe as the nature of the employment will reasonably permit, including the duty to inform such frequenter of hazardous conditions of the premises created by the owner or of which he has knowledge but which are unknown by and not obvious to the frequenter. Such duty of the owner to do everything reasonably necessary to furnish a place of employment which is as safe as the nature of the employment will reasonably permit does not extend, however, to inherent hazards necessarily present because of the character of the work to be done or to a hazard created by negligent operation by the independent contractor or his employee.

3. The employee of an independent contractor does not assume the risk resulting from any breach of duty by the owner who employed the contractor; however, his right of recovery may be barred by his own negligence, if his negligence contributed as a proximate cause of his injuries. See Bosjnak v. Superior Sheet Steel Co., 145 Ohio St. 538, at page 547, where the court said:

"In our opinion it was the duty of the trial court to submit the questions of negligence and contributory negligence to the jury with proper instructions, * * *."

In the instant case, the court charged on assumption of risk but not on contributory negligence. The tank which the defendant contracted with plaintiff's employer to have dismantled was three to three and a half feet in diameter and approximately twenty feet high and stood on a metal frame with water underneath. It was used for the manufacture of ice but had not been in use for several years and was rusted. It was in a building used only occasionally for storage. There was testimony that plaintiff by prying on a bar caused the metal frame under the tank to bend. If the tank fell because of plaintiff's prying on it with a bar as a part of the process of dismantling the tank, whether prying with the bar caused it to fall by causing the metal frame supporting it to bend or whether the force caused it to fall because it was not fastened to the frame presented jury questions of fact relative to the proximate cause of injury. If under the circumstances as found by the jury the proximate cause of injury to plaintiff was a breach of duty by defendant, defendant would be liable, but if the proximate cause was other than a breach of duty by defendant or the jury found negligence on the part of plaintiff which contributed as a proximate cause of his injuries, the defendant would not be liable.

The provisions of Section 2315.16, Revised Code, limit the scope of interrogatories to having the jury "specially to find upon particular material allegations contained in the pleadings controverted by an adverse party."

In Miller v. McAllister, 169 Ohio St. 487, in the second paragraph of the syllabus, the Supreme Court of Ohio in defining the legislative intent of the purpose of interrogatories said, "and such interrogatories are to test the correctness of the verdict returned and contemplate essentially findings on controlling questions of fact."

Thus in the instant case, an example of interrogatories which among others would be proper are:

Do you find by a preponderance of the evidence that the defendant by its president or manager did advise the plaintiff that the tank was fastened at the bottom?

Do you find by a preponderance of the evidence that the defendant by its president or manager did request the plaintiff to dismantle the tank from the top rather than from the bottom?

Do you find by a preponderance of the evidence that the tank was not fastened at the bottom?

The first interrogatory asked was, "Was the tipping of the tank caused solely by the action of the plaintiff in exerting force on it with a wrecking bar?" The jury answered, "Yes."

There was no mention of prying with a wrecking bar in the pleadings, although defendant did allege that any injury or damages suffered by the plaintiff was caused solely and proximately by the negligence of the plaintiff, which the plaintiff by reply denied. If the pleadings were not sufficiently specific when filed, it might be necessary before presenting the interrogatory in question to have the pleading amended to conform to the evidence, although such would seem superfluous if the controlling question of fact relates directly to a particular material general allegation in the pleading controverted by the adverse party. However, a further difficulty with the question asked is that, under the evidence in this case, it is not determinative of any question of fact which is controlling because it does not relate to the conditions under which the prying may have caused the tank to fall for some of which conditions defendant would be liable, but for others as to which defendant would not be liable. Even had it been otherwise proper, this interrogatory was therefore confusing and misleading and giving it to jury was error prejudicial to the plaintiff.

For the reasons stated, I concur in the judgment of reversal and remand for a new trial.