Sopkovich v. Ohio Edison Co.

693 N.E.2d 233, 81 Ohio St. 3d 628
Ohio Supreme Court·Decided May 13, 1998·No. No. 97-317·Published·Cited by 74 cases

Opinions

Douglas, J.

The question that has been certified for our consideration is: “For purposes of determining when a property owner owes a duty of care to an employee of an independent contractor, does the property owner ‘actively participate’ in the performance of the employee’s work by exercising exclusive control over an aspect of the employee’s working environment?” . For the reasons that follow, we answer the certified question with a qualified “yes.”

The court of appeals held that for purposes of determining whether a property owner owes a duty of care to the employees of an independent contractor, “active participation” includes situations in which a property owner exercises control over the work activities of the independent contractor, and also includes situations in which a property owner exercises control over a critical aspect of the employee’s place of employment or “working environment.” We agree with the court of appeals’ conclusion in this regard. Applying the standards of summary judgment, the court of appeals held, and we agree, that Ohio Edison had no duty of care relating to its alleged control over Lexie’s work activities as a painter, since those activities were directed exclusively by Morakis Sons. Thus, summary judgment was appropriate in that limited respect. However, the court of appeals also held, and we agree, that Ohio Edison was not entitled to summary judgment on the entire “duty of care issue” because a duty could have arisen from Ohio Edison’s retention and exertion of control over a critical variable in the working environment, i.e., the de-electrification of specific electrical conductors in the work area.

I

The Conflict

DeHass involved a situation where DeHass, an employee of Morakis Sons, was injured by high voltage electricity while painting an electric substation owned and operated by Ohio Edison. On facts that are strikingly similar to the facts in the case at bar, the court of appeals in DeHass upheld a grant of summary judgment in favor of Ohio Edison on the question of active participation, stating:

“DeHass contends that Ohio Edison contracted with Morakis Sons as an independent contractor, but then actively participated in the job operation. Had Ohio Edison directly participated in the painting operations of Morakis Sons, Ohio Edison could have been held responsible for DeHass’ injury, if it could have eliminated the hazard which caused the injury. * * *

[636]*636“Review of the record indicates that the Ohio Edison substation electrician switched the electrical load at the substation and informed Jim Morakis and his crew which equipment was energized and which was de-energized. He performed no other functions at the substation while employees of Morakis Sons painted the substation. Jim Morakis confirmed that the electrician was not supervising the Morakis Sons’ employees nor participating in the painting work. * * * DeHass introduced no evidence of any participatory conduct. Testimony indicated that Ohio Edison had sole control over the de-energization of equipment at the substation; Morakis Sons controlled all aspects of the painting work.” (Emphasis added.) DeHass, Summit App. No. 15970, unreported, at 6-7.

We have previously entered a finding pursuant to S.Ct.Prac.R. IV(2)(C) that DeHass is in conflict with the decision of the court of appeals in this case on the question that has been certified for our consideration. 78 Ohio St.3d 1454, 677 N.E.2d 815. However, upon closer examination, we now find that the decision of .the court of appeals in the case at bar and the decision in DeHass are not in conflict. Specifically, the DeHass court apparently limited its active-participation analysis to the question of whether Ohio Edison had participated in the actual work activities of the independent contractor’s employees. Conversely, the court of appeals in the case before us went one step further by exploring the possibility that a duty was created by Ohio Edison’s retention and exercise of control over one critical aspect of the working environment — the de-activation of certain electrical lines in the work area. The court in DeHass apparently never explored that particular issue. Thus, it appears that DeHass does not directly conflict with the judgment of the court of appeals in this case. Nevertheless, since the certified question raises an important issue that has been fully briefed and argued before this court, we now move to address the question as if there were a conflict between the two appellate districts.

II

The Merits

We begin our analysis with a review of our prior decisions involving the duties and responsibilities owed by one who engages the services of an independent contractor to perform an inherently dangerous task.

In Wellman, 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, paragraphs one and two of the syllabus, this court set forth the following general rule pertaining to the duty owed by one who engages an independent contractor to perform inherently dangerous work:

“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 [637]*637work, 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.” (Emphasis added.)

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 according to 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.

Less than two years after the Wellman decision, this court held, in Schwarz v. Gen. Elec. Realty Corp. (1955), 163 Ohio St. 354, 56 O.O. 319, 126 N.E.2d 906, paragraphs one and three of the syllabus:

“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.” (Emphasis added.)

“3. Where the owner of premises employs an independent contractor to do work thereon,

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Sopkovich v. Ohio Edison Co., 693 N.E.2d 233, 81 Ohio St. 3d 628 (Ohio 1998).

693 N.E.2d 233 (Sopkovich v. Ohio Edison Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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