COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59759 PATRICK GALLAGHER, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : CITY OF CLEVELAND, ET AL. : OPINION : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 139,272. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: William P. Lang, Esq. 33399 Walker Road P.O. Box 108 Avon Lake, OH 44012-0108 For Defendants-Appellees: James Millican, Esq. 1280 West 3rd Street Cleveland, OH 44113 -2- MATIA, C.J.: Plaintiffs-appellants, Patrick Gallagher and Karen Gallagher filed their original complaint in the Cuyahoga County Court of Comon Pleas pursuant to a personal injury incurred by appellant Patrick while working at the Cleveland Convention Center. Appellants filed suit against appellee City of Cleveland and appellee Marbro Construction Company along with other defendants. The trial court granted appellees City of Cleveland's and Marbro Construction Company's motions for summary judgment. All other defendants were dismissed. It is from these summary judgments plaintiffs-appellants appeal. STATEMENT OF THE FACTS On October 27, 1987, appellant Patrick Gallagher was an employee of AC&S Insulation, a subcontractor of Four Star Construction Company, when he sustained injuries as a result of falling through a suspended ceiling at the Cleveland Convention Center. Prior to appellant's fall, on April 23, 1987, the owner of the Cleveland Convention Center, defendant-appellee City of Cleveland entered into a contract with defendant-appellee Marbro Construction Company for certain public improvements at the Convention Center. Marbro Construction Company subcontracted various portions of the contract to independent subcontractors, including Four Star Construction Company, for work involving installation of the heating, ventilating and air conditioning system (HVAC). -3- Four Star Construction Company thereafter subcontracted a portion of the work to Dean Webb Sheet Metal, Inc. to install the duct work above the area of the Convention Center known as the "North Porch" and another portion of the work to AC&S Insulation Company to install insulation and pipe covering for the duct work. Appellant Patrick Gallagher was employed by AC&S Insulation, a subcontractor of Four Star Construction Company, when he fell while installing insulation above the North Porch. STATEMENT OF THE CASE On November 12, 1987, appellant Patrick Gallagher filed suit in the Cuyahoga County Common Pleas Court against the City of Cleveland, Martini Construction Company and Four Star Construction Company. On November 23, 1987, appellant amended to include Marbro Construction Company. Other parties were eventually joined as defendants who were various contractors associated with the repair work being done at the Cleveland Convention Center. On December 4, 1989, defendants-appellees City of Cleveland and Marbro Construction Company filed motions for summary judgment. On February 5, 1990, the City of Cleveland's motion for summary judgment was granted. On February 7, 1990, Marbro Construction Company's motion for summary judgment was granted. At this time, the only remaining defendants were Four Star Construction Company and Dean Webb Sheet Metal, Inc. -4- On April 3, 1990, the trial court entered final judgment of dismissal pursuant to the parties' agreement of dismissal. Thereafter, appellants Gallagher filed this appeal from the granting of the two motions for summary judgment, in favor of appellees-defendants, City of Cleveland and Marbro Construction Company. ASSIGNMENT OF ERROR NO. I "THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT MARBRO CONSTRUCTION COMPANY AND DISMISSING THE CLAIMS AGAINST THE DEFENDANT, ALL TO THE PREJUDICE OF THE PLAINTIFFS." ASSIGNMENT OF ERROR NO. II "THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT CITY OF CLEVELAND AND DISMISSING THE CLAIMS AGAINST THAT DEFENDANT, ALL TO THE PREJUDICE OF THE PLAINTIFFS." Assignments of Error I and II implicate similar issues and will therefore be discussed concurrently. Appellant argues in his first and second assignments of error that the trial court erred in granting the motion for summary judgment filed by appellees Marbro Construction Company and City of Cleveland. Specifically, appellant argues that genuine issues of material fact existed as to the extent of appellees' participation in the job. These assignments of error are not well taken. I. Appellants contend that there are genuine issues of material -5- fact which preclude summary judgment for appellees Marbro Construction Company and the City of Cleveland. Civ. R. 56(C) provides the procedure for summary judgment. The rule provides in pertinent part: "*** Summary judgment shall be rendered forthwith if the pleading, depositions, *** affidavits, *** in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. *** A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence *** construed most strongly in his favor. ***" Viewing the evidence most strongly in favor of appellants, as Civ. R. 56(C) requires, we conclude that there is no genuine issue as to any material fact in the within case and that the trial court did not err in granting the motions for summary judgment for appellees Marbro and the City of Cleveland. II. ISSUE: WHETHER APPELLEE MARBRO CONSTRUCTION COMPANY ACTUALLY PARTICIPATED IN THE JOB OPERATION PERFORMED BY APPELLANT GALLAGHER Generally, the general contractor owes no duty to the employee of an independent subcontractor for injuries that result from risks inherent in the subcontractor's assigned task. Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. -6- 27, 113 N.E. 2d 629; Briere v. Lathrop Co. (1970), 22 Ohio St. 2d 166, 51 O.O. 2d 232, 258 N.E. 2d 597. In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St. 3d 206, 6 OBR 259, 452 N.E. 2d 326, the Supreme Court, without overruling Wellman's "inherent risk" rule, created an exception to the general rule and held that the general contractor is liable if it "actually participates in the job operation" and thereby negligently fails to eliminate a risk inherent in the independent subcontractor's job. The syllabus of Hirschbach reads: "One 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 the majority premised the owner's liability on its denial of the independent contractor's request to position a winch line outside the owner's property. The Hirschbach exception, however, was narrowed in Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St. 3d 110, 21 OBR 416, 488 N.E. 2d 189. The court held in Cafferkey: "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." Cafferkey, supra, at syllabus. -7- The Cafferkey court noted that Hirschbach did not overrule Wellman and its progeny. The key factual distinction between the decisions was whether the general contractor "actually participated in the job operation." The court reasoned: "*** The undisputed facts establish that Turner [the general contractor] did not actively participate in any action or decision that led to the fatal injuries. Turner may have known about some of Millgard's [the independent subcontractor's] activities, but that knowledge does not constitute 'actual participation' in those activities within the Hirschbach rule. Unlike the landowner in Hirschbach, Turner neither gave nor denied permission for the critical acts that led to the decedent's injuries." Cafferkey, supra, at 112, 21 OBR at 418, 488 N.E. 2d at 192. Appellant puts forth two arguments to support their contention that Marbro Construction Company is liable for their injuries. Appellants contend that an employee of Marbro, Norman Elbin, showed Gallagher the work area and stated that: "It's ready. It's safe." And that from this statement the court can deduce an active participation in the performance of the job. Appellants further argue that appellee Marbro denied permission for the removal of the ceiling, and therefore actively participated under the holding in Hirschbach and Cafferkey. Appellants' evidence fails with respect to both arguments. Applying the standards enunciated in the line of cases from Wellman to Hirschbach to Cafferkey, appellants have failed to produce evidence showing that Marbro actually participated in the job operation performed by appellee Gallagher. -8- The Hirschbach majority premised the owner's and general contractor's liability on its denial of the independent contractor's request to position a winch line outside the owner's property. In the within case, we distinguish Hirschbach for two reasons. One, the inherent danger in Hirschbach was clear. The owner acted contrarily to the industry standard by not moving the winch back to the required distance. Herein, evidence indicates that the insulation work that appellant was performing was often done above the ceilings with the ceiling in place. (Dilallo Dep., pp. 20 and 22.) Further, George Dilallo, the construction superintendent for AC&S Insulation, was aware that the ceiling was in place. Dillalo, in his deposition, stated that his company had done work above such areas in the past and was aware of the dangers involved in doing so (Dilallo Dep., pp. 9-14). Therefore, clear negligence on the part of the owner or general contractor as was found in Hirschbach was absent in the within case. Secondly, in Hirschbach, the evidence indicated actual participation on the part of the owner in the decision making process which resulted in injury to the subcontractor. In the within case, Marbro retained the services of Four Star Construction Company, who then subcontracted with AC&S Insulation. There is no evidence in the record to indicate that Marbro as general contractor, actively participated in the actual work performed by the sub-subcontractor AC&S Insulation. -9- Accordingly, the Hirschbach exception is not applicable in the within case, rather, the more narrow holding of Cafferkey is applicable: "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." Cafferkey, supra, at syllabus. Accordingly, absent evidence of Marbro's active participation in appellant's work, no liability for appellant's injury lies with Marbro Construction Company. III. ISSUE: WHETHER APPELLEE CITY OF CLEVELAND ACTUALLY PARTICIPATED IN THE JOB OPERATION PERFORMED BY APPELLANT GALLAGHER Under Ohio law, the owner of premises owes no duty to employees of an independent contractor injured on its premises where the performance of the work involves an inherent danger unless the owner: (1) has superior knowledge of the danger which the independent contractor lacks, Eicher v. United States Steel Corp. (1987), 32 Ohio St. 3d 248, 512 N.E. 2d 1165, or (2) actually participates in the job operation, Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St. 3d 206, 6 OBR 259, 452 N.E. 2d 326. Accord Brauning v. Cincinnati Gas & Elec. Co. (1989), 54 Ohio App. 3d 38. Accord, Emminger v. Motion Savers, Inc. (1990), 60 Ohio App. 3d 14. -10- Therefore, under Ohio law, the City of Cleveland Convention Center owes a duty to appellants if it can be shown that the City of Cleveland (1) had superior knowledge of the danger which appellants lacked, Eicher v. United States Steel Corp., supra, or (2) actually participated in the job operation, Hirschbach, supra. Appellants, within, fail to show either of these requirements. Appellants argue instead that appellee City is liable pursuant to R.C. 4101.11 and 4101.12. R.C. 4101.11, which imposes upon an employer a duty to protect employees and frequenters, provides that: "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 places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters." R.C. 4102.12 imposes on an employer the duty to furnish to employees and frequenters a safe place of employment, providing that: "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 -11- employment and places 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." Appellants argue that the City of Cleveland's liability turns upon the City's retention of possession and control of the premises. Recent case law, however, interpreting R.C. 4101.11 and 4101.12 holds that an owner of premises is not an insurer, "however, he owes a duty to his invitees to exercise ordinary care to maintain the premises in a reasonably safe condition and to warn of any latent dangers of which he knew or reasonably should have known. Brauning, supra, at 44, citing Eicher, supra. In Brauning, appellant sought damages for personal injuries sustained when a metal light pole that he and his employer were resetting in Sharonville came into contact with electrical power lines. In Brauning, the appellant alleged that liability flowed from a duty on the part of the Sharonville Safety Service Director to supervise repairs and improvements. The court, however, found that despite its reservation to supervise repairs and improvements, Sharonville did not actively participate in the resetting of the pole, and therefore was not liable to appellant for his injuries sustained while working for the City of Sharonville. The Brauning court found that the "primary responsibility for protecting the employees of an independent contractor lies with the independent contractor." Eicher, supra. "Thus, one who -12- engages the service of an independent contractor ordinarily owes no duty of protection to the employees of the independent contractor when the independent contractor proceeds with knowledge and an appreciation of the danger that the work entails." Wellman, supra, paragraph two of the syllabus. Brauning at p. 44. Accordingly, absent an evidentiary showing that the City of Cleveland had superior knowledge of the danger entailed in performing the job, and that appellants did not appreciate the danger involved, appellee City of Cleveland cannot be held liable for appellants' injuries. The evidence shows that appellee City of Cleveland as owner of the premises exercised ordinary reasonable care in maintaining the premises in a reasonably safe manner. There was evidence of discussions concerning the suspended ceiling, and evidence indicates that appellants were aware that the ceiling was going to be present during their phase of the job. (Trimble Dep., Arsena Dep., Elbin Dep., Dilallo Dep., Gallagher Dep.) It is clear from the evidence that the City of Cleveland had a contract with Marbro Construction Company to have certain work performed at the Convention Center. There is no evidence, however, that the City of Cleveland actively participated in the subcontractor, AC&S's performance of the job. Further, there is no evidence that the City was negligent in failing to warn or protect appellants or to furnish them with a safe work place. Brauning, supra. -13- IV. CONCLUSION Appellees City of Cleveland and Marbro Construction Company are not liable to appellants Gallagher because the evidence does not support appellants' contention that appellees actually participated in the performance of appellants' work or had superior knowledge of inherently dangerous work which appellant was unaware of. "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." (Cafferkey, supra, at syllabus.) Accordingly, no genuine issues of material fact were presented for resolution. Appellees City of Cleveland and Marbro Construction Company were entitled to summary judgment in their favor as a matter of law. Accordingly, appellants' Assignments of Error I and II are without merit. Accordingly, the trial court is affirmed. -14- It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATTON, J. and KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .