COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60084, 60610 ANDREW WHITELOCK, ET AL. (#60084) : : PLAINTIFF-APPELLEE : v. : : JOURNAL ENTRY CLEVELAND CLINIC FOUND., ET AL. : : AND DEFENDANT-APPELLANT : : OPINION and : : ANDREW WHITELOCK, ET AL. (#60610) : : PLAINTIFF-APPELLANT : : v. : : GILBANE BUILDING COMPANY : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 119560 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Andrew Whitelock: MICHAEL R. KUBE JEFFRIES, KUBE & MONTELEONE CO., L.P.A. 1650 MIDLAND BUILDING 101 PROSPECT AVE., WEST CLEVELAND, OHIO 44115 For Gilbane Building Company: THOMAS J. KAISER GALLAGHER, SHARP, FULTON & NORMAN 1501 EUCLID AVENUE SEVENTH FL., BULKLEY BLDG. CLEVELAND, OHIO 44115 -2- SPELLACY, J.: Defendant Gilbane Building Company ("Gilbane") appeals from a jury verdict and contends the trial court erred when it did not grant its motion for directed verdict filed under Civ. R. 50. Plaintiffs Andrew Whitelock and Donna Whitelock ("Whitelocks") appeal from the trial court's decision to deny their motion for pre-judgment interest filed under R.C. 1343.03(C). The facts giving rise to this appeal are as follows: In 1982, Defendant Cleveland Clinic Foundation ("Clinic") entered into a contract with Gilbane under which Gilbane agreed to act as project manager for the construction of a Clinic building. Gilbane in turn contracted with approximately twenty subcontractors, including defendant G-A Masonry Corp. On September 17, 1984, Andrew Whitelock, a bricklayer employed by G-A Masonry, was injured at the project by a two-by- four plank which was dropped by men working above him. On March 29, 1985, Andrew Whitelock was injured again when he fell off of a scaffolding platform. Whitelocks subsequently initiated tort actions against the Clinic, Gilbane, and G-A Masonry. Prior to trial the Clinic and G-A Masonry were dismissed. A jury trial commenced on May 14, 1990. At the conclusion of the trial, the jury found for Gilbane on the September 17, 1984, incident and for Whitelocks on the March 29, 1985, incident. The jury then found that Andrew's damages were $400,000 and Donna's damages were $12,500. The jury further -3- found that Andrew was thirty percent negligent. Whitelocks were only awarded $175,000, however, because this was the amount requested in their complaint. On May 22, 1990, Whitelocks filed a motion for pre-judgment interest. After holding a hearing, the trial court denied Whitelocks' motion. Gilbane appeals and raises the following assignment of error: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT BECAUSE OHIO LAW PROVIDES THAT A GENERAL CONTRACTOR WHO HAS NOT ACTIVELY PARTICIPATED IN THE INHERENTLY HAZARDOUS WORK OF A SUBCONTRACTOR OWES NO DUTY OF CARE TO THE SUBCONTRACTOR'S EMPLOYEES AND IS NOT RESPONSIBLE FOR INJURIES SUFFERED BY THOSE EMPLOYEES. Whitelocks appeal and raise the following assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT APPELLANT'S MOTION FOR PREJUDGMENT INTEREST. These two appeals have been consolidated. I. In its assignment of error, Gilbane contends the trial court erred when it did not grant its motion for directed verdict. Gilbane's assignment of error lacks merit. In Sanek v. Duracote Corp. (1989), 43 Ohio St. 3d 169, 172, the court held that: The test for granting a directed verdict ***is whether the movant is entitled to judgment as a matter of law when the evidence is construed most strongly in favor of the non-movant. -4- Gilbane concedes, for the purposes of this appeal, that the scaffolding did not comply with OSHA regulations. At trial, Whitelocks adduced the following pertinent evidence during their case-in-chief: The contract between Gilbane and the Clinic provided that Gilbane would: Determine the adequacy of the Trade Contractors' personnel and equipment and the availability of materials and supplies to meet the Master Schedule. Advise Owner of courses of action taken when requirements of a trade Contract are not being met. Initiate and supervise all safety precau- tions and programs in connection with the Work without assuming the Trade Contractors' responsibility under applicable safety rules and regulations. Tony Rago, Whitelocks' expert, testified that Gilbane had overall supervisory responsibility for the project, ensuring compliance with plans and specifications and ensuring that the sub-contractors used proper equipment and performed their work in a safe manner. Rago also testified that Gilbane provided regular inspections of the job site, passed out safety literature, held safety meetings, kept accident statistic, wrote up accident reports, investigated accidents and wrote the safety program for this job. This safety program consisted of a nineteen page manual. Rago went on to testify that Gilbane was responsible for compliance with OSHA requirements. The contract between Gilbane and G-A Masonry provided: -5- In the event the trade contractor, [G- A Masonry], after 24 hour written notice from the construction manager [Gilbane], fails to take corrective action to insure compliance with said safety regulations and/or removal of rubbish and debris resulting from his work, the construction manager shall undertake these obligations and charge the cost of same to the trade contractor's account without further notice to the trade contractor. J.P. O'Donovan, Gilbane's safety director, testified that Gilbane's project manager, Michael Richard, was responsible for ensuring that Gilbane's safety program was enforced. O'Donovan further testified that the reason Gilbane made inspections was so that it could locate unsafe conditions and notify the sub- contractors that the unsafe conditions had to be corrected. O'Donovan also testified that Gilbane had the authority to correct unsafe conditions. Richard testified that Gilbane had the authority to have conditions which were in non-compliance with OSHA requirements corrected. Generally, a party who engages the services of an independent contractor to perform an inherently dangerous task is not liable for injuries sustained by the independent contractor's employees. Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103. In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St. 3d 206, syllabus, the court carved out an exception to this general rule, holding that: One who engages the services of an independent contractor, and who actually participates in the job operation performed -6- 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. In Hirschbach, the party who engaged the independent con- tractor "actually participated" by "(1) *** refus[ing] to eliminate the hazard, (2) *** interfer[ing] with the mode of operation, and (3) *** actually participat[ing] in the job operation by dictating the manner and mode in which *** the job was to be performed." Id. at 208. In Cafferskey v. Turner Constr. Co. (1986), 21 Ohio St. 3d 110, syllabus, the court refined Hirschbach by holding 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. The Cafferskey Court noted that: Appellants assert that certain provisions of the contract between Turner [general contractor] and Millgard [subcontractor] as well as certain portions of Turner's safety manual reveal Turner's retention of control over safety procedures at the project site. Turner 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 work that is legally required to create a duty of care extending from Turner to Millgard's employees. -7- The Turner "Safety Program" is a one-page list of general safety requirements directed toward all subcontractors. Turner advised everyone concerned that hard hats must be worn, appropriate eyewear and footwear must be available for use, and the like. This safety program was nothing more than a handy, brief reference sheet to remind subcontractors about the fundamental "do's and don'ts" at the construction site. *** Turner retained the ability to monitor and coordinate the activities of all subcontrac- tors in order to ensure compliance with the architect's specifications. The various contractual rights reserved by Turner did not empower Turner to control the means or manner of Millgard's performance. Millgard, the acknowledged expert in caisson installation, assumed the responsibility to construct and install caissons in a sound, efficient, and safe manner. The details of Millgard's performance were directed and carried out solely by Millgard's employees. Turner did not direct or interfere with Millgard's work. Id. at 112, 113. (Emphasis added). This Court has recently addressed this issue in O'Brien v. AEI Inc. (April 26, 1990), Cuyahoga App. No. 56822, unreported; and Gilday v. S & R. Playhouse Realty Co. (June 14, 1990), Cuyahoga App. No. 57022, unreported; both of which were resolved on summary judgment. In O'Brien, which also involved the Clinic project, we found 1 that the general contractor's safety meetings did not constitute the type of "active participation that is legally required to create a duty of care." O'Brien, supra, at 6. We also found 1 The general contractor was Gilbane. -8- that the general contractor did not control the means nor the manner of the subcontractor's performance. Id. In Gilday, we found that the general contractor was not liable because it "did not *** [have] the power to control the means or manner of *** [the subcontractor's] performance." Gilday, supra, at 6-7. After a review of the record, we find that, construing the evidence most strongly in favor of Whitelocks, Gilbane was not entitled to judgment as a matter of law. Specifically, we find the instant case to be distinguishable from Cafferkey. In Cafferkey, the general contractor's concern for safety was evidenced by a 'one-page list" [which was a] *** "handy, brief reference sheet to remind subcontractors of the 'do's and don'ts' at the construction site." Cafferkey, supra, at 113. In addition, the language in the contract pertaining to job safety was "nothing more than standard 'boiler plate' terminology common to virtually all construction contracts." Id. Furthermore, the general contractor retained power to monitor the activities so that it could "ensure compliance with the architect's specifications," id., not for safety reasons. Finally, the general contractor was not "empowered *** to control the means or manner of *** [the subcontractors] performance." Id. I n the instant case, Gilbane wrote a detailed safety program, was involved in inspections to uncover unsafe conditions, and had the authority to actually dictate the manner in which a task was performed. -9- Accordingly, Gilbane's assignment of error is not well taken. II. In their assignment of error, Whitelocks contend the trial court erred when it denied their motion for pre-judgment interest made under R.C. 1343.03(C). Whitelocks' assignment of error lacks merit. R.C. 1343.03(C) provides: Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid, if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case. In Kalein v. Smith (1986), 25 Ohio St. 3d 157, syllabus, the court held: A party has not "failed to make a good faith effort to settle" under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith mone- tary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary settlement offer. -10- The decision to grant or deny prejudgment interest lies within the discretion of the trial court. Cox v. Fisher Fazio Foods, Inc. (1984), 13 Ohio App. 3d 336. Whitelocks argue that Gilbane did not fully cooperate in discovery proceedings. After a review of the record, we find that the trial court did not abuse its discretion when it found that Gilbane fully complied with discovery. Whitelocks also argue that Gilbane did not rationally evaluate its liability and offer a good faith monetary settlement. First, Whitelocks point to the fact that Gilbane made an offer for the September 17, 1984, injury but not for the March 29, 1985, injury. Gilbane's attorney testified, however, that a settlement offer for the March 29, 1985, would not have been cost-effective, and would have had to have been over $100,000. Second, Whitelocks point to the fact that Gilbane's attorney did not have authority to make a settlement offer. Gilbane's attorney, however, testified that he did not request authority to settle the case because he did not think a settlement would be practical. Accordingly, Whitelocks's assignment of error is not well taken. Judgment affirmed. -11- It is ordered that Whitelocks recover of Gilbane their costs herein taxed to Court of Appeals Case No. 60084. It is further ordered that Gilbane recover of Whitelocks its costs herein taxed to Court of Appeals Case No. 60610. The court finds there were reasonable grounds for these appeals. 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. DAVID T. MATIA, C.J., CONCURS; KRUPANSKY, J., CONCURS, IN PART; AND DISSENTS, IN PART. (See Concurring and Dissenting Opinion Attached) LEO M. SPELLACY JUDGE 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60084 and 60610 ANDREW WHITELOCK, ET AL. (#60084) : : Plaintiff-Appellee : vs. : : CLEVELAND CLINIC FOUNDATION, ET AL. : CONCURRING AND : Defendant-Appellant : DISSENTING and : : OPINION ANDREW WHITELOCK, ET AL. (#60610) : : Plaintiff-Appellant : vs. : : GILBANE BUILDING COMPANY : : Defendant-Appellee : DATE: APRIL 2, 1992 KRUPANSKY, J., CONCURS AND DISSENTS: I concur in the majority's opinion in affirming the trial court's denial of prejudgment interest, however, I respectfully dissent from the majority opinion for the reason that it fails to follow stare decisis with regard to the first assignment of error. The majority opinion cites two recent opinions of this district, viz., O'Brien v. AEI, Inc. (April 26, 1990), Cuyahoga App. No. 56822, unreported, and Gilday v. S & R Realty Co. (June 14, 1990), Cuyahoga App. No. 57022, unreported, however, not only - 3 - does the majority opinion fail to distinguish these cases, it completely ignores their holdings. It is noted in the majority opinion that both O'Brien and Gilday "were resolved on summary judgment." The majority neglects to mention that the tests for a motion for summary judgment and a motion for directed verdict are similar, i.e., the resolution of a case based upon a question of law. Civ. R. 50 states in pertinent part the following: * * * (4) When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. (Emphasis added.) Regarding a motion for a directed verdict, the Ohio Supreme Court has stated as follows: When a motion for a directed verdict is entered, what is being tested is a question of law; that is, the legal sufficiency of the evidence to take the case to the jury. This does not involve weighing the evidence or trying the credibility of witnesses; it is in the nature of a demurrer to the evidence and assumes the truth of the evidence supporting the facts essential to the claim of the party against whom the motion is directed, and gives to that party the benefit of all reasonable inferences from that evidence. The evidence is granted its most favorable inter- pretation and is considered as establishing every material fact it tends to prove. The "reasonable minds" test of Civ. R. 50(A)(4) calls upon the court only to determine whether there exists any evidence of substantial probative value in support - 4 - of that party's claim. See Hamden Lodge v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469. Weighing evidence connotes finding facts from the evidence submitted; no such role is undertaken by the court in considering a motion for a directed verdict. A motion for a directed verdict raises a question of law because it examines the materiality of the evidence, as opposed to the conclusions to be drawn from the evidence. (Emphasis added.) Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66 at 68, 69. Thus, the court noted the following: Simply because resolution of a question of law involves a consideration of the evidence does not mean that the question of law is converted into a question of fact or that a factual issue is raised. Id. at 68; see, also, Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App. 3d 94. The issue in the case sub judice is whether on the facts Gilbane owed a duty of care toward employees of G-A Masonry. Gilbane argues the motion for directed verdict should have been granted because as a matter of law its promulgation of a safety program did not impose on it a duty of care toward employees of G-A Masonry since Gilbane as general contractor did not "actively participate" in the inherently hazardous work of its subcontractor, G-A Masonry. This argument is persuasive based upon the decisions of this court in O'Brien, supra, and Gilday, supra, which relied upon the supreme court's decision in Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St. 3d 110. Plaintiff, however, argues that the construction contracts, viz., between Gilbane and the Cleveland Clinic, and between - 5 - Gilbane and G-A Masonry, together with Gilbane's promulgation of a "safety program," employment of specific safety personnel, and regular safety inspections of the site created such a duty. In support of this theory of law, at trial plaintiff intro- duced into evidence the construction contracts. In its contract with the Cleveland Clinic, Gilbane agreed to provide overall supervision of the project. However, Section 2.2.15 of the agreement states as follows: Initiate and supervise all safety precautions and programs in connection with the Work without assuming the Trade Contractors' responsibility under applicable safety rules and regulations. (Emphasis added.) Moreover, the contract between Gilbane and G-A Masonry, which was also introduced by plaintiff into evidence at trial, states the following: 9.5 The trade contractor agrees to adequately and properly protect his work of construction. The trade contractor agrees to adhere to the Federal Occupational Safety Act, state and local safety regulations and the construction manager's safety program, so as to avoid injury or damage to persons or property, and to be directly respon- sible for damage to persons and property result- ing from failure to do so. (Emphasis added.) Plaintiff argues the promulgation of a "safety program" with regard to the construction site imposed upon Gilbane a duty of care toward employees of a subcontractor. However, in O'Brien v. A.E.I., Inc. (Apr. 26, 1990), Cuyahoga App. No. 56822, this court disagreed. The O'Brien decision involved the same construction - 6 - project, the same defendant (viz., Gilbane), and the same issue of law. In O'Brien, plaintiff's decedent was killed when he fell from a twenty-five foot high walkway which lacked guard rails or other safety devices. The trial court granted Gilbane's motion for summary judgment. On appeal plaintiff made the same argu- ment as plaintiff in the case sub judice, viz., that since Gilbane as project manager was ultimately in charge of overall safety at the construction site, it therefore "actively participated" in the "act" which led to decedent's injuries. However, this court stated the following: Although Gilbane by virtue of its status as project manager had an overall safety program, it neither denied permission to install a safety device nor did it control the means or manner of [the subcontractor's] performance. [Footnote omitted; citation.] Gilbane did conduct safety meetings. Concern for safety is common to all construction project managers but does not con- stitute the kind of "active participation that is legally required to create a duty of care" extend- ing from Gilbane to [the subcontractor's] employees. [Citation.] (Emphasis added.) This court explained its rational thusly: As a rule, the general contractor owes no duty to the employee of an independent subcon- tractor for injuries that result from risks "inherent" in the subcontractor's assigned task. Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103. The Supreme Court of Ohio created an exception to the general rule of "inherent risk" set forth in Wellman. The syllabus of Hirschbach v. Cincinnati Gas & Electric Co. (1983), 6 Ohio St. 3d 206, reads: One who engages the services of an inde- pendent contractor, and who actually parti- - 7 - cipates in the job operation performed by such contractor and thereby fails to elimi- nate 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.) Hirschbach, supra. The Hirschbach exception was narrowed in Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St. 3d 110, which provided: 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 (emphasis added). In O'Brien, this court further noted the burden of proof on the issue of "actual" or "active" participation in the job operation by the general contractor rests upon the employee or his representative, citing Mount v. Columbus & Southern Ohio Elec. Co. (1987), 39 Ohio App. 3d 1, page one of syllabus. The court determined plaintiff had not met that burden of proof. Therefore, this court affirmed summary judgment for Gilbane which was proper because plaintiff had failed to prove Gilbane was an "active participant" in the work which led to the injury. Plaintiff in the case sub judice strongly argues the trial court had before it substantially more evidence of Gilbane's active participation in the act which led to plaintiff's injury than did the trial court in O'Brien. Plaintiff contends the expert testimony, the evidence of Gilbane's extensive safety program, and testimony of Gilbane's employees presented in the - 8 - case sub judice distinguished this case from O'Brien. These arguments may have convinced the majority herein, however, analyzing the same material and applying the relevant law, I do not find them persuasive. Plaintiff's expert, Mr. Rago, was asked the key question on direct examination. His testimony follows: Q. From the depositions and the documents you reviewed do you have an opinion as to whether or not Gilbane Building Company participated in the job operation performed by G & A Masonry? MR. KAISER: Objection. * * * A. My understanding of Gilbane's participation, as far as that goes, was that they did an awful lot of things. They provided regular inspections of the job site. They passed out safety literature. Gilbane held safety meetings. They kept accident statistics. They wrote up accident reports. They investigated accidents. They wrote the safety program for this job. (Emphasis added.) It can readily be seen that Mr. Rago's answer to the question posed did not answer the question as asked but specifically dealt with the safety operation. This question went to the heart of plaintiff's case. Yet Mr. Rago's answer did not support plaintiff's claim of "participation in the job operation" by Gilbane. Mr. Rago did not state Gilbane told the subcontractors how to perform their jobs, rather, he merely stated actions taken by Gilbane as part of its general - 9 - supervision of the subcontractors to insure safety on the construction site. Mr. Rago's testimony thus falls squarely within the holding of Cafferkey, supra: 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.) There is no question the work performed herein was inherently dangerous. The foregoing demonstrates plaintiff's evidence was merely that Gilbane had "the right to monitor and coordinate the activities of its subcontractor in order to ensure compliance" with the overall safety regulations. Gilbane's employees' testimony merely confirmed this part. Plaintiff's evidence is not legally sufficient to impose a duty of care for G-A Masonry's employees on Gilbane, however. A general contractor's right to retain and its exercise of its supervisory capacity, without evidence that the act or decision which led to the injury was made by the general contractor, does not amount to "active participation." Gilday v. S&R Playhouse Realty (June 14, 1990), Cuyahoga App. No. 57022, unreported. Moreover, the contract between Gilbane and G-A Masonry clearly places the primary duty to comply with safety regulations on G-A Masonry. Id. Thus, plaintiff's efforts to turn this case into a question of fact rather than a question of law must fail. Ruta v. - 10 - Breckenridge-Remy Co., supra. After construing the evidence most strongly in plaintiff's favor, as required by Civ. R. 50(A), the trial court could only conclude Gilbane owed no duty of care toward plaintiff upon which to premise liability. Cafferkey v. Turner Constr. Co., supra; O'Brien v. A.E.I., Inc., supra; Gallagher v. City of Cleveland (January 30, 1992), Cuyahoga App. No. 59759, unreported. Therefore, Gilbane's motion for directed verdict should have been granted. Accordingly, Gilbane's assignment of error should be sustained and in Case No. 60084 the judgment of the trial court should therefore be reversed and final judgment rendered for Gilbane on plaintiff's complaint. Since the majority's decision herein directly conflicts with the decisions of O'Brien, supra, and Gilday, supra, based upon the stare decisis promulgated by the Ohio Supreme Court culminating in Cafferkey, I strongly suggest certification of the record in this case to the Supreme Court of Ohio to resolve this question of law which the majority in the case sub judice has placed into conflict with two previous decisions from this district. .