COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68372 GEORGE SIMKO, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION LEE HOMES, INC., ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 263886 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: MARK F. KRUSE, ESQ. LYNN A. LAZZARO, ESQ. McIntyre, Kahn & Kruse Meyers, Hentemann, Schneider Co., L.P.A. & Rea Co., L.P.A. 1301 East Ninth Street 2100 Superior Building Suite 1200 Cleveland, Ohio 44114 Cleveland, Ohio 44114-1824 - 2 - JAMES M. PORTER, P.J., Plaintiff-appellant George Simko and his wife appeal from the trial court's grant of summary judgment in favor of defendant- appellee Lee Homes, Inc. which held that Lee Homes was not vicariously liable for the negligent acts of its independent contractor nor independently negligent in causing plaintiff's personal injuries. We find no error and affirm. This action arose out of a claim that George Simko tripped and fell over a hose or cord extending from a compressor across the sidewalk in front of his residence. The compressor was supplying compressed air and the cord power to a job site where Lee Homes was constructing a residence. The compressor was owned and placed at the site by co-defendant Chinchar Construction, Inc. Chinchar was doing rough carpentry work on the job site for Lee Homes. Lee Homes contended Chinchar was an independent contractor for whose negligence Lee Homes was not responsible. Chinchar had plugged his compressor into a power source on a neighboring lot. He had extended his cords and hose across Mr. Simko's sidewalk and driveway to another lot located on the other side of Mr. Simko's property. Both Chinchar and Lee Homes acknowledged in answers to interrogatories that Chinchar's relationship to Lee Homes was that of an independent contractor. Chinchar was solely responsible for the location of the compressor and hose. Chinchar admitted at deposition that it could have extended its hose and cord across the street at the end of - 3 - plaintiff's driveway, thereby totally avoiding any placement of the cord or hose across Mr. Simko's driveway. Plaintiffs brought suit against both Lee Homes and Chinchar. The defendants moved separately for summary judgment. The trial court granted summary judgment for Lee Homes and denied Chinchar's motion. Thereafter, plaintiffs and Chinchar stipulated to an agreed judgment entry finding in favor of the plaintiffs and against Chinchar for $25,000. An appeal was timely taken by the plaintiffs from the summary judgment entered in favor of Lee Homes. We will address plaintiffs' assignments of error in the order presented. I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE LEE HOMES, INC. AND THEREBY DETERMINING, AS A MATTER OF LAW, THAT CHINCHAR CONSTRUCTION, INC., A CONTRACTOR IN PRIVITY WITH LEE HOMES, INC., WAS AN INDEPENDENT CONTRACTOR TO LEE HOMES, INC., AS OPPOSED TO A SUBCONTRACTOR OF LEE HOMES, INC., AND THAT THEREFORE LEE HOMES, INC. WAS NOT LIABLE FOR THE NEGLIGENCE OF CHINCHAR CONSTRUCTION, INC. Both parties concede that an employer or principal is liable for the torts of its employees or agents under the doctrine of respondeat superior, but is not liable for the negligence of an independent contractor. Counsel v. Douglass (1955), 163 Ohio St. 292. In this case, both Chinchar and Lee Homes stated unequivocally that Chinchar's relationship to Lee Homes was that of independent contractor at the time of the injury to plaintiff. When evidence relevant to the determination of whether an - 4 - individual is an employee or independent contractor is undisputed, that determination is a matter of law to be made by the court. Bostic v. Connor (1988), 37 Ohio St.3d 144; Teed v. Twinsburg Auto & Truck (1994), 94 Ohio App.3d 557, 560; Haring v. Triangle Equip. Corp. (1992), 91 Ohio App.3d 432, 436. Chinchar had contracted with Lee Homes to "*** rough [in] frame home for Lee Homes." The cord and hose which extended from the compressor in question were solely in the custody and control of Chinchar. Chinchar admitted its sole responsibility for laying the cord and hose across the sidewalk and driveway of the plaintiffs on the date in question. Gary Romankowski, the president and sole employee of Lee Homes, indicated at deposition that he does not do any actual construction work, but contracts it out to someone else. He stated that he cleans up and sweeps floors, but that all the actual construction-type work is done by contractors he engages. Plaintiff contends that Lee Homes retained the right of control over Chinchar as a subcontractor and that was sufficient to deprive Chinchar of independent contractor status. He claims Lee Homes visited the job site twice a day; supervised the progress of the work; supplied building materials to Chinchar; provided the place to work; reserved the right to make changes; and obtained all necessary permits for the work to go forward. We do not find that these activities are sufficient to make Lee Homes vicariously liable for the injury to plaintiff. - 5 - We are guided by the recent Supreme Court decision which requires active participation by the general contractor in the injury-causing activity. See Bond v. Howard Corporation (1995), 72 Ohio St.3d 332, syllabus: 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.) In a portion of the opinion which bears directly on the issues herein, the Court found that the activity which caused the injury must have been one which the general contractor "actively participated" in. The court stated at 337: 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. Therefore, based on the foregoing, the trial court and court of appeals properly concluded that Howard was entitled to summary judgment. We see no significant distinction between the basis for the general contractor's liability to an injured employee of the - 6 - independent contractor and injury to a third person, i.e., Simko, the homeowner. The Supreme Court recently extended its active participation requirement to owners of the site in Michaels v. Ford Motor Co. (1995), 72 Ohio St.3d 475, 479-80: An owner of a construction site who merely directs an independent contractor to perform a task required by contract specifications but does not retain control over the means or manner in which that task is performed does not owe a duty of care to an employee of a subcontractor who is subsequently injured as a result of the other contractor's performance of the task in an unsafe manner. The general supervisory or oversight activities of Lee Homes did not constitute active participation in the injury causing episode involving the placement of the hose for the compressor and the power cord. Accordingly, summary judgment was properly granted. Assignment of Error I is overruled. II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE LEE HOMES, INC. AND THEREBY DETERMINING, AS A MATTER OF LAW, THAT LEE HOMES, INC. WAS NOT INDEPENDENTLY NEGLIGENT. There was no evidence offered by plaintiffs to substantiate that Lee Homes was independently negligent. Plaintiffs argue that since Chinchar was required to draw power from a sublot located on the other side of Simkos' property, Lee Homes should be found to be independently negligent for Chinchar's acts. This argument is without merit. - 7 - Chinchar admitted that it positioned the compressor in the place where it was found; that it positioned the hose and cord that came from that compressor; and that it had sole custody and control of that compressor, cords and hoses. These facts were corroborated by Lee Homes in its answers to interrogatories. Chinchar had a choice of where to place its compressor, hose and cord. Even the plaintiff conceded in his affidavit in opposition to the motion for summary judgment that "the contractor could have run the cord and hose in the street, but did not do so. If he had, he would not have had to lay the cord across my property." The sole negligence, if any, which created the condition causing plaintiff's fall was that of Chinchar. Exercising its control over its equipment, Chinchar positioned the compressor in a place which it determined was most favorable to Chinchar's interests. The positioning was Chinchar's choice. There was no negligence by act or omission on the part of Lee Homes in the positioning or control of the compressor. Lee Homes is not liable for Chinchar's decision to place the cord and hose across the driveway where a more suitable option was available. Henderson v. Holley Brothers (Dec. 8, 1992), Adams App. No. 538, unreported (citing Clark v. Fry [1858], 8 Ohio St. 358, 382-83). - 8 - Plaintiffs' Assignment of Error II is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellants its 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 Court of Common Pleas 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. KARPINSKI, J., and JOHN V. CORRIGAN, J.*, CONCUR. JAMES M. PORTER PRESIDING JUDGE (*Judge John V. Corrigan, Retired, Eighth District Court of Appeals, Sitting by Assignment.) 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 .