Szotak v. Moraine Country Club , 172 Ohio App. 3d 34 ( 2007 )

{¶ 38} I respectfully dissent from the decision of the majority.

{¶ 39} In Eicher v. United States SteelCorp. (1987), 32 Ohio St.3d 248, 512 N.E.2d 1165, an employee of an independent contractor who was assigned to work on the premises of the defendant's steel foundry suffered a heart attack after inhaling noxious fumes produced by the defendant's industrial processes. He commenced an action against the steel company on a claim for his injuries, alleging a breach of the duty of care to protect a frequenter from hazardous conditions that R.C. 4101.11 imposes. The trial court granted a directed verdict for the defendant at the conclusion of the plaintiff's case. On appeal, the court of appeals affirmed. Upon its review, the Supreme Court likewise affirmed, for two reasons.

{¶ 40} First, the evidence failed to demonstrate that the plaintiff's injuries resulted from a hazardous work condition, because there was no evidence that he was actually exposed to the noxious fumes and/or that the chemical composition of those fumes caused his heart attack.

{¶ 41} Second, though R.C. 4101.11 imposed a duty on the defendant steel company to protect the plaintiff from hazardous conditions on its premises, that duty did not require the company to protect the plaintiff from hazards that are inherently and necessarily present because of the nature of the work performed, absent the company's actual participation in the plaintiff's work. Therefore, contrary to the plaintiff's contention, the steel company had no duty to provide the plaintiff with a face mask that could have prevented his inhalation of the noxious fumes, a protective device the company provided its own employees.

{¶ 42} In the present case, the cause of plaintiff-appellant's injuries is not in dispute. He broke his nose, back, and both arms when the extension ladder on which he was standing slid backward from where it was positioned, causing him to fall with it to the ground. The only issue is whether defendant-appellee, Moraine Country Club, breached a duty of care that it owed plaintiff and thereby proximately caused in his injuries.

{¶ 43} Until the law of gravity is repealed, standing above ground level on a ladder presents an inherent risk of injury resulting from a fall. In the present case, the plaintiff did not fall off the ladder, but fell with the ladder to the ground when the ladder slipped away. Further, unlike the defendant in Etcher, in which a failure to act was involved, the defendant here acted to supply plaintiff with the instrumentality of his injury, the extension ladder, which he was expected to use in performing the work that the defendant country club directed him to perform. Also, there is evidence that had plaintiff been supplied with a stepladder instead, the accident would not have occurred.

{¶ 44} In construing the duty of care to frequenters that R.C. 4101.01 imposes, the Supreme Court has held:

{¶ 45} "One who engages the services of an independent contractor, and who actually participates in the job operation performed by such contractor and thereby fails to eliminate a hazard which he, in the exercise of ordinary care, could have eliminated, can be held responsible for the injury or death of an employee of the independent contractor."Hirschbach v. Cincinnati Gas Elec. Co. (1983),6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326, syllabus by the court.

{¶ 46} Here, the personal injury was suffered by the independent contractor, an individual, but the same rule applies. The country club engaged plaintiff's services, and by providing him the extension ladder to use in the work it directed plaintiff to perform, the defendant actually participated in the job operation from which plaintiff's injuries arose. Further, by not providing plaintiff with a stepladder instead, the country club failed to eliminate a hazard that the extension ladder presented, which, in the exercise of ordinary care, could have been avoided. Therefore, the country club may be liable for its breach of the duty of care to plaintiff that R.C. 4101.01 imposes.

{¶ 47} The foregoing analysis is, in my view, compelled by Civ.R. 56, which requires us to construe the evidence most strongly in favor of the plaintiff. Whether plaintiff was also negligent and, if so, whether his negligence also proximately caused plaintiff's injuries presents an issue of comparative negligences for a jury to resolve. I would reverse and remand.