Kucharski v. Natl. Eng. & Contracting Co.

1994 Ohio 320

• Court: Ohio Supreme Court
• Decided: June 14, 1994
• Docket: 1993-0225
• Status: Published

Opinion

10 OPINIONS OF THE SUPREME COURT OF OHIO

The full texts of the opinions of the Supreme Court of Ohio

are being transmitted electronically beginning May 27, 1992,

pursuant to a pilot project implemented by Chief Justice Thomas

J. Moyer.

Please call any errors to the attention of the Reporter’s

Office of the Supreme Court of Ohio. Attention: Walter S.

Kobalka, Reporter, or Deborah J. Barrett, Administrative

Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010. Your

comments on this pilot project are also welcome.

NOTE: Corrections may be made by the Supreme Court to the

full texts of the opinions after they have been released

electronically to the public. The reader is therefore advised to

check the bound volumes of Ohio St.3d published by West

Publishing Company for the final versions of these opinions. The

advance sheets to Ohio St.3d will also contain the volume and

page numbers where the opinions will be found in the bound

volumes of the Ohio Official Reports.

Kucharski, Appellant, v. National Engineering & Contracting

Company, Appellee.

[Cite as Kucharski v. Natl. Eng. & Contracting Co. (1994), ___

Ohio St.3d ___.]

Torts — R.C. 4101.13 may not 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.

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. (Cafferkey v. Turner Constr. Co. [1986], 21 Ohio

St.3d 110, 21 OBR 416, 488 N.E.2d 189, approved and

followed.)

(No. 93-225 — Submitted February 2, 1994 — Decided June 15,

1994.)

Appeal from the Court of Appeals for Cuyahoga County, No. 62273.

Appellee National Engineering & Contracting Company

(“National”) is a general construction firm hired by the city of

North Royalton to build a new settling tank for North Royalton’s

wastewater treatment plant. As a primary contractor, National

reported directly to the city through the engineering design firm

on the project, Finkbeiner, Pettis & Strout, Ltd. (“Finkbeiner”).

Appellant, Thomas G. Kucharski, is an electrician employed

by Precision Electric, Inc. (“Precision”). Precision was hired

to perform electrical work on the North Royalton project and was

also a primary contractor reporting directly to Finkbeiner.

The settling tank that National constructed is a large in-

ground concrete structure approximately fourteen feet wide and

ranging from twelve to seventeen feet deep. It is open on top

and rises about six feet above the ground. Along one end of the

tank National constructed a large concrete deck, flush with the

top, that stretched out over the opening. In order to build the

deck, National erected a scaffold to support the temporary wooden

forms into which the concrete for the deck would be poured. The

scaffold was also erected far enough into the tank to support a temporary wooden platform from which National’s employees could

pour and finish the concrete deck. Because the back edge of this

platform extended out over the tank, National also installed

wooden guardrails.

When the concrete deck was finished, the scaffolding and

platform were removed by National’s employees on April 21, 1988,

at the direction of National, in order to perform further work on

the tank.

On May 6, 1988, representatives from Finkbeiner, National

and Precision held their weekly meeting to discuss contracting

issues. In order to coordinate the scheduling of certain tasks

between National and other subcontractors, it was determined that

Precision needed to perform its electrical installation on the

new settling tank deck between May 6 and May 24, 1988.

Four days later, on May 10, 1988, Kucharski, while

performing the electrical work, fell into the tank from the

elevated concrete deck. A fitting he was trying to bend broke

off in his hand and caused him to stumble backward, where he

tripped over some planks and fell into the tank, injuring

himself. Earlier that day, Kucharski and his supervisor had

inspected the work area. Kucharski’s supervisor had observed

that there was no safety railing, but because the deck was large

he considered it safe and did not think the working conditions

required the use of a safety belt. The record reflects that

Kucharski agreed. National did not supervise or actively

participate in the work to be accomplished by Precision.

National subsequently had permanent guardrails installed

around the settling tank. Kucharski filed this negligence action for compensatory and

punitive damages in the Cuyahoga County Common Pleas Court,

alleging that when National disassembled the temporary wooden

platform and railing, it removed a safety device, thereby

violating R.C. 4101.13.

Following Kucharski’s case in chief, National moved for a

directed verdict. The trial court granted the motion as to

punitive damages, but denied it as to the negligence claim.

Although the jury awarded Kucharski $550,000 in damages, it also

found him twenty percent negligent. Thus, the trial court

reduced Kucharski’s award to $440,000. The trial court denied

National’s motion for judgment notwithstanding the verdict or, in

the alternative, for a new trial, and refused to determine and

subtract collateral benefits from the award. The trial court

also denied Kucharski’s motion for relief from judgment on the

punitive damages ruling. Both parties appealed.

The court of appeals reversed the trial court’s decision,

holding that it erred as a matter of law in denying National’s

motions for directed verdict and judgment notwithstanding the

verdict. The appeals court noted first that Kucharski had

conceded that R.C. 4101.11 and 4101.12 did not apply to the facts

of this case. It agreed and concluded that National “could not

properly be found liable under those statutes because of the lack

of a contractual relationship between the parties, the lack of

participation by National in Kucharski’s work, and the obvious

and inherent nature of the risk.” The court of appeals then went

on to hold that National cannot be liable to Kucharski under R.C.

4101.13 because National “did not remove a safeguard furnished

for use on the concrete deck that Kucharski fell off of.” The cause is now before this court pursuant to the allowance

of a motion to certify the record.

__________________

Endress & Endress Co., L.P.A., Richard R. Endress and

Jeffrey C. Endress, for appellant.

Arter & Hadden and Irene C. Keyse-Walker, for appellee.

Schottenstein, Zox & Dunn and Roger L. Sabo, urging

affirmance for amicus curiae, Ohio Contractors Association.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and

Marc J. Jaffy, urging reversal for amicus curiae, Ohio AFL-CIO.

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

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 employees, 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

Cafferkey 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 Cafferkey 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 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.) Id. at syllabus. See, also,

Wellman v. East 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

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

participate 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 employer

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.

Moyer, 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,

siting for F.E. Sweeney, J.

FOOTNOTES:

1. R.C. 4101.11 states:

“Every employer shall furnish employment which is safe for

the employees engaged therein, shall furnish a place of

employment which shall be safe for the employees therein and for

frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and

obey orders, and prescribe hours of labor reasonably adequate to

render such employment and place of employment safe, and shall do

every other thing reasonably necessary to protect the life,

health, safety, and welfare of such employees and frequenters.”

2. R.C. 4101.12 states:

“No employer shall require, permit, or suffer any employee

to go or be in any employment or place of employment which is not

safe, and no such employer shall fail to furnish, provide, and

use safety devices and safeguards, or fail to obey and follow

orders or to adopt and use methods and processes reasonably

adequate to render such employment and place of employment safe.

No employer shall fail to do every other thing reasonably

necessary to protect the life, health, safety, and welfare of

such employees or frequenters. No such employer or other person

shall construct, occupy, or maintain any place of employment that

is not safe.”

Pfeifer, J., dissenting. The jury in this case, in

responding to the jury interrogatories, found by a preponderance

of the evidence that the defendant, National Engineering &

Contracting Company, was negligent and that its negligence was a

proximate cause of the plaintiff’s injury. The majority too

easily shrugs off those findings.

The majority, while finding that National could not be held

liable for violating R.C. 4101.13, does recognize that National

still owed Kucharski the duty of ordinary care. The jury may

well have found that that duty was breached. The jury was

instructed as to ordinary care as well as to R.C. 4101.13.

Evidence was introduced that National had left planks stacked near the edge of the concrete deck from which Kucharski fell.

Kucharski testified that he had tripped over those planks before

falling over the edge. The jury may well have concluded that

National was negligent for having left the planks in that

location.

The jury interrogatories did not ask the jury to state why

they found National negligent. Because there is a theory in

addition to R.C. 4101.13 by which National could be found

negligent, and since the jury did find negligence, this case

should have been returned for retrial, at the very least.

Douglas, J., concurs in the foregoing dissenting opinion.