COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70833 MAX E. GUM, JR. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CLEVELAND ELECTRIC ILLUMINATING CO. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 13, 1997 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 256705 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JOHN G. LANCIONE, ESQ. GREGORY A. CADA, ESQ. Lancione & Simon, L.L.P. GEORGE R. HICKS, JR., ESQ. 1300 East Ninth Street 6200 Oak Tree Boulevard Suite 1717 Room 455 Cleveland, Ohio 44114 Independence, Ohio 44131 JOHN A. LANCIONE, ESQ. Becker & Mishkind Co., L.P.A. 1660 West Second Street Suite 660 Cleveland, Ohio 44113 - 3 - JAMES M. PORTER, P.J., Plaintiff-appellant Max E. Gum, Jr. appeals from the trial court's order granting summary judgment to defendant-appellee Cleveland Electric Illuminating Company (CEI) on plaintiff's claim for injuries resulting from contact with defendant's electrical power lines. Plaintiff contends disputed issues of material fact precluded summary judgment. We disagree and affirm for the reasons hereinafter stated. Plaintiff Gum suffered severe electrical burns to his hands and fingers on January 6, 1993 while working on a roof constructed near overhead CEI power lines. The events leading to this unfortunate episode follow. Plaintiff Gum was employed by Wayne Wright Construction, Inc. (WWC) which was engaged in building a two story addition above a preexisting detached three car garage on residential property on Archwood Avenue in Cleveland. CEI has maintained a primary power line above the preexisting garage since 1936. Prior to commencement of the subject construction project in November 1992, CEI's distribution lines met applicable clearance standards in compliance with the National Electrical Safety Code. WWC commenced construction above the original garage in November 1992. By late November or early December, framing for the new roof was in place. Plaintiff participated in the framing of the roof, and worked intermittently at the location until be began - 4 - performing shingling work when the subject accident occurred on January 6, 1993. The newly erected roof was approximately four to five feet below CEI's power lines. One power line was over the peak, a few feet in from the edge. Another line was a short distance out from the edge of the roof. The voltage between the two power lines was approximately 4,340 volts. Voltage to ground from each line was theoretically 2,500 volts. CEI was not notified that the structure was to be built close to its preexisting power line or that construction work was to be performed in proximity thereto. CEI has an on-going program for inspection of its overhead distribution lines which includes looking for line-to-structure clearance deficiencies. Inspections are called for annually, with "close" walk-throughs once every five years, and "limited" inspections in the intervening four years. CEI's evidence indicated that its inspection program exceeds industry practice and the highest degree of care consistent with the practical operation of its business. The subject power line was last previously inspected in the Spring of 1992 by a "close" walk-through inspection months prior to construction of the new roof. The power lines were first observed by WWC workers during framing work for the roof in late November or early December. Prior to the accident, after erection of the roof, workers, including plaintiff Gum, bumped one of CEI's wires but were not shocked. - 5 - Construction industry safety standards and practices must meet or exceed the requirements under the Occupational Safety and Health Act ("OSHA") regulations. As a result, the duties of an employer such as WWC include ascertaining the nature and danger of power lines near proposed construction, prohibiting construction work near power lines until they are rendered safe, and contacting the power company to render the lines safe during construction. WWC's owner was aware that CEI's power line was in close proximity to the work and he had bumped into it himself. Although he was not aware of the specific voltage in the power line, he was aware that it was an electric line. He assumed it was household current, but he was aware that 110-220 volt household current could injure or kill a person. He did not contact CEI and was not aware of anyone else who contacted CEI about the project. Plaintiff Gum had participated in WWC's work in putting up the rafters, sheeting and roofing felt prior to the accident. He was under the supervision of Dale Pyles, WWC's foreman, who was responsible for safety matters. Plaintiff Gum personally recognized CEI's line over the roof as a problem when he "first got up there," and had bumped the line. The foreman bumped it also. Gum had learned as a child to stay away from such wires, considered the line to be dangerous, and recognized it as a fall hazard and a potential shock hazard if it carried electricity. Days before the accident, he told Mr. Wright that he did not like working around wires. Despite his concern, - 6 - Gum did not take any steps to protect himself from contact with the wire and continued to work around and near the line. He complained to Foreman Pyles about the proximity of the wires "a couple of seconds" before the accident occurred. On January 6, 1993, while performing shingling work, Gum arose, bumped the wire over the roof with his nose, lost his balance momentarily and reflexively grabbed one and then both of the wires with his hands resulting in the loss of five fingers from severe burns. On December 29, 1993, plaintiff filed his complaint against his employer, WWC, Steve McQuillin, owner of the garage premises and designer of the building addition, McQuillin's company, the City of Cleveland, which issued permits and inspected construction and which provided electric service to the McQuillin premises through Cleveland Public Power, and CEI, which owned the power line in question. Summary judgment was granted in favor of WWC which asserted workers' compensation defenses. The claims against Steven McQuillin and his company were settled and dismissed. Summary judgment was also granted in favor of the City of Cleveland. Following extensive discovery and briefing, on May 22, 1996, the trial court granted CEI's motion for summary judgment giving rise to the instant appeal. Plaintiff's sole assignment of error states as follows: - 7 - I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Under Civ.R. 56, summary judgment is proper when: (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; and (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 the party against whom the motion for summary judgment is made. State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. - 8 - In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. Defendant CEI moved for summary judgment on three grounds: 1) primary assumption of the risk by reason of plaintiff's prior knowledge of the power line hazards to which he was exposed but continuing to work near them without precautions; 2) no breach of duty by CEI due to its lack of knowledge of the new construction creating the hazard and its compliance with the highest standard of - 9 - care consistent with the practical operation of its business in the inspection of its facilities; and 3) the superseding, independent negligence of plaintiff's employer, WWC, which had actual knowledge of the closeness of the power line but failed to observe construction industry standards by notifying CEI and keeping its employees away from the power line until the location was rendered safe by CEI. Defendant offered expert testimony to support a theory that state-of-the-art industry practices required CEI to train its meter readers to look for line to structure clearance violations in the course of their neighborhood rounds. We will address the primary assumption of risk argument which we find dispositive of the appeal. The Supreme Court of Ohio has described the defense of assumption of risk as follows in Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 112: *** (1) consent or acquiescence in (2) an appreciated or known (3) risk ***. The practicalities of proof require that the defense of assumption of the risk also be applicable where the risk is so obvious that plaintiff must have known and appreciated it. In Anderson, the Supreme Court announced its merger of implied (or secondary) assumption of risk with contributory negligence in light of the comparative negligence statute. R.C. 2315.19. Id. at 112. However, the Court made it clear that it did not intend to merge "express" (or contractual) assumption of risk or "primary" assumption of risk with contributory or comparative negligence. Accordingly, it stated with respect to primary assumption of risk: - 10 - *** [O]ur merger of the two doctrines is not intended to merge that type of assumption of risk defined as "primary assumption of risk," [footnote omitted] which concerns cases where there is a lack of duty owed by the defendant to the plaintiff. This type of assumption of risk is typified by the baseball cases where a plaintiff is injured when a baseball is hit into the stands. Anderson, supra at 114. The Supreme Court recently observed this distinction and described the results that flow from it in Gallagher v. Cleveland Browns (1996), 74 Ohio St.3d 427, 431-32: 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. Anderson's statement that primary assumption of risk does not merge with contributory negligence is of critical importance to our discussion here because when a plaintiff is found to have made a primary assumption of risk in a particular situation, that plaintiff is totally barred from recovery, as a matter of law, just as he or she would have been before Anderson. The net result of Anderson's differentiation between primary and implied assumption of risk is that now it is of utmost importance which type of assumption of the risk is put forth as a defense. *** The Court went on to note that because primary assumption of risk "prevents a plaintiff from establishing the duty element of a negligence case and so entitles a defendant to judgment as a matter of law, it is an issue especially amenable to resolution pursuant to a motion for summary judgment." Gallagher, supra at 433. - 11 - This Court most recently applied the primary assumption of risk doctrine in Fulton v. McCarthy Brothers Co., et al (July 25, 1996), Cuyahoga App. No. 69900, unreported. There, this Court upheld summary judgment for the defendants when plaintiff was injured when he slipped while trying to remove a manhole cover with a pick from an elevated area. In applying Gallagher and Anderson, supra, we stated: 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 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. * * * 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 - 12 - relieved the defendant of any duty to protect him/her. See Siglow v. Smart (1987), 43 Ohio App.3d 55, 539 N.E.2d 636. 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 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. Id. at 8-9. In the instant case, plaintiff's own testimony established that he worked on the construction of the addition to the garage about two or three weeks before the accident; he first became aware of the wires when he bumped into them; he discussed with the foreman that the wires were in a bad spot; he bumped into the wire at about waist height while he was moving bundles of shingles around; he worked around the wire to do his work; he did not know if it was insulated, but he considered it to be dangerous; he could get shocked or knocked off by them; he told his employer he did not like working around wires, but took no specific precautions and continued to work around them as needed. (Pltf. Depo. at 28-29, 40, 47-54, 113-17, 123-24, 139, 146-47). Despite this testimony, plaintiff argues that "he did not know the wires carried electric current, did not voluntarily expose - 13 - himself to the wires and did not voluntarily and unreasonably make contact with the wires." Plaintiff's expert opined that "Gum's act of reaching out to grab the wires was not the product of 'purposeful cognitive behavior' but rather a 'conditioned response' to prevent his fall." (Aplt's Brf. at 11). Plaintiff's argument is not persuasive. To impose primary assumption of risk, the plaintiff need only consciously expose himself to the known risk, not directly to the exact episode which causes the injury. By analogy to the baseball cases, to which the Supreme Court finds the principle applies, the baseball fan assumes the risk of being hit by a foul ball when he takes his place in the stands, not at the moment the foul ball comes flying his way. In other words, he does not have to envision the exact circumstances under which the injury is incurred. That plaintiff consciously exposed himself to the hazard was illustrated by his own testimony that he knew the wire was a problem, a potential hazard for a fall or shock; that he complained to his foreman and employer about the risk; and that he did not like working around these wires, but continued to do so without taking any precautions. Plaintiff also argues that "the defense of assumption of the risk is not available to CEI in this action as Max Gum's injuries were occasioned in the normal performance of his job duties," citing Cremeans v. William Henderson Mfg. Co. (1991), 57 Ohio St.3d 145. (Aplt's Brf. at 11). - 14 - In Cremeans, a product liability and intentional tort case, an employee was injured while operating a loader without a protective cage, the presence of which cage would have protected him from injury. Although the deleted protective equipment was "standard" for such loaders, the loader was not equipped with any type of protective cage or structures because such equipment would have prevented passage of the loader through the entrance to the bin in which it was to be used. Under those circumstances, the risk had to be encountered by the employee in the normal performance of his duties, and was an inherent part of the job. The present case is not a products liability nor an employment case. Plaintiff's claims against C.E.I. are based on negligence. This case does not involve an employee's use of a defective product as in Cremeans. This Court has previously held that in the absence of a master-servant relationship, "the Cremeans analysis does not apply." Gallagher v. Cleveland Browns Football Co., Inc. (1994), 93 Ohio App.3d 449, 462, rev'd on other grounds, 74 Ohio St.3d (1996), 427; Clark v. The Albert Higley Co. (Nov. 2, 1996), Cuyahoga App. No. 70304, unreported; Corso v. Regan (June 2, 1994), Cuyahoga App. No. 65077, unreported; see, also, Davenport v. M/I Schottenstein Homes, Inc. (1993), 96 Ohio App.3d 237, 241-42. We find that reasonable minds could only come to one conclusion: that plaintiff's admitted perception and knowledge of the risk of injury and his continuation of work in proximity to the - 15 - power lines constituted, as a matter of law, primary assumption of the risk. 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 cover. Fulton, supra at 10. Plaintiff's sole assignment of error is overruled. Since primary assumption of risk bars the plaintiff's claims, it is not necessary to address the duty or intervening cause arguments which are moot. App.R. 12(A)(1)(c). Judgment affirmed. - 16 - It is ordered that appellee recover of appellant 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. NAHRA, J., and LEO M. SPELLACY, J., CONCUR. JAMES M. PORTER PRESIDING 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 .