COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71878 WILLIAM TINSLEY : : JOURNAL ENTRY PLAINTIFF-APPELLANTS : : AND v. : : OPINION LEPI ENTERPRISES, INC., et al : : DEFENDANT-APPELLEES : : DATE OF ANNOUNCEMENT OCTOBER 16, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil proceeding from Court of Common Pleas Case No. 286276 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: BRIAN M. BARTKO, ESQ. White and Bartko 1382 West 9th Street 410-S The Crittenden Bldg. Cleveland, Ohio 44113 For Defendant-appellee DEBORAH B. CAPPS-DUVIN, ESQ. Lepi Enterprises : JOSEPH E. RUTIGLIANO, ESQ. Kohrman, Jackson & Krantz One Cleveland Center 1375 East 9th Street, 20th Fl. Cleveland, Ohio 44114 For defendant-appellee EUGENE B. MEADOR, ESQ. City of Cleveland : Kitchen, Deery & Barnhouse 1100 Illuminating Building 55 Public Square Cleveland, Ohio 44113 SWEENEY, JAMES D., C.J.: Plaintiffs-appellants William Tinsley and Paula Tinsley appeal 2 the decision of the Cuyahoga County Common Pleas Court granting summary judgment for defendant-appellee City of Cleveland and for defendant-appellee Lepi Enterprises, Inc. (hereafter "Lepi"). William Tinsley seeks damages for personal injuries, and Paula Tinsley seeks damages for loss of consortium. In Tinsley v. Lepi Enterprises (Nov. 21, 1996), Cuyahoga App. No. 70571, unreported, this court found that jurisdiction was lacking because the trial court had not entered a final appealable order. Upon remand, appellee City of Cleveland dismissed its cross-claim against appellee Lepi. Since there are now no further claims or actions pending between or among some or all of the parties, a final order has been rendered and this court has jurisdiction to hear this appeal. William Tinsley, certified as a minority contractor by the City of Cleveland, was severely injured on March 18, 1993, when he fell from a ladder perched on scaffolding at Burke Lakefront Airport. Tinsley was in the process of completing a drywall assignment as a subcontractor for appellee Lepi. When Tinsley and his employee arrived at the job site, the Lepi personnel were leaving for the day. The Lepi employees noticed that Tinsley's ladder was too long and indicated that he could use their scaffolding (Tinsley depo T. 17, 44). Tinsley and his employee moved the scaffolding into position and then locked the wheels. Tinsley placed his ladder on top of the scaffolding and then ascended the ladder a few steps to ensure its stability. Tinsley felt the scaffolding move, and the next he remembers is the 3 hospital. In his deposition, Tinsley testified that he was not told that he was required to use the scaffolding (Tinsley depo T. 44, 46). He also stated that he was not instructed to place an extension ladder on top of the scaffolding (Tinsley depo T. 31). The appellants set forth one assignment of error: THE TRIAL COURT DEVIATED FROM THE LAW AND COMMITTED REVERSIBLE ERROR WHEN IT DENIED PLAINTIFFS-APPELLANTS' BASIC RIGHT TO TRIAL BY GRANTING SUMMARY JUDGMENT. The appellants divide their argument into two parts, first arguing that the motion for summary judgment of appellee Lepi should not have been granted, and then asserting that the motion for summary judgment filed by the City of Cleveland should not have been granted. These arguments will be considered together as the applicable law is the same. 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. 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. A court is permitted to grant a motion for summary judgment where all of the tests provided in Civ.R. 56 are met. See Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323. The court found where the non-moving party bears the burden of proof at 4 trial on dispositive issues, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file. The non-moving party is required to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Id. at 324. Finally, an appellate court reviews the lower court's determination on a motion for summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579. A construction cite is an inherently dangerous place. Bond v. Howard Corp. (1995), 72 Ohio St.3d 332, 336, citing to Whitelock v. Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594. In Bond, supra, the court cited to Hirschback v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, for the proposition 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. The Bond Court also cited to Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, where it was held 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. 5 Finally, this court must note that in Bond, supra, the syllabus states: For purposes of establishing liability to the injured employee of an 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. In the case sub judice, Tinsley testified quite clearly that his actions were directed neither by Lepi nor by the City of Cleveland. While each of the appellees arguably retained some general supervisory responsibility for the safety at the work site, the Ohio Supreme Court has unequivocally held that without some indication that the appellees directed the activity which resulted in the appellant's injury, the appellees bear no liability for the appellant's injuries. Since neither the City nor Lepi directed Tinsley to use the scaffolding, much less directed him to place a ladder on the scaffolding, the trial court properly granted the appellees' motions for summary judgment. The appellant's assignment of error is overruled. Judgment affirmed. 6 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 Cuyahoga County 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. JOSEPH J. NAHRA, J. CONCURS TERRENCE O'DONNELL, J. CONCURS _____________________________ JAMES D. SWEENEY CHIEF JUSTICE 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 .