COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70971 ELISEO CEFARATTI, ET AL. : ACCELERATED CASE : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION MASON STRUCTURAL STEEL CO., : INC., ET AL. : PER CURIAM : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: MAY 22, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-256886 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: DAVID A. KULWICKI (#0041106) 76 SOUTH MAIN STREET - SUITE 1612 AKRON, OHIO 44308 For Defendants-Appellees: HENRY A. HENTEMANN (#0023401) J. MICHAEL CREAGAN (#0030259) 2121 THE SUPERIOR BUILDING CLEVELAND, OHIO 44114 - 2 - PER CURIAM: Plaintiffs-appellants Eliseo Cefaratti and Jerry Cefaratti ("appellants") appeal from the judgment of the trial court granting defendant-appellee Panzica Construction Co.'s ("appellee") motion for summary judgment. Appellants raise the following error for our review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHEN GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER DEFENDANT-APPELLEE, A GENERAL CONTRACTOR, "ACTUALLY PARTICIPATED" IN PLAINTIFF-APPELLANT'S WORK. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. A complete review of the record reveals the following. On August 18, 1993, appellants filed a complaint against Mason Structural Steel Company, Inc. alleging negligence and loss of consortium. On March 30, 1994, appellants amended their complaint to include James McDonald and Tom McDonald as party defendants. On January 30, 1995, appellants amended their complaint a second time to include Panzica Construction Company as a party defendant. Subsequently, on July 20, 1995, appellants filed a notice of voluntary dismissal as to defendants Mason Structural Steel Co., Inc., James McDonald and Tom McDonald. The trial court dismissed the parties on August 2, 1995. On September 15, 1995, appellee Panzica Construction Company filed its motion for summary judgment. Appellants, after obtaining leave of court, filed their opposition in response to the - 3 - appellee's motion for summary judgment on December 8, 1995. On July 2, 1996, the trial court granted appellee's motion for summary judgment. I. The facts giving rise to this appeal are as follows: In 1993, appellee entered into a contract with American Piping Company which agreed to install an automatic sprinkling system in the remodeled offices at the Beachwood Municipal Building. On June 14, 1993, appellant Eliseo Cefaratti, a pipe fitter employed by American Piping Company, was injured on the project when he fell off a second floor stairwell. The stairwell from which appellant fell was incomplete in that the cement had not been poured and there were no railings on the second floor steps. Appellant, who was the foreman on the job, had been to the site occasionally in the six months prior to the accident and knew that there was no guardrail on the staircase. Appellant, however, never complained to appellee of the dangerous condition. (Cefaratti, Depo., p. 71). On the day of the accident, appellant's employer, American Piping Company, instructed appellant and his co-worker to work at the Beachwood Municipal Building. (Cefaratti, Depo., p. 89). American Piping Company would then bring the necessary materials to the job site, and based upon the materials left by American Piping Company, appellant would decide the work to be performed that day. - 4 - Appellant was also responsible for putting the materials in the area where he would be working. (Cefaratti, Depo., pp. 89-92). On the day of the accident, appellant had placed the necessary materials on the second floor stairwell landing. As appellant reached down to grab something, he stumbled and fell to the first floor. (Cefaratti, Depo., p. 18). As a result of his fall, appellant suffered serious injuries. II. In their sole assignment of error, appellants contend that the trial court erred in granting appellee's motion for summary judgment. Appellants assert that ample evidence exists to find that appellee retained sufficient control over the construction site and that the general contractor "actually participated" in the subcontractor's work. The test for granting a motion for summary judgment is set forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to 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. Lovsin, et al. v. J.C. Penney Company, Inc., et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported. Turner v. Turner (1993), 67 Ohio St.3d 337, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317 and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. - 5 - The issue presented is whether a general contractor merely by virtue of its supervisory capacity over the work site owes a duty of care to the employees of a subcontractor engaged in the inherently dangerous activity of installing a sprinkler system from an incompleted and unguarded second floor landing. Generally, a party who engages the services of an independent contractor to perform an inherently dangerous task is not liable for injuries sustained by the independent contractor's employees. Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103. In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, syllabus, the court created an exception to this general rule, holding that: 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. In Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, syllabus, the court refined Hirschbach by holding that: A general contractor who has not actively participated in the subcontractor's work, does not, merely by virtue of its supervisory capacity, owe a duty of care to employees of the subcontractor who are injured while engaged in inherently dangerous work. In Bond v. Howard (1995), 72 Ohio St.3d 332, the court set forth a definition of "actively participated" and stated that "for purposes of establishing liability to the injured employee of an - 6 - 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." Id. at 337. In the case sub judice, the undisputed facts establish that appellee did not actively participate in any action or decision that led to appellant's injuries. Appellant stated during his depositional testimony that American Piping Company would instruct its employees where to work. Furthermore, American Piping Company would bring the materials to be used at a particular site, and based on the materials left at the site, appellant would decide the work which needed to be performed. Appellant further stated that, based on the materials left by American Piping Company at the Beachwood Municipal Building on the day of his accident, he made the decision to work on a pipe located near the second floor landing. Though appellee may have known about some of appellant's activities, that knowledge does not constitute "actual participa- tion" in those activities within the Hirschbach rule. Cafferkey, supra at 112. It is clear from appellant's depositional testimony that appellee neither gave nor denied appellant permission for the critical acts that led to the appellant's injuries. Furthermore, there is nothing in the record that indicates appellee exercised - 7 - control over the means and manner of appellant's installation of the sprinkler system. The details of appellant's performance were directed and carried out solely by American Piping Company and appellant. Appellee did not direct or interfere with appellant's work. Thus, the trial court correctly granted summary judgment in favor of appellee. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. - 8 - 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. JOSEPH J. NAHRA, PRESIDING JUDGE LEO M. SPELLACY, JUDGE DIANE KARPINSKI, JUDGE, DISSENTS (See Dissenting Opinion Attached) (Two Judges Concur; One Judge Dissents) N.B. This 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(B) 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 clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70971 : ELISEO CEFARATTI, ET AL. : : : Plaintiffs-Appellants : : DISSENTING v. : : OPINION MASON STRUCTURAL STEEL CO., : INC., ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 22, 1997 KARPINSKI, J., DISSENTING: I respectfully dissent. The issue in this case is whether the general contractor violated a duty of reasonable care to a frequenter of a construction site when the general contractor removed wooden handrails that were a standard safety protection, required by industry standards on all open staircases. This duty arises only under certain conditions. In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, the Ohio Supreme Court carved out an exception to the general rule set forth in Wellman and held that "[o]ne who engages the services of - 2 - 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." (Emphasis added.) Bond v. Howard Corp. (1995), 72 Ohio St.3d 332, 334-5 (underlining added), quoting Hirschbach. Subsequent to Hirschbach, in the case of Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, the court clarified that this standard is not met in regard to a subcontractor's work "merely by virtue of its [the general contractor's] supervisory capacity." In the case at bar, the majority opinion views the participation of the general contractor as merely supervisory and therefore insufficient to create a duty. I disagree. The act which led to the employee's injury was the removal of a railing. The act of removing the guard rail was more than a general supervisory role over the project. In effect, appellee interfered with appellant's work by creating a condition that required him either to cease work altogether or to work in an unsafe area. In Bond the Ohio Supreme Court explained how it interpreted the facts of Hirschbach, which the majority in the case at bar properly relies upon. The critical facts were that an employee died when a tower arm collapsed because a tractor winch was positioned too close to the tower. Prior to the fall an inspector of the general contractor denied the request of the employee and other fellow employees "to position the winch tractor at a safe - 3 - distance from the base of the tower." The Bond court quoted with approval the conclusion reached in Hirschbach: "***[A] jury could reasonably conclude that CG & E had sole control over the safety features necessary to eliminate the hazard. By denying the [independent contractor's] crew its request to reposition the winch tractor: (1) CG & E refused to eliminate the hazard, (2) CG & E interfered with the mode of the job operation, and (3) CG & E actually participated in the job operation by dictating the manner and mode in which the winching phase of the job was to be performed." (Emphasis added and footnote omitted.) Id. at 208 ***. Bond, supra, at 335 (underlining added). The general contractor in Hirschbach caused a safety hazard to the work environment of the subcontractor's crew. Similarly, in the case at bar, the general contractor "had sole control over the safety features" of the immediate work environment in which plaintiff was installing a sprinkler system. The contractor actively participated in the manner in which the job had to be performed to the extent the general contractor removed the safety rail and created a temporary safety hazard. The record is not clear, however, whether the job had to be performed that day. While the general contractor argues there was no evidence that the worker had to perform his work at that particular place and time the day he fell, so too was there no evidence that the worker had work to perform at another site. If one views the evidence from the non-movant's perspective, it is reasonable to conclude, therefore, that the worker had good reason to be working on that site, since he was not prohibited from working there and not directed to work elsewhere. - 4 - In support of its position, the majority cites Cafferkey, supra. In this case, two men died when one, using a flint to ignite a torch, exploded methane gas in a hole being drilled by a subcontractor. The general contractor did not specify what technique the subcontractor was to use in order to drill the hole further. Nor was it the general contractor who made the decision to use a torch to remove a twisted pipe in a hole containing methane gas. The subcontractor explicitly made these decisions. In the case at bar, however, the general contractor alone decided to remove the safety rail that OSHA required. The general contractor abdicated his statutory duty to provide safe working conditions. Having removed a railing required by OSHA, it behooved the general contractor to provide, at the least, warnings not to work in that area until the railing was returned. Thus it is a question of fact for the jury to decide whether the general contractor did all it could have reasonably done to ensure the safety of the worker on the date of the accident. Analyzing this case as if the worker exercised a waiver in choosing to continue his work that day, the majority focusses on appellant being able to decide what work needed to be performed based on the materials the subcontractor provided. While that was a general decision appellant made, it becomes an illusory choice if there were no other work to be performed that day and he were expected to proceed with his work. The record does not resolve this point. Accordingly, I would have allowed the case to develop .