Kucharski v. National Engineering & Contracting Co.

Ohio Supreme Court

Kucharski v. National Engineering & Contracting Co.

633 N.E.2d 515, 69 Ohio St. 3d 430

CourtOhio Supreme Court

DecidedJune 15, 1994

DocketNo. 93-225

StatusPublished

Cited by18 cases

This text of 633 N.E.2d 515 (Kucharski v. National Engineering & Contracting Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kucharski v. National Engineering & Contracting Co., 633 N.E.2d 515, 69 Ohio St. 3d 430 (Ohio 1994).

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Opinions

Wright, J.

The narrow issue we will decide in this matter is whether R.C. 4101.13 may be used as the basis of a negligence suit by an employee of one independent contractor against a second independent contractor working on a common building site, when the parties lack both a contractual relationship and control of each other’s employees. We hold that it may not.

Kucharski argues that because National employees removed the temporary guardrails, National may properly be found liable for negligence pursuant to R.C. 4101.13. This argument has no merit.

R.C. 4101.13 states:

“No employee shall remove, displace, damage, destroy, or carry off any safety device or safeguard furnished or provided for use in any employment or place of employment, or interfere in any way with the use thereof by any other person. No employee shall interfere with the use of any method or process adopted for the protection of any employee in such employment or place of employment, or frequenter of such place of employment, or fail to follow and obey orders and to do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.” (Emphasis added.)

R.C. 4101.13 and its companion provisions, R.C. 4101.11¹ and 4101.12,² are commonly referred to as the “frequenter” statutes. Originally enacted to benefit [433]*433employees, these statutes are “no more than a codification of the common-law duty owed by the owner or occupier of premises to business invitees to keep his premises in a reasonably safe condition and to give warnings of latent or concealed perils of which he has, or should have, knowledge.” Westwood v. Thrifty Boy Super Markets, Inc. (1972), 29 Ohio St.2d 84, 86, 58 O.O.2d 154, 156, 278 N.E.2d 673, 675. The subsequent passage of the Ohio Workers’ Compensation Act, which protected covered employers from damage suits brought by employees injured on the job, rendered these statutes largely obsolete. Ford Motor Co. v. Tomlinson (C.A.6, 1956), 229 F.2d 873, 879. They continue to be used, however, by injured employees of subcontractors who seek damages, in addition to workers’ compensation benefits, from the property owners, or contractors in privity with their employers, who fail to keep the property safe from hazards for “frequenters.”

We defined exactly what duty of care a general contractor owes to its subcontractors in Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, 21 OBR 416, 488 N.E.2d 189. The Cajferkey case involved the decision of the subcontractor to lower two employees into a two-hundred-foot-deep caisson hole, despite an earlier detection of methane gas there, to burn off with a cutting torch a portion of a twisted metal casing. The general contractor, which retained supervisory authority over its subcontractors, was not informed about the subcontractor’s decision. An explosion occurred in the hole when one of the employees struck a flint to light his torch. Both were severely burned and later died as a result of their injuries. Affirming a grant of summary judgment in favor of the defendant general contractor, this court held that a general contractor must actively participate in a subcontractor’s work before it becomes susceptible to liability for injuries sustained by the subcontractor’s employees who were engaged in inherently dangerous work. A general contractor does not owe a duty of care to the employees of a subcontractor “merely by virtue of its supervisory capacity.” Id. at syllabus.

The Cajferkey decision is supported by Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326. In Hirschbach we held [434]*434that “[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.) Id. at syllabus. See, also, Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, and Davis v. Charles Shutrump & Sons Co. (1942), 140 Ohio St. 89, 23 O.O. 299, 42 N.E.2d 663.

We find the preceding authority applicable to the case under consideration today. Although Hirschbach was based on the duties of an employer found in R.C. 4101.11 and 4101.12, there is no question that it is appropriate to extend that analysis to the duties of an employee under R.C. 4101.13. If a general contractor owes no duty of care to a subcontractor pursuant to R.C. 4101.11 and 4101.12 because it does not actively participate in the subcontractor’s work, it follows then that the general contractor owes no duty of care to the subcontractor under R.C. 4101.13, which prescribes the duties of employees. We are satisfied that when two or more independent contractors are engaged in work on the same premises, it is the duty of each contractor, in prosecuting its work, to use ordinary and reasonable care not to cause injuries to the employees of another contractor. An independent contractor who lacks a contractual relationship with a second independent contractor owes no affirmative duty beyond that of ordinary care to the employees of the second contractor, where the first contractor does not supervise or actively participate in the second contractor’s work.

Both National and Precision reported directly to Finkbeiner. There was no privity between National and Precision. They were coequals. National did not control, supervise or actively particijpate in any aspect of the work performed by Precision’s employees. Furthermore, Kucharski, along with his supervisor, surveyed the concrete deck and determined it was large enough to be safe. Kucharski admits that he was aware of the depth of the tank and the lack of guardrails on the deck. It was Kucharski’s supervisor who decided Kucharski did not need to wear a safety belt. As noted above, Kucharski concurred in the view. By contrast, National employees who performed work on the concrete deck after the scaffolding and railing were removed were required by National to wear safety equipment, including belts.

Kucharski conceded that National owed no duty of care to him under R.C. 4101.11 and 4101.12. Therefore, in light of the preceding analysis, we find as a matter of law that National owed no duty of care to Kucharski and could not properly be found, liable under R.C. 4101.13. National was not Kucharski’s [435]*435employer and exercised no control over him. No contractual relationship existed between the parties and Kucharski admitted that he was aware of the fall hazard. R.C. 4101.13 refers to the duties of employees, not the employer, and should not have been applied to this case.

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Wright, J.

The narrow issue we will decide in this matter is whether R.C. 4101.13 may be used as the basis of a negligence suit by an employee of one independent contractor against a second independent contractor working on a common building site, when the parties lack both a contractual relationship and control of each other’s employees. We hold that it may not.

Kucharski argues that because National employees removed the temporary guardrails, National may properly be found liable for negligence pursuant to R.C. 4101.13. This argument has no merit.

R.C. 4101.13 states:

“No employee shall remove, displace, damage, destroy, or carry off any safety device or safeguard furnished or provided for use in any employment or place of employment, or interfere in any way with the use thereof by any other person. No employee shall interfere with the use of any method or process adopted for the protection of any employee in such employment or place of employment, or frequenter of such place of employment, or fail to follow and obey orders and to do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.” (Emphasis added.)

R.C. 4101.13 and its companion provisions, R.C. 4101.11¹ and 4101.12,² are commonly referred to as the “frequenter” statutes. Originally enacted to benefit [433]*433employees, these statutes are “no more than a codification of the common-law duty owed by the owner or occupier of premises to business invitees to keep his premises in a reasonably safe condition and to give warnings of latent or concealed perils of which he has, or should have, knowledge.” Westwood v. Thrifty Boy Super Markets, Inc. (1972), 29 Ohio St.2d 84, 86, 58 O.O.2d 154, 156, 278 N.E.2d 673, 675. The subsequent passage of the Ohio Workers’ Compensation Act, which protected covered employers from damage suits brought by employees injured on the job, rendered these statutes largely obsolete. Ford Motor Co. v. Tomlinson (C.A.6, 1956), 229 F.2d 873, 879. They continue to be used, however, by injured employees of subcontractors who seek damages, in addition to workers’ compensation benefits, from the property owners, or contractors in privity with their employers, who fail to keep the property safe from hazards for “frequenters.”

We defined exactly what duty of care a general contractor owes to its subcontractors in Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, 21 OBR 416, 488 N.E.2d 189. The Cajferkey case involved the decision of the subcontractor to lower two employees into a two-hundred-foot-deep caisson hole, despite an earlier detection of methane gas there, to burn off with a cutting torch a portion of a twisted metal casing. The general contractor, which retained supervisory authority over its subcontractors, was not informed about the subcontractor’s decision. An explosion occurred in the hole when one of the employees struck a flint to light his torch. Both were severely burned and later died as a result of their injuries. Affirming a grant of summary judgment in favor of the defendant general contractor, this court held that a general contractor must actively participate in a subcontractor’s work before it becomes susceptible to liability for injuries sustained by the subcontractor’s employees who were engaged in inherently dangerous work. A general contractor does not owe a duty of care to the employees of a subcontractor “merely by virtue of its supervisory capacity.” Id. at syllabus.

The Cajferkey decision is supported by Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326. In Hirschbach we held [434]*434that “[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.) Id. at syllabus. See, also, Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, and Davis v. Charles Shutrump & Sons Co. (1942), 140 Ohio St. 89, 23 O.O. 299, 42 N.E.2d 663.

We find the preceding authority applicable to the case under consideration today. Although Hirschbach was based on the duties of an employer found in R.C. 4101.11 and 4101.12, there is no question that it is appropriate to extend that analysis to the duties of an employee under R.C. 4101.13. If a general contractor owes no duty of care to a subcontractor pursuant to R.C. 4101.11 and 4101.12 because it does not actively participate in the subcontractor’s work, it follows then that the general contractor owes no duty of care to the subcontractor under R.C. 4101.13, which prescribes the duties of employees. We are satisfied that when two or more independent contractors are engaged in work on the same premises, it is the duty of each contractor, in prosecuting its work, to use ordinary and reasonable care not to cause injuries to the employees of another contractor. An independent contractor who lacks a contractual relationship with a second independent contractor owes no affirmative duty beyond that of ordinary care to the employees of the second contractor, where the first contractor does not supervise or actively participate in the second contractor’s work.

Both National and Precision reported directly to Finkbeiner. There was no privity between National and Precision. They were coequals. National did not control, supervise or actively particijpate in any aspect of the work performed by Precision’s employees. Furthermore, Kucharski, along with his supervisor, surveyed the concrete deck and determined it was large enough to be safe. Kucharski admits that he was aware of the depth of the tank and the lack of guardrails on the deck. It was Kucharski’s supervisor who decided Kucharski did not need to wear a safety belt. As noted above, Kucharski concurred in the view. By contrast, National employees who performed work on the concrete deck after the scaffolding and railing were removed were required by National to wear safety equipment, including belts.

Kucharski conceded that National owed no duty of care to him under R.C. 4101.11 and 4101.12. Therefore, in light of the preceding analysis, we find as a matter of law that National owed no duty of care to Kucharski and could not properly be found, liable under R.C. 4101.13. National was not Kucharski’s [435]*435employer and exercised no control over him. No contractual relationship existed between the parties and Kucharski admitted that he was aware of the fall hazard. R.C. 4101.13 refers to the duties of employees, not the employer, and should not have been applied to this case.

We hold, therefore, that the trial court erred as a matter of law when it denied National’s motions for directed verdict and judgment notwithstanding the verdict. The appeals court was correct in reversing that decision.

Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Mover, C.J., A.W. Sweeney and Resnick, JJ., concur. Douglas and Pfeifer, JJ., dissent with opinion. Mahoney, J., dissents. Joseph E. Mahoney, J., of the Eleventh Appellate District, sitting for F.E. Sweeney, J.

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633 N.E.2d 515, 69 Ohio St. 3d 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kucharski-v-national-engineering-contracting-co-ohio-1994.

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