COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69471 DONALD J. MARAS, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : GOODYEAR TIRE & RUBBER CO., : OPINION ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: MAY 23, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-260449. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Anne L. Kilbane, Esq. John Schloss, Esq. Nurenberg, Plevin, Heller & McCarthy 1370 Ontario Street Standard Building, 1st Floor Cleveland, OH 44113-1792 For Defendants-Appellees: Alan M. Petrov, Esq. Timothy J. Fitzgerald, Esq. Gallagher, Sharp, Fulton & Norman 1501 Euclid Avenue Bulkley Building, 7th Floor Cleveland, OH 44115 Hunter S. Havens, Esq. 800 Leader Building Cleveland, OH 44114 -3- DAVID T. MATIA, P.J.: Donald and Dolores Maras, plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CV- 260449, in which the trial court granted the motions for summary judgment of Goodyear Tire and Rubber Company and Century Sign Company, defendants-appellees. Plaintiffs-appellants assign one error for this court's review. For the following reasons, Donald and Dolores Maras', plaintiffs-appellants', appeal is not well taken. I. THE FACTS In the fall of 1991, Goodyear Tire and Rubber Company, defendant-appellee, (hereinafter "Goodyear") entered into a contract with Century Sign Company, defendant-appellee, (hereinafter "Century Sign") to clean and refurbish its outdoor, rooftop sign located at Goodyear's Snow Road Distribution Center. Pursuant to the contract, Century Sign, defendant-appellee, was required to clean the porcelain tile sections of the sign. After attempting various cleaning methods, Century Sign, defendant- appellee, determined that it was unable to adequately clean the porcelain sections of the sign. Consequently, Century Sign, defendant-appellee, entered into a contract with Donald Maras, plaintiff-appellant, the sole proprietor of Northcoast Porcelain Refinishers. Maras used a patented chemical cleaning solution to strip and clean porcelain. Although the majority of Donald Maras' work involved residential cleaning of bathtubs, porcelain tile and sinks, he agreed to -4- attempt to clean the porcelain sections of the Goodyear sign. As a subcontractor, Maras was to use his own chemicals and material for cleaning the sign however Century Sign, defendant-appellee, was to provide the scaffolding, so that Maras could reach the sign. Prior to beginning work on the sign, Donald Maras, plaintiff- appellant, was instructed by John Popielec, an employee of Century Sign, how to gain access to the roof of the Goodyear Distribution Center. The procedure involved climbing an interior stairwell into a rooftop boiler room where an aluminum ladder was stored that would be needed to ascend to a second, higher level of the roof where the sign was located. Maras was also instructed to tie open the double doors that led out of the boiler room onto the lower level of the roof since the doors self-locked from the inside. Failure to properly tie open the doors could result in one being locked out on the roof. On October 30, 1991, Maras, plaintiff-appellant, went to the Goodyear Distribution Center to begin cleaning the sign. Upon arrival, Maras discovered that no Century Sign employees or ladder truck was available on that day as he had expected. Maras proceeded to obtain access to the Goodyear roof by using the procedure shown to him on the previous day. Once on the roof, Maras discovered that the scaffolding which had been erected by Century Sign, defendant-appellee, was too far away from the sign to be of use. Maras contacted Century Sign, defendant-appellee, who dispatched a work crew to correct the placement of the scaffolding. -5- On October 31, 1991, Maras, plaintiff-appellant, returned to the Goodyear Distribution Center and resumed cleaning the porcelain sections of the Goodyear sign. While working on the sign, plaintiff-appellant observed two individuals on the roof adjusting lights. Maras assumed that they were Goodyear employees but their identity was never established. In the afternoon, when Maras, plaintiff-appellant, decided to quit for the day, he discovered that someone had removed the aluminum ladder that he had used to gain access to the second, higher level roof. After unsuccessfully attempting to get the attention of people on the ground for approximately one hour, Maras decided to hang-drop from the second, higher level roof down to the lower level roof, a drop of approximately ten feet. Maras successfully completed the first hang-drop. Once on the lower level roof, Maras, plaintiff-appellant, discovered that the double doors that he had tied open were now closed and locked effectively limiting his access to take the boiler room stairwell. Maras again unsuccessfully attempted to attract attention to his predicament for a length of time he estimated to have exceeded one hour. At this point, Maras decided to hang-drop off the lower roof onto a small roof over an employee entrance. From this smaller roof Maras attempted to hang-drop to the ground below. This third hang-drop proved to be unsuccessful resulting in Maras suffering a severely broken ankle upon impact with the ground. Maras then allegedly crawled to the Goodyear -6- office where the receptionist placed an emergency 9-1-1 call at approximately 2:45 p.m. Maras, plaintiff-appellant, was taken via ambulance to Southwest General Hospital for treatment. Maras told the emergency medical service technicians and emergency room personnel that he had injured his ankle as a result of tripping over a curb. On October 29, 1993, Donald and Dolores Maras, plaintiffs- appellants, filed their complaint alleging that Goodyear Tire and Rubber Co., defendant-appellee, and Century Sign Company, defendant-appellee, were negligent on October 31, 1991 and that such negligence caused Donald Maras' broken ankle. In addition, Dolores Maras, plaintiff-appellant, alleged loss of spousal consortium as a result of Donald Maras' injuries. After completion of substantial discovery, Goodyear and Century Sign, defendants-appellees, filed separate motions for summary judgment on January 27, 1995. On July 25, 1995, the trial court granted Goodyear and Century Sign, defendants-appellees', respective motions for summary judgment. On August 24, 1995, Donald and Dolores Maras, plaintiffs- appellants, filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR Donald and Dolores Maras', plaintiffs-appellants', sole assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING DEFENDANTS-APPELLEES' MOTIONS FOR SUMMARY JUDGMENT WHERE REASONABLE MINDS COULD -7- NOT HAVE COME TO A SINGLE CONCLUSION ADVERSE TO PLAINTIFFS-APPELLANTS AND DEFENDANTS- APPELLEES WERE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. A. THE ISSUE RAISED: SUMMARY JUDGMENT. Plaintiffs-appellants argue, through their sole assignment of error, that the trial court erred in granting Goodyear and Century Sign's, defendants-appellees', motions for summary judgment. Specifically, plaintiffs-appellants maintain that defendants-appellees had a duty to provide Donald Maras, plaintiff-appellant, with a safe place of employment pursuant to R.C. 4101.11, also known as the frequenter statute. It is plaintiffs-appellants' position that defendants-appellees had this duty since they allegedly maintained custody and control of the area in which Maras, plaintiff-appellant, was working. Plaintiffs-appellants maintain further that Maras, plaintiff- appellant, was not injured as a result of an inherently dangerous condition of his employment nor did he voluntarily assume the risk of his injuries. Plaintiffs-appellants' sole assignment of error is not well taken. B. STANDARD OF REVIEW FOR FREQUENTER. R.C. 4101.11 sets forth the duty of an employer to protect employees and frequenters: 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 -8- 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. The Ohio Supreme Court has set forth the legal principles governing whether an owner or general contractor owes a duty of care under the frequenter statute because it has custody or control of the employee, employment or place of employment. In Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, the Ohio Supreme Court held that "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 work, no liability for such injury ordinarily attaches to the one who engaged the services of the independent contractor." In Hirschbach v. Cincinnati Gas & Electric Co. (1983), 6 Ohio St.3d 206 the Ohio Supreme Court created an exception to the general rule stated above. The court held: "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." The phrase "actively participated" has been defined as "directed the activity which resulted in the injury and/or -9- 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." Bond v. Howard Corp. (1995), 72 Ohio St.3d 332; Michaels v. Ford Motor Co. (1995), 72 Ohio St.3d 475, 479. C. STANDARD OF REVIEW FOR SUMMARY JUDGMENT. Civ.R. 56(C) provides that before summary judgment may be granted, the court must determine that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue -10- for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. D. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT. In the case sub judice, a review of the record demonstrates that the trial court properly granted the respective motions for summary judgment filed by Goodyear Tire and Rubber Co. and Century Sign Company, defendants-appellees. Clearly, Donald Maras, plaintiff-appellant, was an independent contractor hired by Century Sign to complete one part of Century Sign's contract with Goodyear. Contrary to plaintiffs-appellants' assertion, neither Goodyear or Century Sign had custody or control over Donald Maras', plaintiff-appellant's, actions or the manner in which he was to complete the contracted for assignment. Since defendants-appellees did not actively participate in or direct plaintiff-appellant's activity while on the roof cleaning the sign, they cannot be liable for plaintiff-appellant's injuries as they did not breach a duty to plaintiff-appellant. This is particularly true in light of the fact that plaintiff- appellant was not injured while working on the Goodyear sign but -11- rather was injured as a result of a conscious decision on his part to attempt to hang-drop from the roof down to the ground, despite the open and obvious nature of the dangers involved. Davenport v. M/I Schattenstein Homes (1993), 96 Ohio App.3d 237. For the foregoing reasons, this court finds that the trial court properly entered summary judgment in favor of Goodyear Tire and Rubber Co. and Century Sign Co., defendants-appellees, as no genuine issue of material fact existed and defendants-appellees were entitled to judgment as a matter of law. Judgment of the trial court is affirmed. -12- 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. NAHRA, J. and TIMOTHY E. McMONAGLE, J., CONCUR. DAVID T. MATIA PRESIDING 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 .