Sopkovich v. Ohio Edison Co.

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 — “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 — 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.” (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, 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.” (Emphasis added.) In Schwarz, the General Electric Company (“GE”) hired an independent contractor, Duffy Construction Corporation (“Duffy”), to perform structural work at GE’s plant in Lockland, Ohio. As an incidental part of the work, Duffy was required to unload steel beams using a crane with steel cables attached. The beams were to be unloaded and swung for placement directly underneath a high638 voltage electric power line. GE designated the site for the unloading of the beams, but the job operation was entirely under the control of Duffy. The plaintiff, an iron worker employed by Duffy, was injured when the steel cables of the crane swung too close to the power line. The accident was caused by the negligence of the crane operator, who was also employed by Duffy. Prior to the job operation, GE had warned Duffy of the dangers associated with the power line. The job operation was recognized as a dangerous one by everyone involved in the operation except the plaintiff, who claimed that he had not seen the power line or been advised of its existence. In Schwarz, we applied the rule of Wellman to uphold the trial court’s decision granting a directed verdict in favor of GE. We rejected a claim of liability predicated on GE’s alleged failure to notify the plaintiff and to protect him from dangers, finding that GE had not “actually participated” in the job operation, was not in control of the work area, had notified Duffy of the dangers, and that the job operation had been entirely under the supervision and control of the independent contractor. Id. at 359-361, 56 O.O. at 321-322, 126 N.E.2d at 910. Under those circumstances, we found that the general rule of nonliability set forth in Wellman applied to the facts of the case. Thus, GE owed no duty to protect the plaintiff from danger or to directly warn him of the inherent risks associated with the job operation. In Hirschbach, 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.) 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 accident, Hirschbach and several fellow employees had 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: “[A] jury could reasonably conclude that CG & E had sole control over the safety features necessary to eliminate the hazard. By denying the [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 — 639 — 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. The factor distinguishing Wellman from Hirschbach is that in Hirschbach, the landowner who had engaged the independent contractor had actually participated in the specific job operation by retaining and exercising control over the work area and; thus, the manner in which the work was performed. Specifically, CG & E, as the property owner, would not permit the equipment to be moved, although moving the equipment was necessary for the job to be safely conducted. In comparison, the party who hired the independent contractor in Wellman had inspectors at the job site to ensure that the job was completed according to specifications, but the inspectors did not engage in any conduct that could constitute actual participation in the performance of the job operation. In cases decided after the Hirschbach decision, we were called upon to address the question whether a general contractor, simply by virtue of its general supervisory capacity over a construction site, owes a duty of care to the employees of an independent subcontractor engaged in inherently dangerous work. Such was the nature of the inquiry in both Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, 21 OBR 416, 488 N.E.2d 189, and Bond, 72 Ohio St.3d 332, 650 N.E.2d 416. However, whereas the analysis in Hirschbach had turned on the question of the property owner’s control over the work area of an independent contractor’s employees, the active-participation analysis in Cafferkey and Bond focused on the question of a general contractor’s control over the work activities of an independent subcontractor’s employees. In Cafferkey, syllabus, 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.) In Cajferkey, 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 metal casing. While in the hole, one of the employees struck his flint to light a torch. Consequently, an explosion occurred, and both employees were severely injured and later died. By contract, and by virtue of certain portions of the general contractor’s safety manual, the general contractor had retained control over safety procedures at the project. The general contractor, however, was not informed of the subcontractor’s decision to allow its employees to go into the hole. — 640 — In Cafferkey, we compared the factual situation at issue in that case with the factual setting of Hirschbach and concluded that, as a matter of law, the general contractor in Cafferkey owed no duty of care to the decedents. We explained that 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. We also addressed the issue of the general contractor’s retention of control over safety procedures at the job site, but noted that “Turner [the general contractor] had an obvious interest in safety and it insisted that its own employees as well as the employees of subcontractors carry on their work activities in as safe a manner as possible. Nevertheless, this concern for safety, which was evidenced in a variety of ways, does not constitute the kind of active participation in Millgard’s [the independent subcontractor’s] work that is legally required to create a duty of care extending from Turner to Millgard’s employees.” (Emphasis added.) Id. at 113, 21 OBR at 418, 488 N.E.2d at 192. It is clear from a reading of Cafferkey that the focus of the analysis in that case revolved around the concept of active participation in the work activities of the independent subcontractor’s employees. In Bond, 72 Ohio St.3d 332, 650 N.E.2d 416, syllabus, we applied the Cafferkey analysis and defined “active participation” in the following terms: “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.)” (Emphasis added.) As was the case in Cafferkey, the analysis in Bond focused almost entirely on the concept of active participation in the work activities of the independent subcontractor. However, the entire point of the Bond decision was to refine our holding in Cafferkey and to cut a definitive line between those situations in which a general contractor can be said to have “actively participated” in the work of an independent subcontractor, and those situations in which a general contractor merely exercises a general supervisory role over the construction project. In Bond, Howard Construction Company (“Howard”) was a general contractor hired by General. Cinema Corporation to construct a theater complex. Howard contracted with Valentine Construction, Inc. (“Valentine”), an independent sub — 641 — contractor, to complete the masonry work for the construction project. Bond, a Valentine employee, was constructing a wall at the site using materials that had been placed near an unguarded opening on the second floor of the project. The materials had been placed in that location by a fellow employee. When Bond went to the area to retrieve materials to build the wall, he fell through the unguarded opening and was severely injured. On the basis of these facts, we upheld a grant of summary judgment in favor of Howard, stating: “We believe, under the circumstances of this ease, 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. “A construction site is inherently a dangerous setting. * * * 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. “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. “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.” (Emphasis added.) Bond, 72 Ohio St.3d at 336-337, 650 N.E.2d at 420-421. Michaels, 72 Ohio St.3d 475, 650 N.E.2d 1352, was decided shortly after our decision in Bond. However, Michaels, unlike Cafferkey and Bond, involved issues — 642 — concerning the duty of care owed by a landowner to the employees of an independent contractor. In Michaels, Ford Motor Company hired Lathrop Contracting as a general contractor to construct a paint building at Ford’s plant in Avon, Ohio. Doane Electric was a subcontractor on the construction site. Michaels was an employee of Doane Electric. While Michaels was clearing an area on the second floor of the construction site, he fell through an unguarded hole in the floor that had been cut by Lathrop employees and that had been covered by a loose piece of plywood. Prior to the accident, an employee of Ford had instructed Lathrop’s assistant superintendent to cut holes in the floor pursuant to specifications in the construction contract between Lathrop and Ford. Lathrop’s assistant superintendent had objected to cutting the holes because of safety concerns, but Ford had insisted that the holes be cut and then covered. Pursuant to its contract with Ford, Lathrop was responsible for maintaining barricades and guard rails around the floor openings. In Michaels, a plurality of this court analyzed our cases from Wellman through Bond and found that Ford, the owner of the construction site, owed no duty of care to Michaels because (1) Ford had not “actively participated” under the definition of “active participation” set forth in Bond, and (2) Ford had retained no custody or control over the work area where the injury occurred. Specifically, in Michaels, the plurality stated: “In the case before us, Ford exercised its proper supervisory role by monitoring work progress at the construction site, interpreting plans and specifications, and ensuring that construction was completed according to required specifications. As part of its supervision, Ford directed Lathrop, the general contractor, to cut floor openings as required by contract specifications. Applying the Bond definition of ‘actively participated,’ the ‘activity which resulted in the injury’ to Michaels and the ‘critical act’ that led to Michaels’ injury was the failure to adequately safeguard the hole through which Michaels fell. Ford neither directed Lathrop as to the manner in which the latter should safeguard the floor opening nor gave or denied permission with regard to the way in which the hole was covered. Much to the contrary, Ford retained no custody or control over the area where Lathrop cut the hole through which Michaels subsequently fell. Nor did Ford retain control over the means or manner of Lathrop’s or Doane Electric’s performance of any of their duties at the construction site. Cf. Hirschbach, supra (where the owner directed the manner in which an independent contractor performed an inherently dangerous job).” Michaels at 479, 650 N.E.2d at 1355-1356. As is clear from Hirschbach, and from cases preceding and postdating Hirschbach (see, e.g., Schwarz and Michaels), a property owner’s retention of possession — 643 — and control over the work area of an independent contractor’s employees has always been an integral part of the active-participation analysis, where, as here, the owner’s liability is at issue. Moreover, as is evident from a careful review of the foregoing authorities, active participation giving rise to a duty of care may be found to exist where a property owner either directs or exercises control over the work activities of the independent contractor’s employees, or where the owner retains or exercises control over a critical variable in the workplace. There is no question that painting a partially de-energized substation is inherently dangerous and, in this case, Morakis and Lexie were aware of the dangers associated with that work. Additionally, the evidentiary materials clearly demonstrate that Ohio Edison did not participate in the actual work activities of the independent contractor. Ohio Edison did not direct or control any of the work activities of Morakis Sons or the job activities of the individual painters. At most, Ohio Edison’s representative at the site exercised a general supervisory role over the painting project to ensure that the painting work was properly completed. Edison’s employee had virtually no contact with the painting crew except to inform them of the location of the activated and de-activated lines. Moreover, Ohio Edison neither granted nor denied permission with respect to any aspect of the job activities of the independent contractor. Ohio Edison did, however, retain and exercise exclusive control over a critical variable in the working environment, ie., the de-activation of specific electrical conductors in the work area. In this regard, the court of appeals concluded that a question remained as to whether Ohio Edison owed a duty of care to Lexie stemming from Ohio Edison’s retention and exercise of such control. We agree with the court of appeals’ analysis of the issue. Specifically, we believe that the evidence in this case supports a finding of active participation and, thus, a duty extending from Ohio Edison to Lexie based upon Ohio Edison’s retention and exercise of control over a critical aspect of Lexie’s working environment. This is so regardless of the fact that Ohio Edison did not actively participate in the specific job activities of the independent contractor’s employees. We emphasize, however, that any duty Ohio Edison may have owed to Lexie is not absolute. The reason, of course, is that Ohio Edison’s participation in this case was clearly limited to the tasks of de-electrification of certain conductors in the work area and the dissemination of correct information concerning which conductors were energized and which had been de-activated. Therefore, as the court of appeals correctly recognized, Ohio Edison’s liability (if any) may only be predicated on a breach of a specific duty that Ohio Edison undertook to perform, ie., the tasks of de-electrification and communication. Accordingly, if Ohio Edison properly de-activated the conductors it had promised to de-activate, and accurately communicated with Morakis and the painters as to which conductors were activated and which were not, Ohio Edison would have discharged any duty — 644 — of care owed to Lexie. Conversely, if Ohio Edison failed to de-activate the conductors it had promised to de-activate, or misinformed Morakis or Lexie as to which conductors were de-activated, liability could attach for Ohio Edison’s failure to properly discharge a specific duty it had undertaken to perform, assuming that such failure was the proximate cause of Lexie’s injuries.3 For the foregoing reasons, we affirm the judgment of the court of appeals. Judgment affirmed. Resnick, F.E. Sweeney, Pfeifer and Wolff, JJ., concur. Moyer, C.J., and Lundberg Stratton, J., concur in part and dissent in part. William H. Wolff, Jr., J., of the Second Appellate District, sitting for Cook, J. Footnotes [3] We note, in passing, that the evidentiary materials strongly suggest that Ohio Edison did deactivate specific conductors in the work area and that it disseminated correct information to Morakis and to the painters concerning which conductors were energized and which had been deactivated, Further, the evidence strongly indicates that the cause of Lexie’s injuries was that Lexie mistakenly entered into an area that was known to be an energized area. However, the sole issue in this appeal is whether the evidence was sufficient to survive summary judgment on the question of duty of care. The question whether Ohio Edison breached a duty of care, and the question whether such a breach (if any) was the proximate cause of Lexie’s injuries, are matters to be resolved at trial or pursuant to a proper motion for summary judgment on the issue of breach of duty and/or proximate causation.