Bond v. Howard Corp.

[This opinion has been published in Ohio Official Reports at 

72 Ohio St.3d 332

.]




  BOND ET AL., APPELLANTS, v. HOWARD CORPORATION ET AL., APPELLEES.
                  [Cite as Bond v. Howard Corp., 

1995-Ohio-81

.]
Torts—Inherently dangerous work—Establishing liability to injured employee of
        independent subcontractor—General contractor "actively participated,"
        when.
                                  __________________
For purposes of establishing liability to the injured employee of an independent
        subcontractor, "actively participated" means that the general contractor
        directed the activity which resulted in the injury and/or gave or denied
        permission for the critical acts that led to the employee's injury, rather than
        merely exercising a general supervisory role over the project. (Cafferkey v.
        Turner Constr. Co. [1986], 

21 Ohio St.3d 110

, 21 OBR 416, 

488 N.E.2d 189

, construed and applied.)
                                  __________________
        (No. 93-2569—Submitted April 4, 1995—Decided June 28, 1995.)
     APPEAL from the Court of Appeals for Lorain County, No. 93CA005576.
                                  __________________
        {¶ 1} In 1990, appellee Howard Corporation ("Howard") entered into a
contract with General Cinema Corporation ("General Cinema") to construct an
eight-screen movie theater in Elyria, Ohio. Howard was hired as the general
contractor for the project. To assist with the construction of the project, Howard
contracted with appellee Valentine Construction, Inc. ("Valentine"), an
independent subcontractor. Valentine was hired by Howard to complete masonry
work for the construction project. Appellant William G. Bond was an employee of
Valentine.
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        {¶ 2} In September 1990, Bond, while working at the construction site, fell
through an unguarded opening located on the second floor of the project. On the
day of the accident, Bond was constructing a wall. The wall was adjacent to the
opening where Bond fell. The opening was for a stairwell, but the stairs had not
yet been installed. Materials for the construction of the wall had been placed by
another Valentine employee near the unguarded opening. Bond went to the area
where the material was located to obtain block for the wall. Bond had his back to
the opening and, after picking up a block, he stepped backwards and fell through
the opening. Bond was severely injured as a result of the fall.
        {¶ 3} Bond was aware that the opening existed and that it was unguarded.
Howard did not supervise or participate in the actual construction of the wall.
        {¶ 4} Following the accident, Howard closed off the opening with a
guardrail. Occupational Safety and Health Administration ("OSHA") regulations
and certain Ohio guidelines require that floor openings, such as the opening in
question, be guarded.
        {¶ 5} Bond and his wife, also an appellant herein, commenced suit in the
Court of Common Pleas of Lorain County against Howard and Valentine. In their
complaint, appellants alleged that Howard was "negligent in the performance of its
duties and responsibilities as general contractor, and in providing William Bond
with a safe place in which to work." Appellants also brought an intentional tort
claim against Valentine.
        {¶ 6} Howard and Valentine filed separate motions for summary judgment.
Howard contended that it did not owe a duty of care to Valentine employees.
Valentine, in its motion for summary judgment, asserted that appellants failed to
establish the elements of "intent" for the purpose of proving the existence of an
intentional tort.




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                                January Term, 1995




        {¶ 7} The trial court granted Howard's and Valentine's motions for
summary judgment. On appeal, the court of appeals affirmed the judgment of the
trial court.
        {¶ 8} The cause is now before this court pursuant to the allowance of a
motion to certify the record.
                                __________________
        Jeffries, Kube, Forrest & Monteleone Co., L.P.A., Michael R. Kube and
William J. Shramek, for appellants.
        Reminger & Reminger Co., L.P.A., and Nicholas D. Satullo, for appellee
Howard Corporation.
        Harry A. Tipping Co., L.P.A., Harry A. Tipping and John W. Clark, for
appellee Valentine Construction Company.
                                __________________
        DOUGLAS, J.
        {¶ 9} This appeal presents two issues for our consideration. The first issue
is whether the general contractor Howard owed a duty of care to Bond, an employee
of the subcontractor Valentine. The second issue is whether an intentional tort was
committed by Valentine against Bond.
                                          I
                                  Bond v. Howard
        {¶ 10} Appellants contend that the court of appeals erred in holding that the
trial court properly granted summary judgment in favor of Howard. Appellants
assert that ample evidence exists to find that Howard retained sufficient control
over the construction site and that the general contractor "actually participated" in
the subcontractor's work. In this regard, appellants claim that Howard owed a duty
of care to Valentine employees.
        {¶ 11} In support of its position that summary judgment was improperly
granted in favor of Howard, appellants rely on portions of the contract between




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General Cinema and Howard, and portions of the contract between Howard and
Valentine. Specifically, appellants assert that the contract between Howard and
General Cinema required Howard to comply with and enforce any applicable safety
laws, rules or regulations. Appellants further urge that pursuant to the contract
between Howard and its subcontractors the subcontractors were required to obtain
permission and special instructions from Howard prior to beginning work in any
area on the job site, and that Howard had a right to remove any equipment and
personnel that created an unsafe condition at the site. Appellants also point to
certain actions undertaken by Howard. Appellants contend that Howard made daily
inspections of the construction site and, on one occasion, had given "directives" to
Bond. Additionally, appellants emphasize that, on another occasion, the
superintendent required Valentine to repair a scaffolding that had been improperly
erected by Valentine. Appellants claim further that Howard acknowledged that it
was responsible for providing "perimeter guarding and floor opening fall protection
and its superintendent was in the process of obtaining approval to expend funds for
such when Bond fell."
       {¶ 12} In construing the evidence most strongly in favor of appellants, we
must determine if the evidence supports a finding that Howard owed a duty of care
to Bond to protect Bond from the injuries he sustained when he fell from the second
floor of the construction project. In determining whether such a duty exists, we
believe it is instructive to set forth and examine prior relevant decisions from this
court where we have discussed the duties and responsibilities when one engages an
independent contractor to perform an inherently dangerous task.
       {¶ 13} In Wellman v. E. Ohio Gas Co. (1953), 

160 Ohio St. 103

, 

51 O.O. 27

, 

113 N.E.2d 629

, paragraph one of the syllabus, this court held that "[w]here an
independent contractor undertakes to do work for another in the very doing of which
there are elements of * * * danger * * *, no liability * * * ordinarily attaches to the
one who engaged the services of the independent contractor." (Emphasis added.)




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                                January Term, 1995




       {¶ 14} The plaintiff in Wellman had been employed as a welder's helper by
an independent contractor. The independent contractor had been hired by the
defendant gas company to lay a gas line. The gas company had inspectors at the
job site to ensure that the work was completed to its specifications. An employee
of the independent contractor improperly removed a cap from the gas pipe. As a
result, the cap struck plaintiff, fracturing one of his legs. In assessing whether the
defendant owed a duty to the plaintiff, this court emphasized that the independent
contractor was aware of the danger involved and, therefore, "it was [the
independent contractor's] duty to warn and protect the plaintiff, and no such duty
devolved on defendant." 

Id. at 107

, 

51 O.O. at 29

, 113 N.E.2d at 632.
       {¶ 15} In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 

6 Ohio St.3d 206

, 6 OBR 259, 

452 N.E.2d 326

, syllabus, we carved out an exception to the
general rule set forth in Wellman and held that "[o]ne 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." (Emphasis added.)
       {¶ 16} In Hirschbach, Cincinnati Gas & Electric Company ("CG & E")
hired an independent contractor to replace electrical wire conductors. Hirschbach,
an employee of the independent contractor, was killed when the tower arm
collapsed. The collapse was caused by the tractor winch, which was positioned too
close to the tower. Prior to the fatal fall, Hirschbach and several fellow employees
sought permission from CG & E's inspector to position the winch tractor at a safe
distance from the base of the tower. The inspector denied their request. Based on
these facts, we reversed a summary judgment entered in favor of CG & E and
concluded that:
       "* * * [A] jury could reasonably conclude that CG & E had sole control
over the safety features necessary to eliminate the hazard.         By denying the




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[independent contractor's] crew its request to reposition the winch tractor: (1) CG
& E refused to eliminate the hazard, (2) CG & E interfered with the mode of the job
operation, and (3) CG & E actually participated in the job operation by dictating
the manner and mode in which the winching phase of the job was to be performed."
(Emphasis added and footnote omitted.) 

Id. at 208

, 6 OBR at 261, 

452 N.E.2d at 329

.
       {¶ 17} As can be gleaned, the distinguishing factor between Wellman and
Hirschbach is that in Hirschbach, the general contractor, who had engaged the
independent contractor, actually participated in the specific job operation. In
comparison, the party who hired the independent contractor in Wellman had
inspectors at the job site, but only to ensure that the job was completed according
to specifications.
       {¶ 18} In Cafferkey v. Turner Constr. Co. (1986), 

21 Ohio St.3d 110

, 21
OBR 416, 

488 N.E.2d 189

, we further refined our holdings in Wellman and
Hirschbach. Therein, we held that "[a] general contractor who has not actively
participated in the subcontractor's work, does not, merely by virtue of its
supervisory capacity, owe a duty of care to employees of the subcontractor who are
injured while engaged in inherently dangerous work." (Emphasis added.) 

Id.

 at
syllabus.
       {¶ 19} In Cafferkey, the general contractor contracted with an independent
subcontractor to drill and install caisson foundations. In one of the caisson holes,
the subcontractor detected methane gas and made certain efforts to dispel the gas.
Nevertheless, the subcontractor allowed two of its employees to enter the hole to
burn off, with a cutting torch, a portion of a twisted metal casing. While in the hole,
one of the employees struck his flint to light a torch. As a result, an explosion
occurred and both employees were severely injured and they later died from their
injuries. By contract, and by virtue of certain portions of the general contractor's
safety manual, the general contractor retained control over safety procedures at the




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                                January Term, 1995




project. The general contractor, however, was not informed of the subcontractor's
decision to allow its employees to go into the hole.
       {¶ 20} We compared the factual setting in Hirschbach with the situation in
Cafferkey and concluded that, as a matter of law, the general contractor in Cafferkey
owed no duty of care to the decedents. The general contractor in Cafferkey "did
not actively participate in any action or decision that led to the fatal injuries. [The
general contractor] may have known about some of [the subcontractor's] activities,
but that knowledge does not constitute 'actual participation' in those activities
within the Hirschbach rule. Unlike the landowner in Hirschbach, [the general
contractor] neither gave nor denied permission for the critical acts that led to the
decedent's injuries." (Emphasis added.) 

Id. at 112

, 21 OBR at 418, 

488 N.E.2d at 192

.
       {¶ 21} With the foregoing case law as a guide, the trial court, in the case at
bar, in construing the evidence most strongly in favor of appellants held that
Howard was entitled to summary judgment. In affirming the judgment of the trial
court, the court of appeals stated that appellants rely only on "supervisory safety
acts by Howard to prove Howard's active participation in Valentine's subcontract
work [and a] mere concern for safety is not enough to establish a general
contractor's active participation under Cafferkey." The court of appeals further
stated that "nothing in the record indicates that Howard exercised control over the
means and manner of Bond's bricklaying."
       {¶ 22} We believe, under the circumstances of this case, the trial court and
court of appeals properly held that Howard was entitled to summary judgment. In
this case, Howard did not actively participate in the work performed by Valentine
because it neither gave nor denied permission for the critical acts that led to Bond's
injuries—the placing of the materials used by Bond in constructing the wall. In
fact, the materials were placed near the unguarded opening by another Valentine
employee.




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        {¶ 23} A construction site is inherently a dangerous setting. See Whitelock
v. Gilbane Bldg. Co. (1993), 

66 Ohio St.3d 594, 600

, 

613 N.E.2d 1032, 1036

(Pfeifer, J., dissenting). Bond was aware that the materials for the construction of
the wall had been placed near the opening by a Valentine employee and that a
railing had not been placed in front of the opening.
        {¶ 24} Furthermore, we reject appellants' assertions that various contractual
provisions involving Howard created a duty of care extending from Howard to
employees of Valentine. The contractual provisions relied upon by appellants
simply demonstrate that Howard retained general supervisory capacity over the
construction project and, in particular, that it retained control over safety policies
and procedures at the site. The general contractor's retention of the authority to
monitor and coordinate activities of subcontractors and the retention of control over
safety policies and procedures do not rise to the level of active participation, thereby
extending a duty of care from a general contractor to a subcontractor's employees.

Cafferkey, supra, at 113

, 21 OBR at 418, 

488 N.E.2d at 192

.
        {¶ 25} Appellants also place great emphasis on the fact that Howard had
given "directives" to Bond, that Howard made daily inspections at the job site and
required Valentine to correct a scaffolding that had been improperly erected by the
subcontractor, and that Howard acknowledged that it was responsible for providing
floor opening protection and the guarding of the perimeter of the second floor of
the project. However, our review of the record reveals that, to some degree,
appellants stretch the facts and that these events do not warrant a finding that
Howard owed a duty of care to Valentine's employees.
        {¶ 26} With respect to the "directives" given to Bond by Howard, the record
reveals that, on one occasion, Bond merely accommodated Howard's
superintendent by cutting certain material outside a building where Bond had been
working so that the dust from the cutting of the material would not settle in that
building. It is clear that the superintendent's request did not, in any way, direct or




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                                 January Term, 1995




interfere with Valentine's work.       Further, the scaffolding incident involved a
scaffold that had been improperly erected by Valentine. Howard was informed by
an authority that the scaffold had been improperly erected and Howard, in turn,
informed Valentine that it needed to correct the problem. Finally, Howard's
acknowledgment concerning the providing of a guardrail on the second floor was
limited to the guarding of the perimeter of the second floor—not floor openings as
stated by appellants. These actions do not demonstrate that the general contractor
actively   participated   "in    any    action   or   decision   that   led   to   the
* * * injuries." 

Cafferkey, supra,

6 Ohio St.3d at 112

, 21 OBR at 418, 

488 N.E.2d at 192

. Rather, these matters confirm Howard's general supervisory role in the
project and/or its general concern for safety at the site.
       {¶ 27} At the oral argument of this case, appellants contended that the
reason so many cases like this are coming before the various courts of this state is
because there is no specific definition of the term "actively participated."
Accordingly, we hold that for purposes of establishing liability to the injured
employee of an independent subcontractor, "actively participated" means that the
general contractor directed the activity which resulted in the injury and/or gave or
denied permission for the critical acts that led to the employee's injury, rather than
merely exercising a general supervisory role over the project. Therefore, based on
the foregoing, the trial court and court of appeals properly concluded that Howard
was entitled to summary judgment.




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                                         II
                                  Bond v. Valentine
       {¶ 28} In addition to the redress sought by appellants against Howard,
appellants also sought recovery against Valentine. Appellants contend that material
issues of fact exist as to whether Valentine committed an intentional tort against
Bond. Therefore, urge appellants, summary judgment was improperly granted in
favor of Valentine.
       {¶ 29} In Fyffe v. Jeno's, Inc. (1991), 

59 Ohio St.3d 115

, 

570 N.E.2d 1108

,
paragraph one of the syllabus, this court held that in order to prove that an
intentional tort was committed by an employer against an employee, the employee
must prove "(1) knowledge by the employer of the existence of a dangerous
process, procedure, instrumentality or condition within its business operation; (2)
knowledge by the employer that if the employee is subjected by his employment to
such dangerous process, procedure, instrumentality or condition, then harm to the
employee will be a substantial certainty; and (3) that the employer, under such
circumstances, and with such knowledge, did act to require the employee to
continue to perform the dangerous task." Further, to avoid summary judgment, it
is incumbent upon the employee to set forth specific facts which demonstrate that
there is a genuine issue of whether the employer had committed an intentional tort.
Van Fossen v. Babcock & Wilson Co. (1988), 

36 Ohio St.3d 100

, 

522 N.E.2d 489

,
paragraph seven of the syllabus.
       {¶ 30} We believe that appellants have not demonstrated the existence of a
genuine issue of material fact as to the second prong of the intentional tort test.
Specifically, appellants have not set forth specific facts that would permit
reasonable minds to conclude Valentine knew that Bond's injuries were
substantially certain to occur.
       {¶ 31} Appellants contend that Bond's injuries were foreseeable and
substantially certain to occur because Bond was required to "perform his job duties




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within a few feet of the unguarded floor opening." However, we agree with the
trial court and court of appeals wherein both courts essentially concluded that
Bond's injuries were not the probable consequence of any action or inaction on the
part of Valentine. The court of appeals, in addressing appellants' assertions, stated
that "[t]he evidence here does not lead to the conclusion that Valentine in fact
intended to produce Bond's resulting injuries. Valentine did not set procedural rules
mandating where Bond was to place his workpile nor was Bond required to access
the workpile by walking into the narrow space between the pile and the floor
opening. Further, a diagram of Bond's work area before the trial court suggests that
the workpile could have been placed on another part of the landing, away from the
danger of the unguarded opening." While "intended" is not the standard for
establishing an intentional tort, the court of appeals was correct in its general
finding.
       {¶ 32} Accordingly, we find that summary judgment was properly entered
in favor of Valentine. The judgment of the court of appeals is affirmed in all
respects.
                                                                Judgment affirmed.
       RESNICK, F.E. SWEENEY, PFEIFER and FAIN, JJ., concur.
       MOYER, C.J., and WRIGHT, J., concur separately.
       MIKE FAIN, J., of the Second Appellate District, sitting for COOK, J.
                              __________________
       WRIGHT, J., concurring.
       {¶ 33} The author of the majority opinion deserves praise for refining the
test announced in Cafferkey v. Turner Constr. Co. (1986), 

21 Ohio St.3d 110

, 21
OBR 416, 

488 N.E.2d 189

, so as to make it clear that a general contractor or an
owner will not be liable for exercising its supervisory capacity over another
independent contractor. Supervision of a construction job, i.e., coordinating work
and directing contractors to perform tasks in accordance with contract




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specifications, has never constituted "active participation" in the work of an
independent contractor. The very nature of the construction business requires a
general contractor or the owner of a construction site to "supervise" a construction
job.
       {¶ 34} On the other hand, actively directing the manner in which an
inherently dangerous job is performed may subject a general contractor or an owner
to liability. See, e.g., Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 

6 Ohio St.3d 206

, 6 OBR 259, 

452 N.E.2d 326

.
       MOYER, C.J., concurs in the foregoing concurring opinion.
                              __________________




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