Opinion · Ohlaw Ohio
SCHWARZ v. GEN. ELEC., 163 Ohio St. 354 (1955)
126 N.E.2d 906
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1955-05-18
- Topic
- general
SCHWARZ v. GEN. ELEC., 163 Ohio St. 354 (1955) 126 N.E.2d 906 SCHWARZ, APPELLANT v. THE GENERAL ELECTRIC REALTY CORP.; THE GENERALELECTRIC CO., APPELLEE. No. 34206Supreme Court of Ohio.
Citator
UpLaw has not yet analyzed SCHWARZ v. GEN. ELEC., 163 Ohio St. 354 (1955). The absence of a flag is not a finding that it is good law.
SCHWARZ v. GEN. ELEC.,163 Ohio St. 354(1955)
126 N.E.2d 906
SCHWARZ, APPELLANT v. THE GENERAL ELECTRIC REALTY CORP.; THE GENERAL
ELECTRIC CO., APPELLEE.
No. 34206
Supreme Court of Ohio.
Decided May 18, 1955.
1. Where an owner of premises engages an independent contractor to do work thereon, an employee of the contractor while performing the work is on the premises impliedly as an invitee of the owner, and the owner owes the employee the duty of exercising ordinary care to maintain the premises in a reasonably safe condition for use, this duty not extending, however, to any inherent hazards necessarily present because of the character of the work to be done.
2. The rule that an owner must keep his premises in a reasonably safe condition for an independent contractor and his employees while performing thereon the work for which they are employed by the owner does not apply to a hazard created by negligent operation by the independent contractor or his employees.
3. Where the owner of premises employs an independent contractor to do work thereon, is not in control of the work area, does not participate in the work, and gives notice to the contractor or to those in charge of the work of the potential danger of contact with a high-tension electric line maintained on the premises, such owner is not legally obligated to give notice of such danger to the individual employees of such independent contractor who may be assigned by such contractor to unload steel beams at a site underneath such high-tension line.Page 355
The defendant The General Electric Company, hereinafter called defendant, a New York corporation authorized to do business in Ohio, owned and occupied an extensive industrial tract of land in the vicinity of Lockland, Ohio, which with structures, was known as the General Electric Plant.
Prior to April 2, 1952, the Duffy Construction Corporation, hereinafter called Duffy, was employed by the defendant to do structural work at the plant of the latter and, as an incident thereto, to unload a carload of steel beams by means of a crane with a 45-foot boom with cables attached, the beams to be swung from the car for placement directly under a high voltage power line 36 feet above the ground and supported in position by poles. This high-tension line was owned and operated by the Cincinnati Gas Electric Company, which company had a 25-foot easement over defendant's property for the maintenance of the poles and wires to carry current to defendant's transformer substation. This power line was under the sole control of the gas and electric company.
The defendant, through a resident engineer of the General Electric Realty Corp., designated the unloading site for the beams after Duffy had leveled off and prepared the bed upon which the beams were to rest. The operation was entirely within the control of Duffy. The foreman of the iron workers of Duffy knew of the presence of the power line and of its potential danger. This foreman testified that there were warning signs around that area near the poles, which read, "danger, high voltage." The proposed operation was recognized as a dangerous one by all parties concerned except the plaintiff who claimed that he had not seen the high-tension line or been advised of itsPage 356potential danger, although he was working directly under the line when the accident happened. The plaintiff was an iron worker of many years experience and was accustomed to working with cranes around high-tension wires. The testimony discloses that the boom used in lifting the beams from the car was in sectional lengths which permitted it to be shortened so that its lift could be shorter than the height of the wires. This high-tension line was of such size and construction that it should have been obvious to any one in the immediate vicinity. Other Duffy employees testified that working with heavy equipment in proximity to high-tension wires was common practice in construction work, such as in the instant case, and presented a well known hazard.
Three months before the accident, defendant had warned Duffy by letter that the high-tension line was being energized and that interference with it by equipment must be avoided. This information was communicated to the foreman of Duffy in charge of the work. The day before the accident, certain of the Duffy employees had protested the selection of the unloading site as being dangerous, but no change was made in the location. There was no claim that the high-tension line was improperly constructed, that it was out of repair, or that the defendant had any immediate control over it.
At the time of the accident, which was during day-light hours, plaintiff was assisting two fellow workmen in guiding the beams into place on timbers placed on the ground. The steel cables of the crane were swung too close to the high-tension wires, with the result that the cables came in contact with the wires and plaintiff was severely injured by the current escaping from the high-tension line through the beam and cables. Duffy was in sole charge of the crane, and the accidentPage 357was caused by the negligent operation of the crane by one of its employees.
At the trial of this cause in the Common Pleas Court of Hamilton County, the court sustained defendant's motion to require the plaintiff to elect between defendants, and the plaintiff elected to pursue his claim against the defendant (The General Electric Company). Thereafter, the trial court sustained defendant's motion for a directed verdict. Plaintiff filed a motion for a new trial, which was overruled.
An appeal was taken to the Court of Appeals, which court affirmed the judgment of the Common Pleas Court.
The cause is now before this court on the allowance of plaintiff's motion to certify the record.
Other facts are stated in the opinion.
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. The plaintiff claims the rule here applicable is stated, as follows, in the first paragraph of the syllabus inBosjnakv.Superior SheetSteel Co.,145 Ohio St. 538,62 N.E.2d 305:
"An employee of an independent contractor, while engaged in the erection of a building upon premises, the possession and control of which are retained byPage 358the owner, is an invitee to whom the owner owes the duty of exercising ordinary care to maintain the premises in a reasonably safe condition for use in a manner consistent with the invitation, and to inform the invitee of hazardous conditions of the premises and of activities thereon unknown by and not obvious to the invitee."
On the other hand, the defendant claims, first, that, since the plaintiff was employed by an independent contractor in the performance of a contract with defendant and the contractor had knowledge of the real and potential dangers surrounding the performance of the contract, the duty to protect the plaintiff and its other employees from injury was the duty of the independent contractor and not the duty of the defendant, and, second, that the proximate cause of plaintiff's injury was the negligent conduct of the plaintiff himself and his fellow employees, who comprised the iron workers crew engaged in unloading the car for Duffy.
Consequently, the defendant claims that the law applicable in the instant case is that expressed inWellmanv.East Ohio GasCo.,160 Ohio St. 103,113 N.E.2d 629, wherein this court held:
"1. Where an independent contractor undertakes to do work for another in the very doing of which there are elements of real or potential danger and one of such contractor's employees is injured as an incident to the performance of the work, no liability for such injury ordinarily attaches to the one who engaged the services of the independent contractor.
"2. One who engages an independent contractor to do work for him ordinarily owes no duty of protection to the employees of such contractor, in connection with the execution of the work, who proceeds therewith knowing and appreciating that there is a condition of danger surrounding its performance."Page 359
TheBosjnak caseis distinguishable from the instant case in that in that case the defendant actually participated in the operations incident to and in connection with the erection of its building upon which the plaintiff was working for the independent contractor. Also, a change in the conditions inside the building created by the defendant made it necessary to operate the crane outside the building, which resulted in plaintiff's injury. In other words, there was intermeddling by the defendant owner.
The giving of notice by the owner of premises to the employees of his independent contractors, who may come upon such premises, of all potential hazards which may exist thereon has its practical limitations and is not generally required.
It may be impracticable and well nigh impossible for a large manufacturing enterprise to give individual notices of danger, surrounding the performance of the work to be done, to many hundreds of employees who may be working in its plant for independent contractors. Their presence in the plant and their identities may be unknown to the plant management. Any large industrial plant must necessarily have within its confines many potentional hazards which can not be wholly eliminated and whose presence can not always be subject to notice. Each employee of an independent contractor is under the immediate direction and supervision of his own employer, and for this reason courts take the position that, where the employer of the independent contractor is not in immediate control of the employment area and does not participate in the operation thereon, notice to the independent contractor of hazards within the employment area is notice to his employees, as such independent contractor has the duty to transmit such notice or warning to his individual employees. Under such rule, if notice of dangerous conditions is given to the independent contractor,Page 360the employer of the contractor has performed his duty so far as it applies to the employees of the contractor. SeeGracev.HenryDisston Sons, Inc.,369 Pa. 265,85 A.2d 118;Vallesv.Peoples-Pittsburgh Trust Co.,339 Pa. 33,13 A.2d 19;Storm,Admr., v.New York Telephone Co.,270 N.Y. 103,200 N.E. 659;Hotel Operating Co.v.Saunders' Admr.,283 Ky. 345,141 S.W.2d 260.
It is apparent that this court in theWellman caselimited the rule, earlier announced in theBosjnak case, to cases where the independent contractor and his employees enter upon the premises of the contractor's employer as his invitees, unaware and uninformed of hidden dangers on the premises which had been created by the employer or of which he had full knowledge. Here Duffy and its employees had consented to work in an obviously dangerous environment, and in so doing it was Duffy's lack of care, under the circumstances, which proximately caused plaintiff's injury. It is to be noted that the work being performed was not directly with reference to construction on or repair of the premises themselves but was an incidental operation for the benefit of the independent contractor. It was the independent contractor's and not the owner's operation, and it was entirely under the supervision and control of the former.Kowalsky, Admx., v.Conreco Co., Inc.,264 N.Y. 125,190 N.E. 206;Broecker, Admx., v.Armstrong Cork Co.,128 N.J. Law, 3,34 A.2d 194.
In view of the circumstances of the performance of the work in question, we are of the opinion that the rule announced in theWellman caseapplies, and that the trial court was justified in directing a verdict for the defendant. SeeAmerican Steel WireCo.v.Sieraski,119 F.2d 709.
The plaintiff claims also that the trial court erred in excluding evidence offered by the plaintiff that defendant'sPage 361agent had directed that the steel beams be unloaded in the area of the accident. This was not a controversial issue, and the evidence, if admitted, would have been merely cumulative. There was no prejudicial error in this respect.
The plaintiff claims also that the court erred in admitting defendant's exhibit No. 1, which was the letter of the defendant to Duffy, under date of December 27, 1951, calling its attention to the energization of and consequent danger in the high-tension line, for the reason that, since the letter was not directed to the plaintiff or brought to his attention, it constituted a self-serving declaration and was, therefore, inadmissible.
If there was any duty upon the part of the defendant to warn of any dangers on its premises, it became its duty to warn its independent contractor of the same, and the evidence shows that such warning was transmitted at length to Duffy and through Duffy to the foreman in charge of the work. Many authorities hold that notice to the independent contractor, where notice is necessary, is sufficient. SeeWellmanv.East Ohio Gas Co., andStormv.NewYork Telephone Co., supra.There was no error in this respect.
For the reasons herein stated, the judgment of the Court of Appeals is affirmed.Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART and BELL, JJ., concur.
TAFT, J., concurs in paragraphs one and two of the syllabus and in the judgment and would concur in paragraph three of the syllabus if the words, "is not in control of the work area, does not participate in the work," were omitted.Page 362