COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69900 LAWRENCE W. FULTON, ET AL. : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY v. : : AND MCCARTHY BROTHERS COMPANY, : ET AL. : OPINION : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JULY 25, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-251469. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Joseph A. Dubyak, Esq. Paul V. Wolf, Esq. Dubyak & Goldense 920 Terminal Tower Cleveland, OH 44113-2206 For Defendant-Appellee Craig A. Marvinney, Esq. McCarthy Brothers Company: Nancy F. Zavelson, Esq. Reminger & Reminger 113 St. Clair Building Cleveland, OH 44114 For Defendant-Appellee Mark R. Chulick, Esq. Donleys Inc.: Skylight Office Tower, Suite 486 1660 West Second Street Cleveland, OH 44113-1454 For Defendant-Appellee Bruce S. Goldstein, Esq. Independence Excavating 3100 One Cleveland Center Company: 1375 East 9th Street Cleveland, OH 44114 -2- DAVID T. MATIA, J.: Lawrence Fulton, et.al., plaintiffs-appellants, appeal the decision of the Cuyahoga County Court of Common Pleas granting summary judgment in favor of McCarthy Brothers Company, Donley's Inc., and Independence Excavating Company, defendants-appellees. Plaintiffs-appellants raise two assignments of error. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS The instant case arose out of an injury sustained at a construction project known as the University Bed Tower Project at University Hospital ("University") in Cleveland, Ohio. The work to be performed involved the relocation of sewer lines beyond the periphery of the buildings' foundations. Due to the inter- relationship between the project and the existing sewers in the area, special sewer chambers called "junction chambers" had to be established to connect the various subterranean lines. On or about April 7, 1989, University contracted with Engineering Science for all civil engineering on the sewer and sewer line relocation. This included preparing all technical specifications for construction of Junction Chamber No. 2. Lawrence Fulton, plaintiff-appellant, was employed by Engineering Science and was in charge of the Bed Tower Project. As such, plaintiff-appellant was familiar with construction sites and was a frequent visitor to the Bed Tower Project prior to June 25, 1991. University also employed the McCarthy Brothers Company ("McCarthy"), defendant-appellee, as construction manager. As -3- construction manager, McCarthy scheduled and coordinated completion of the work and subcontracted all the construction work to be performed. McCarthy did no construction or design work on the project. McCarthy subcontracted with Donley's Inc. ("Donley's"), defendant-appellee, for certain concrete work on the project including the construction of Junction Chamber No. 2. The cement was poured into forms that were erected and which had guardrails attached to them. The chamber was topped with a six foot by six foot rectangular area with a manhole extension. When Donley's completed its work on Junction Chamber No. 2, the forms and guardrails were removed and re-used in other areas of the project. Donley's subcontracted the excavating/back filling and sewer pipe installation work to Independence Excavating Company ("Independence"), defendant-appellee. At the time of the accident Independence had not yet back-filled the area around Junction Chamber No. 2. Thus the distance from the top of the manhole to the bottom of the chamber was approximately 19 feet at the time of the accident. Conflicting evidence was submitted as to which party initiated an inspection of Junction Chamber No. 2. Nevertheless, certain sewers, including Junction Chambers 1 and 2, were ready for inspection by Engineering Science on June 25, 1991. The inspection, conducted by plaintiff-appellant, was to finalize a couple of items and/or some deficiencies observed on prior visits by inspectors and/or design team members from Engineering Science. -4- McCarthy's construction supervisor, Timothy Headtke, requested two laborers from Independence be assigned to assist plaintiff- appellant with the inspections. In all, Mr. Headtke, Brian Wilson of Engineering Science, and the two Independence laborers accompanied plaintiff-appellant on his inspection. Plaintiff- appellant had previously requested McCarthy to provide access to the chambers, certain lighting revisions, an electrical outlet for a ventilation blower and finally, for the manhole cover on top of the chamber to be removed. McCarthy complied with the request and further provided the traffic control necessary for the inspection to take place at Junction Chamber No. 1. This site still had the guardrails around the manhole area and the manhole cover had been removed. Whether it had been removed before or at the same time the inspection team reached Junction Chamber No. 1 is unclear. However, the manhole cover was not removed by plaintiff-appellee or Brian Wilson. In fact, plaintiff-appellant testified: We weren't going to remove manholes. That was part of something we were expecting -- a task we were expecting some assistant -- that somebody else would do. After approximately forty-five minutes to an hour, the first chamber had been inspected. The inspection crew walked through the busy construction site and reached Junction Chamber No. 2. Plaintiff-appellant observed a wooden ladder that had been placed there by McCarthy and climbed to the top of the chamber. Once there, plaintiff-appellant observed there were no guardrails or -5- tie-offs and that the manhole cover had not been completely removed. Plaintiff-appellant obtained a pick and attempted to move the manhole cover. The pick slipped from the manhole cover and plaintiff-appellant fell back over the edge of the elevated manhole area to the bottom of the trench approximately 19 feet below. Due to injuries sustained, Lawrence Fulton and his wife, Roberta, plaintiffs-appellants, filed a complaint against 1 McCarthy, Donley's and Independence, defendants-appellees. The complaint alleged various theories of negligence against all defendants-appellees. Additionally, plaintiffs-appellants alleged violations of relevant OHSA and state safety regulations against McCarthy. Finally, plaintiffs-appellants made claims sounding under the Ohio Frequenters Statute, R.C. 4101.11, against defendants-appellees for failure to provide Lawrence Fulton, plaintiff-appellant, with a safe place to carry forth his employment. All of the defendants-appellees' answered the complaint by way of denial and the case proceeded through the discovery phase. After lengthy discovery, all defendants-appellees filed their respective motions for summary judgment. All of these motions raised, among other things, the affirmative defense of "primary assumption of risk." Plaintiffs-appellants timely opposed these 1 University Hospitals of Cleveland was also named a defendant and was granted summary judgment. However, they are not a party to this appeal. -6- motions. On October 12, 1995, the trial court granted Donley's and Independence's, defendants-appellees', motions. On November 1, 1995, the trial court similarly granted McCarthy's, defendant- appellee's, motion. It is from these rulings plaintiffs- appellants have timely appealed. II. SECOND ASSIGNMENT OF ERROR We will first consider Lawrence Fulton, et al.'s, plaintiffs- appellants, second assignment of error as it is dispositive of this appeal: II. THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANTS (SIC) IN GRANTING DEFENDANT- APPELLEE'S (SIC) MOTIONS FOR SUMMARY JUDGMENT WHERE PLAINTIFFS CLAIMS WERE NOT BARRED BY THE DOCTRINE OF PRIMARY ASSUMPTION OF THE RISK. A. ISSUE RAISED: WHETHER THE DOCTRINE OF PRIMARY ASSUMPTION OF RISK BARS PLAINTIFFS-APPELLANTS' CLAIMS. Plaintiffs-appellants argue the trial court committed prejudicial error in granting defendants-appellees' motions for summary judgment based upon the doctrine of primary assumption of risk. Specifically, plaintiffs-appellants argue primary assumption of the risk implies no duty. Since McCarthy, defendant-appellee, actively participated in the preparation of the inspection site, it owed a duty of ordinary care. As such, plaintiffs-appellants argue, the defense of primary assumption of the risk is incompatible with McCarthy's actions. Plaintiffs-appellants' second assignment of error is not well taken. -7- -8- B. PRIMARY ASSUMPTION OF RISK In Anderson c. Ceccardi (1983), 6 Ohio St.3d 110, the Ohio Supreme Court held that the General Assembly's then-recent enactment of R.C. 2315.19 (the contributory negligence statute) required that the defense of implied assumption of risk and contributory negligence be merged. The court held: Under prior cases, the overlap of these doctrines [implied assumption of risk and contributory negligence] posed no problems because in practice it did not matter whether the plaintiff's conduct was denominated as assumption of risk or contributory negligence, since both stood as absolute bars to a plaintiff's recovery. However, now, under R.C. 2315.19, if a plaintiff's conduct constitutes both contributory negligence and assumption of risk, continued adherence to the differentiation of the doctrines can lead to the anomalous situation where a defendant can circumvent the comparative negligence statute entirely by asserting the assumption of risk defense alone. Although the Anderson court merged implied assumption of risk with contributory negligence, the court found that two other types of assumption of risk did not merge with contributory negligence -- express (e.g. contractual) assumption of risk and primary ("no duty") assumption of risk. Gallagher v. Cleveland Browns (1996), 74 Ohio St.3d 427. When a defendant raises primary assumption of risk, he/she claims to have no duty whatsoever to the plaintiff. Thus primary assumption of risk denies negligence, as a matter of law, because negligence necessarily implies duty. Primary assumption of risk is invoked where the activity undertaken involves such obvious -9- and unavoidable risks that no duty of care is said to attach. Holmes v. Health & Tennis Corp. of Am. (1995), 103 Ohio App.3d 364. C. THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANTS-APPELLEES' MOTIONS FOR SUMMARY JUDGMENT. We hold that the actions of plaintiff-appellant, Lawrence Fulton, abrogated any duty which may or may not have attached to any of the defendants-appellees. Accordingly, the trial court properly granted summary judgment on the doctrine of primary assumption of risk. In the case sub judice, plaintiff-appellant testified during depositions that: 1) he was aware there were no guardrails and/or tie-offs on the top of Junction Chamber No. 2; 2) he was aware of the drop-off on the sides as they were open and obvious; 3) he knew that he could fall into the drop-off if he was not careful; 4) he could have easily declined to inspect Junction Chamber No. 2 if he believed it to be dangerous; 5) it was the job of the laborers to remove the manhole covers; and 6) he could have requested one of the laborers to remove the manhole cover completely. A plaintiff who reasonably chooses to proceed in the face of a known risk is deemed to have relieved the defendant of any duty to protect him/her. See Siglow v. Smart (1987), 43 Ohio App.3d 55. From the above-mentioned facts, we believe plaintiff- appellant, with full knowledge of the potential risks and consequences, voluntarily chose to attempt to remove the manhole -10- cover. Plaintiff-appellant proceeded to remove the manhole cover knowing he could have allowed the laborers provided by McCarthy to do it. In fact, that was one of the reasons the laborers were assigned to assist the inspection team. For these reasons, we find the trial court did not err in granting summary judgment for the defendants-appellees based upon the doctrine of primary assumption of risk. Plaintiffs- appellants' second assignment of error is not well taken. III. FIRST ASSIGNMENT OF ERROR Lawrence Fulton, et al.'s, plaintiffs-appellants, first assignment of error states: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE A JURY REASONABLY COULD HAVE FOUND THAT APPELLEE MCCARTHY BROTHERS COMPANY WAS NEGLIGENT AND FAILED TO PROVIDE PLAINTIFF WITH A SAFE PLACE TO CARRY OUT HIS EMPLOYMENT IN CONTRAVENTION OF THE OHIO FREQUENTER'S ACT, R.C. 4101.11. A. ISSUE RAISED: WHETHER THE TRIAL COURT PROPERLY GRANTED MCCARTHY'S, DEFENDANT-APPELLEE'S, MOTION FOR SUMMARY JUDGMENT. Due to our holding in plaintiff-appellant's second assignment of error, this issue has been rendered moot. App.R. 12(A)(1)(c). Judgment of the trial court affirmed. -11- 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. SARA J. HARPER, P.J., CONCURS IN JUDGMENT ONLY; and TIMOTHY E. McMONAGLE, J., CONCURS WITH SEPARATE CONCURRING OPINION. DAVID T. MATIA 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. -12- COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69900 LAWRENCE FULTON, et al : : Plaintiff-appellants : : vs. : CONCURRING OPINION : McCARTHY BROTHERS CO., et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 25, 1996 TIMOTHY E. McMONAGLE, J., CONCURRING: While I agree with the majority as to the outcome of this appeal, I am compelled to disagree with the rationale employed. The majority relies upon the doctrine of primary assumption of risk in determining that the conduct of plaintiff-appellant Fulton abrogated any duty which may have been owed by any of the defendants-appellees. In so doing, the majority opines that Fulton voluntarily and with full knowledge of the potential risks proceeded to engage in conduct that eventually led to his injuries, thereby relieving defendants-appellees from any duty to protect him. - 2 - The doctrine of assumption of risk has often been the subject of criticism for the confusion it evokes. See Gallagher v. Cleveland Browns Football (1996), 74 Ohio St.3d 427. See, also, Rini v. Oaklawn Jockey Club (C.A.8, 1988), 861 F.2d 502. Divided into primary and secondary assumption of risk, the latter has been determined to be a variant of contributory negligence and within the purview of the comparative negligence statute apportioning fault. R.C. 2315.19; Anderson v. Ceccardi (1983), 6 Ohio St.3d 110. Primary assumption of risk, on the other hand, is not encompassed within this statute and, as such, remains a complete bar to recovery. Id. Implicit in the doctrine of secondary or implied assumption of risk is that defendant owes plaintiff some duty, but it is plaintiff's acquiescence in or appreciation of a known risk that acts as a defense to plaintiff's action. Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 37. This variety of assumption of risk includes those situations where the risk is so obvious that plaintiff must have known and appreciated the risk, thereby voluntarily acknowledging that the potential exists for injury. Id. Moreover, plaintiff's conduct in assuming such a risk is unreasonable or lacking in due care for his or her safety. Siglow v. Smart (1987), 43 Ohio App.3d 55, 59. To the contrary, primary assumption of risk has nothing whatsoever to do with a plaintiff's conduct. Mima v. Akron (1986), 31 Ohio App.3d 124, 125. A plaintiff's conduct is - 3 - immaterial in establishing primary assumption of risk because the focus must be on the lack of duty owed. Id. at 126. To the extent that the majority rests its decision on the conduct of Fulton in abrogating any duty owed to him, I respectfully disagree. Rather, the focus should be on the lack of duty owing Fulton by defendants-appellees. Construed in this context, the issue becomes whether McCarthy as general contractor and Independence and Donley's as subcontractors, owed any duty to Fulton, an employee of an independent contractor. Fulton contends that McCarthy actively participated in the activity which led to his injuries and thus is liable to him pursuant to the frequenter statute, R.C. 4101.11. Specifically, Fulton argues that McCarthy directed and controlled the site preparation by not only choosing which sites were to be inspected but also in implementing the necessary safety procedures so that Fulton could conduct his inspection. While not expressly articulated in his brief on appeal as it was in his opposition to defendants-appellees' motions for summary judgment in the court below, Fulton further contends that Independence and Donley's likewise actively participated in preparing the site for inspection by failing to properly remove the manhole cover and by failing to provide guardrail protection. Under the frequenter statute, "[e]very employer *** shall furnish a place of employment which shall be safe for the - 4 - employees therein and for frequenters thereof." R.C. 4101.11. The term "frequenter" is defined by R.C. 4101.01(E) as "every person, other than an employee, who may go in or be in a place of employment under circumstances which render him other than a trespasser." This includes an employee of an independent contractor. Eicher v. United States Steel Corp. (1987), 32 Ohio St.3d 248. The duty owed to frequenters is no more than a codification of the common-law duty owed by an owner or occupier of premises to invitees, requiring that the premises be kept in a reasonably safe condition and that warning be given of dangers of which he has knowledge. Id. at 249. However, the duty to frequenters as set forth in R.C. 4101.11 does not extend to hazards which are inherently and necessarily present because of the nature of the work performed where the frequenter is an employee of an independent contractor. Id. In this case, Fulton's inspection of Junction Chamber No. 2 required him to ascend approximately nineteen feet above grade to enable his descent into the junction chamber. It is undisputed that Fulton designed this particular chamber and was fully aware that the performance of this inspection necessarily entailed a potentially hazardous situation. Furthermore, a construction site has been held to be an inherently dangerous setting. Bond v. Howard Corp. (1995), 72 Ohio St.3d 332, 336 citing Whitelock v. Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594, 600. - 5 - Nonetheless, a duty would still be owed Fulton if defendants-appellees actively participated in the job operation. Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206. One who interferes with or dictates the mode and manner in which a job is performed by an independent contractor has actively participated and may be held liable for any resultant injuries. Id. at 208. The same is true where two independent contractors are working on the premises and there is no contractual relationship between them. Kucharski v. Natl. Eng. & Contracting Co. (1994), 69 Ohio St.3d 430, 434. On the other hand, merely serving in a supervisory capacity or retaining control over safety procedures does not rise to the level of active participation. Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, 113. Furthermore, the retention of authority to monitor and coordinate activities does not constitute "active participation." Id. "Actively participated" means directing the activity which resulted in the injury and/or giving or denying permission for the critical acts that led to the employee's injury. Bond v. Howard Corp. (1995), 72 Ohio St.3d 332, 337. Active participation denotes some direct involvement in the work of an independent contractor, such as instructing the independent contractor as to "how" to perform certain work rather than just "where" and "when" to perform. Gross v. Western-Southern Life Ins. Co. (1993), 85 Ohio App.3d 662, 670. - 6 - In this case, McCarthy had no direct involvement in Fulton's inspections. He merely coordinated where and when the inspections were to take place and did not dictate how Fulton was to perform them. Fulton contends that the failure of McCarthy and Donley's to provide guardrails and of Independence to adequately remove the manhole cover effectively resulted in a refusal on the part of defendants-appellees to eliminate hazards which they, in the exercise of ordinary care, could have eliminated. Fulton makes a disingenuous attempt to analogize to Hirschbach. Fulton did not inform or otherwise notify McCarthy or his representatives that the site, as prepared, was unsafe. To the contrary, Fulton proceeded to conduct his inspection of this junction chamber because he believed it was safe. Consequently, the site, as prepared, cannot be construed as a refusal to eliminate a hazardous condition on the part of defendants- appellees based on Fulton's general pre-inspection request for site preparation. In light of the preceding analysis, McCarthy, Donley's and Independence were neither directly involved nor did they otherwise actively participate in the performance of Fulton's inspection of Junction Chamber No. 2. Consequently, no duty of care was owed by them to Fulton, and it was not error for the trial court to grant summary judgment to defendants-appellees. Whether characterized as primary assumption of risk or lack of a - 7 - necessary element in establishing negligence, the result is the same. Mima v. Akron, 31 Ohio App.3d at 127. See, also, Gallagher v. Cleveland Browns, 74 Ohio St.3d at 432, footnote 3. Accordingly, I would affirm the judgment of the trial court .