COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70304 RICHARD A. CLARK : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION THE ALBERT HIGLEY CO., ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-270321 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: JOSEPH L. COTICCHIA, ESQ. THOMAS P. O'DONNELL, ESQ. 1640 Standard Building Law Director of Highland Hills Cleveland, Ohio 44113 Skylight Office Tower 1660 W. Second Street, #700 Cleveland, Ohio 44113 WILLIAM SCHMITZ, ESQ. JOHANNA M. SFISCKO, ESQ. 55 Public Square 1100 Illuminating Building Cleveland, Ohio 44113 - 2 - DYKE, J.: Plaintiff Richard A. Clark appeals from the judgment for the defense in his action for negligence. For the reasons set forth below, we affirm. On May 11, 1994, plaintiff filed this action against The Albert A. Higley Co. and Roediger Construction Co. alleging that while working on the construction of the Community Education Village in Perry, Ohio, he fell into an unguarded piping trench and sustained injuries. He therefore claimed that these defendants failed to provide him with a safe place to work, in violation of R.C. 4101.12, the frequenter statute. Both defendants submitted answers in which they denied liability. On January 17, 1996, plaintiff filed a motion in limine to exclude inter alia, any evidence going to the defense of compara- tive negligence. The trial court denied the motion and the matter proceeded to a jury trial on January 29, 1996. The evidence demonstrated that in 1990, the Perry Local School District (hereafter referred to as "Perry" or "the school district") entered into a series of agreements for the construction of educational and community facilities. On December 18, 1990 the school district agreed that defendant The Albert M. Higley Co. (hereafter referred to as "Higley") would serve as the construction manager for the project. Pursuant to Section 1.2.4 of the parties' agreement, Higley was required to: - 3 - "Review the safety programs developed by each of the Contractors as required by their Contract Documents and coordinate the safety programs for the project." Moreover, Higley was required to perform any "services made neces- sary by the default of a contractor," and administer the contracts of construction pursuant to, inter alia, the 1980 Edition of AIA Documents A201/CM, General Conditions of the Contract for Con- struction Management Edition. This document in turn provided in relevant part as follows: 2.3.5 Neither the Architect nor the Construction Manager will be responsible for or have control or charge of construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and neither will be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. *** 2.3.7 The Construction Manager will schedule and coordinate the Work of all contractors on the Project including their use of the site. *** In its capacity as construction manager, Higley prepared a Project Procedure Manual and Bid package which likewise incorporated the General Conditions set forth in AIA Document A201/CM, as did the Standard Form of Agreement Between Owner and Contractor which each of the trades working on the project signed. With regard to the responsibilities of each contractor, AIA Document A201/CM provided in relevant part as follows: 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. 10.1.5 The contractor agrees that the prevention of accidents to workmen engaged upon or in the vicinity of its work is its responsibility. The contractor agrees to comply with all Federal, State, Municipal and local laws, - 4 - ordinances, rules, regulations and requirements concerning safety as shall be applicable to the Work, including any others, the Federal Occupational Safety and Health Act of 1970, as amended, and all standards, rules, regulations and orders which have been or shall be adopted or issued thereunder, and shall provide all barricades, handrails, etc., required to enable the contractor to perform his work, and maintain the same in a secure and safe manner. When so ordered, the con- tractor shall stop any part of the Work which the Construction Manager deems unsafe until corrective measures satisfactory to the Construction Manager have been taken. Should the contractor neglect to take such corrective measures, the Construction Manager may do so at the cost and expense of the contractor. Failure on the part of the Construction Manager to stop any practice shall in no way relieve the contractor of its respon- sibility therefor. In addition, this contractor shall be monetarily responsible for any fines levied against the Construction Manager due to citations issued by OSHA for unsafe conditions created by the contractor or its personnel of subcontractors. 10.2.1 The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to: 1. all employees on the Work and all other persons who may be affected thereby; 2. all the Work and all materials and equipment to be incorporated there- in, whether in storage on or off the site, under the care, custody or control of the Contractor or any of the Contractor's Subcontractors or Sub-subcontractors; 3. other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relo- cation or replacement in the course of construction; and 4. the work of the Owner or other separate contractors. - 5 - 10.2.2 The Contractor shall give all notices and comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the safety or persons or property or their protection from damage, injury or loss. 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and the progress of the Work, all reasonable safeguards for safety and protec- tion, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users or adjacent utilities. 10.3.1 In any emergency affecting the safety of persons or property the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Any additional compensation or extension or time claimed by the Contractor on account of emergency work shall be determined as provided in Article 12 for Changes in the Work. Thus, plaintiff's employer, Acme Arsena Co., the company retained to perform drywall and related work, agreed pursuant to the AIA Document A201/CM that the Construction Manager Higley was not responsible for safety precautions, and that it was responsible for initiating, supervising, and maintaining safety precautions and that the prevention of accidents in the vicinity of its work was its responsibility. Additional contract documents provide that each contractor is responsible for, inter alia, "Barricades, warning signs and lights." Acme's own safety standards in turn provide that each employee is responsible for reporting hazards to his or her supervisor and that employees are not required to work in unsafe areas. In addition Acme's safety rule no. 18 provides that: Floor openings shall be planked over or barricaded, and slab edges of an open building protected by standard - 6 - railing or equivalent and toe boards. Employees shall maintain these protective barriers and shall not disturb or remove them except as directed by the supervisor. If temporary removal is required, employees removing these barriers shall be responsible for their replacement as soon as circumstances permit. The evidence further demonstrated that defendant Roediger was retained by Perry to perform rough carpentry and other installa- tions. Roediger also entered into a contract with Perry to perform miscellaneous work, as directed by Higley, which included various safety and cleanup jobs. In this connection, Higley instructed Roediger to perform a particular service, Roediger performed the job, then Higley billed the contractor ordinarily responsible for such job. The evidence next indicated that at a preconstruction con- ference in June 1991, conducted by Higley for the carpentry contractors and others, Higley indicated that "All OSHA regulations are to be followed and will be enforced by the Construction Manager." Several months later, Higley sought clarification from the Occupational Safety and Health Administration (hereafter referred to as "OSHA") regarding its requirements for warning devices for trenches. Thereafter, OSHA submitted a response to Higley which indicated that warning lines or standard guard rails must be erected around all sides of trenches. Pursuant to this response, Higley directed Roediger to install handrails and cover trenches at the site, and Roediger performed this work in December 1991. Further, according to defendants, the safety devices were removable so that contractors could work in the area, but each - 7 - contractor was required to replace the devices after removing them for work. In emergencies, Higley would instruct Roediger to remedy the problem, then charge the contractor for Roediger's work. At weekly progress meetings, personnel from Higley reviewed various safety reports and identified problems at the site. In particular, problems concerning the excavations and trenches on the site were discussed. At various meetings, the Higley representative highlighted safety problems which the contractors were to rectify, and at a meeting on November 14, 1991, personnel from Higley instructed all contractors to make sure that they are in compliance with OSHA specifications for such excavations. Likewise in January 1992, Higley noted that contractors would be back charged for removing or destroying safety barricades and not replacing them. In other instances, safety concerns were raised by the contractors, and the Higley representative stated that Higley would look into the matter. Finally, with regard to plaintiff's accident, the evidence demonstrated that on May 15, 1992, plaintiff was installing stud walls for dry wall in the video storage room of the project and fell into an unguarded trench. The evidence indicated that prior to his accident, plaintiff complained to Al Marotta, his supervisor at Acme, regarding the safety of the trenches but he nonetheless turned down another job and chose to remain at the site. In addition, plaintiff had been working in this area for several days "installing angles along the piping trench" prior to the day he - 8 - fell. Thereafter, following plaintiff's injury, Roediger covered the trenches in this area. The matter was subsequently submitted to the jury. The jury returned a verdict for the defense and concluded in special interrogatories that plaintiff was 100% negligent and this negligence proximately caused his injuries. Plaintiff now appeals assigning a single error for our review. Plaintiff's assignment of error states: THE TRIAL COURT ERRED IN PERMITTING THE JURY TO CONSIDER COMPARATIVE NEGLIGENCE ON THE PART OF THE PLAINTIFF. Within this assignment of error, plaintiff maintains that the Supreme court's decision in Cremeans v. Willmar Henderson Mfg. Co. (1991), 57 Ohio St.3d 145 precludes consideration of an employee's comparative negligence in an action which occurs in the course of that employee's employment. We disagree. In Cremeans, the plaintiff was injured while operating a loader lacking a protective cage in a fertilizer bin. As he was exiting the bin, fertilizer collapsed and wedged him between the seat of the loader and a section of the bin. The trial court determined that the plaintiff had assumed the risk of his injuries and it entered summary judgment for the manufacturer of the loader. The court of appeals reversed, "finding a genuine issue of material fact as to whether Cremeans assumed the risk of his injury, and the extent, if any, to which Cremeans conduct contributed to his injury." Id., at 146. - 9 - The supreme court affirmed the appellate court and remanded the matter. In its syllabus, the court stated, "[a]n employee does not voluntarily or unreasonably assume the risk of injury which occurs in the course of his or her employment when that risk must be encountered in the normal course of his or her employment in the normal performance of his or her required job duties and responsibilities." The lead opinion, written by Justice Douglas, and supported by A. William Sweeney, "essentially called for the abolition of the defense of assumption of the risk in all cases involving a work-related injury *** based upon the perception of the economic reality of the modern workplace, in that since an employee cannot afford to lose a job, he must perform any task that his employer requires him to do." Evanoff v. Grove Mfg. Co. (1994), 99 Ohio App.3d 339, 343. Additionally, the lead opinion asserted that since the defense of assumption of the risk is merged with the defense of contributory negligence pursuant to the court's prior holding in Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, paragraph one of the syllabus, the defense of contributory negligence was likewise "inapplicable to limit or bar Cremeans from recovery on his products liability claim based upon negligence." Justices Resnick and Brown did not concur with the lead opinion, but did concur with the syllabus and the judgment. Justices Moyer, Holmes and Wright dissented. Cremeans is therefore a plurality opinion. See Hendrick v. Motorist Mut. Ins. Co. (1986), 22 Ohio St.3d 42, 44. Accordingly, the rule of law of - 10 - Cremeans is contained only in the syllabus, and the remaining language within the lead opinion is simply not the law. Id.; Demetry v. Kim (1991), 72 Ohio App.3d 692, 696. Accord Evanoff v. Ohio Edison Co. (Nov. 10, 1994), Portage App. No. 93-P-0015, unreported. The Evanoff court noted: "Given that a majority of the justices did not adopt the plurality's statement concerning the application of contributory negligence *** it follows that such statement is not the `law' of that particular case." If in turn, a majority of the Supreme Court of Ohio has rejected the plurality's statement as to the appli- cability of the defense of contributory negligence in products liability actions, it follows that the plur- ality's statement should not be extended to any other type of action in which an employee attempts to recover damages for an injury suffered in an industrial accident. Accordingly, we reject appellant's contention that as a matter of law, the defense of contributory negligence can never be asserted to limit or bar an employee' s recovery in a negligence action. Indeed, one appellate court has noted that following Cremeans, the supreme court remanded a matter involving injury at the work site, for "an allocation of negligence between the parties." Calmes v. Goodyear Tire & Rubber Co. (Nov. 10, 1993), Summit App. No. 16163, unreported. The court stated: This court finds it significant that the Supreme Court remanded this case for an allocation of negligence between the parties after rendering its decision in Cremeans; such timing sends a message about the meaning of both cases. If the court had meant in Cremeans to eliminate contributory negligence in the employment setting, not only would the judgment in Cremeans have reflected that position, but also Calmes would not have resulted in a remand. Instead, the court remanded this case for a new trial specifically to reallocate fault between Goodyear and Mr. Calmes. Id., at 2. - 11 - Moreover, this court has previously determined that the statement in the lead opinion of Cremeans concerning the defense of contributory negligence is simply inapplicable in an action for negligence. See Corso v. Regan (June 2, 1994), Cuyahoga App. No 65077, unreported. The Court of Appeals for Erie County reached the same conclusion, see Rockwell v. Roberts (Feb. 19, 1993), Erie App. No. E-91-43, unreported, as did the Summit County Court of Appeals in Calmes v. Goodyear Tire & Rubber Co., supra. In addition, subsequent to November 30, 1983, the date on which Mr. Cremeans sustained his injury, the General Assembly adopted R.C. 2315.19 which provides that contributory negligence of the complainant may be asserted as an affirmative defense to a negligence claim. Cf. Whiston v. Bio-Lab, Inc. (1993), 85 Ohio App.3d 300, 307 (holding that R.C. 2315.20 which provides for the defense of assumption of the risk sets forth the governing law, subsequent to the supreme court's decision in Cremeans). See, also, Carrell v. Allied Products, Corp. (July 3, 1995), Marion App. No. 9-94-24, unreported: We do not overrule our decisions reached in Sigman [v. General Elec. Co. (1991), 77 Ohio App. 430] and Ball [v. M.R. Philpot Masonry Co. (April 10, 1991), Shelby App. No. 17-90-4, unreported] nor do we conclude that the statute overruled Cremeans; rather, we simply hold that product liability claims arising after January 5, 1988, are governed by the statute, and consequently, the defense of assumption of the risk is statutorily available ****. Finally, we note that the duty owed to frequenters is no more than a codification of the common-law duty owed by a landowner to - 12 - invitees. Eicher v. United States Steel Corp. (1987), 32 Ohio St.3d 248, 249; Davenport v. M/I Shottenstein Homes (1993), 96 Ohio App.3d 237, 240. The Eicher Court explained: The duty to frequenters of places of employment, 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 the employee of an independent contractor. As stated in Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629; 'Where an independent contrac- tor undertakes to do work for another in the very doing of which there are elements of *** danger ***, no liability *** ordinarily attaches to the one who engaged the services of an independent contractor.' (Emphasis added.) Id. at paragraph one of the syllabus. Such an invitee may recover when the injury results '*** by reason of the abnormally dangerous condition of the premises, only if the principal employer has, and the servant has not, actual or constructive notice of the existence of such condition.' Davis v. Charles Shutrump & Sons Co. (1942), 140 Ohio St. 89, 23 O.O. 299, 42 N.E.2d 663, paragraph one of the syllabus. Id. Further, where there is no evidence that the defendant breached a duty owed to the plaintiff, the plaintiff has failed to make a prima facie case of negligence and questions concerning the defendant's affirmative defenses do not arise. See Carano v. Servisteel (June 16, 1993), Summit App. No. 92CA 005480 unreported. In this instance, the evidence demonstrated that plaintiff had actual notice of the existence of the trenches prior to his fall. The jury may have therefore concluded that defendant did not owe him a duty to protect him from the trenches, and any question regarding the affirmative defense of contributory negligence would simply not arise. - 13 - For the foregoing reasons, the judgment of the trial court is affirmed. - 14 - It is ordered that appellees recover of appellant 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. BLACKMON, P.J., AND MCMONAGLE, J., CONCUR ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .