COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71795, 71796, 71802 HOBERT HAMILTON : Plaintiff : vs. : RB&W CORPORATION, et al. : Defendants : JOURNAL ENTRY : *** : AND : RB&W CORPORATION, et al. : OPINION Plaintiffs-Appellees : vs. : : R.J. MARTIN ELECTRICAL CONTRACTING, INC.: Defendant-Appellant : : *** : : GREGORY SHANTERY, ET AL. : Plaintiffs : vs. : : R.J. MARTIN ELECTRICAL CONTRACTING, : INC., et al. : Third-Party Plaintiffs/Appellants : : vs. : : GENERAL ELECTRIC COMPANY : Third-Party Defendant/Appellee : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 29, 1998 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court Case Nos. CV- 296717, 285881, 284422 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For appellants R.J. Martin IRENE C. KEYSE-WALKER Electrical Contracting, Inc., MARK F. McCARTHY Aetna Casualty & Surety Co. CARTER E. STRANG Of Illinois, and Aetna Casualty Arter & Hadden & Surety Co: 1100 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1475 MICHAEL L. FORTNEY Fortney & Klingshirn 300 N. Cleveland-Massillon Rd. Akron, Ohio 44333 For appellee RB&W Corporation: JOSEPH PAPPALARDO SHEILA McKEON TIMOTHY P. WHITFORD Gallagher, Sharp, Fulton & Norman Bulkley Building - 7th Floor 1501 Euclid Avenue Cleveland, Ohio 44115 For appellee General Electric RONALD B. LEE Company: LAURA M. FAUST Roetzel & Andress 220 Market Avenue, South Suite 520 Canton, Ohio 44702 JOHN SAVOCA Smith, Duggan & Johnson Two Center Plaza Boston, MA 02108-1801 For Gregory Shantery: CHARLES V. LONGO 1995 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1407 For Hobart Hamilton: MICHAEL R. KUBE Jeffries, Kube, Forrest & Monteleone 1650 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 -2- O'DONNELL, J.: R.J. Martin Electrical Contracting, Inc., Aetna Casualty & Surety Company of Illinois, and Aetna Casualty & Surety Company appeal from two orders of the common pleas court: one granting summary judgment in favor of RB&W Corporation in Case No. 285881, which resulted in a judgment for $899,524.56; and the other granting summary judgment in favor of General Electric Company in Case Nos. 284422 and 285881, which precluded R.J. Martin's opportunity to seek contribution from General Electric on that judgment, which arose from an electrical explosion and fire that occurred at RB&W Corporation's facility. For the reasons that follow, the judgment of the trial court is affirmed. The record before us reflects that the RB&W Corporation owned a manufacturing facility located on Tyler Boulevard in Mentor, Ohio, which it had previously sold to the George Worthington Company, but because of Worthington's bankruptcy, the property had reverted back to RB&W. After conducting an inspection of its building, RB&W chose to market the property through the Ostendorf- Morris agency and the services of its agent, Mr. J. Christopher Clayton. -3- On several occasions prior to October 13, 1994, Clayton advised RB&W officials of his inability to illuminate the west-end office area of the building by activating the circuit breakers to that area. As a result, Mr. Brian Murkey, an RB&W engineer, contracted R.J. Martin Electrical Contracting, Inc. to repair the problem and arranged for Mr. Greg Shantery, an RB&W employee, to meet the R.J. Martin repairman at the Tyler Boulevard facility. At the plant, Shantery met Hobart Hamilton, a journeyman electrician, and escorted him to the southeast corner of the building, where they located the General Electric switchgear equipment involved in the explosion, which was marked DANGER: HIGH VOLTAGE KEEP AWAY, with an attached skull-and-crossbones label. While Shantery stood nearby, Hamilton opened the electrical switchgear box containing 4160 volts of electricity, overrode the interlock safety measure that prevented the fuses from becoming energized while the door to the switchgear was open, and applied a digital multimeter capable of measuring voltages of 750 or less. When Hamilton touched the probes between the top of one fuse and the grounded metal frame of the switchgear, an explosion and fire resulted, causing extremely serious burns and injuries to both Shantery and Hamilton and property damage to the facility. Three separate lawsuits have been filed which directly affect this appeal. In Case No. 284422, Shantery sued both Hamilton and his employer, R.J. Martin Electrical Contracting, Inc., which filed a third-party product liability complaint against General Electric for contribution. The underlying claims in that case have not been -4- resolved, and the only issues arising out of that case in this appeal concern whether the trial court correctly granted summary judgment to General Electric on R.J. Martin's third-party complaint. Next, in Case No. 285881, the RB&W Corporation sued both Hamilton and his employer, R.J. Martin Electrical, for breach of contract, for its increased Workers Compensation premium, wage and medical expense reimbursement for Shantery, and for property damage to its facility. In that case also, R.J. Martin filed a third- party product liability complaint seeking contribution from General Electric, but the trial court granted summary judgment to General Electric on that claim. In this appeal, R.J. Martin challenges the court's separate rulings that granted summary judgment to General Electric and thereby precluded its opportunity to present evidence to support its claim for contribution arising out of its product liability claim against General Electric for design defects and for failure to warn of the danger of the voltage in the switchgear. Finally, in the same case, No. 285881, the court entered summary judgment in favor of RB&W Corporation against R.J. Martin, which resulted in a judgment for $899,542.56 against R.J. Martin based upon a stipulation of damages. Having timely appealed, R.J. Martin Electrical Contracting, Inc. asserts two assignments of error for our review. I. The first assignment of error states: -5- THE TRIAL COURT ERRED IN GRANTING GE'S MOTION FOR SUMMARY JUDGMENT ON R.J. MARTIN'S THIRD- PARTY COMPLAINT IN SHANTERY AND RB&W. R.J. Martin contends the trial court erred in granting summary judgment to General Electric on its third-party product liability complaint for contribution alleging that General Electric's design defects and its failure to warn of the 4160 volts of electric current contained in the Breakmaster switchgear caused the fire. General Electric maintains that the trial court properly granted summary judgment on R.J. Martin's claims asserting that it met its burden under Civ.R. 56 and contending that claims for contribution in Ohio only exist in negligence actions, not in product liability actions. It further urges that the evidence and the trial court both established Hamilton's negligence and argues that Hamilton's conduct must be imputed to R.J. Martin. The issue then presented for our consideration concerns whether the trial court correctly granted summary judgment to General Electric on R.J. Martin's claim for contribution arising out of its product liability claim against General Electric. Recognizing that R.J. Martin seeks contribution from General Electric on its claim for the allegedly defective switchgear, we first address the issue raised by General Electric regarding the viability of this claim. In Bowling v. Heil Co. (1987), 31 Ohio St.3d 277, the court considered this question at p. 286, where it stated, albeit in the double negative: The court of appeals also held that under Ohio's Contribution Among Joint Tortfeasors -6- Act, R.C. 2307.31 and 2307.32, a strictly liable defendant is not jointly and severally liable for that portion of the plaintiff's damages attributable to the negligence of another defendant. We disagree. Stated affirmatively, the court there held that a strictly liable defendant is jointly and severally liable for the portion of damages attributable to the negligence of another defendant here, ostensibly, Hamilton, Martin's employee. The court stated its holding in its syllabus: 2. Ohio's Contribution Among Joint Tortfeasors Act, R.C. 2307.31 and 2307.32, does not abolish the doctrine of joint and several liability. In accordance with that law, we reject the argument advanced by General Electric that contribution in Ohio only exists in negligence cases and determine that R.J. Martin may litigate its case against General Electric. We further consider, however, the remaining issue of assumption of risk as it relates to this assignment of error. Since R.J. Martin employed Hamilton, the defenses available to General Electric as against Hamilton may be asserted against the R.J. Martin Company. In that regard, we are aware that in Onderko v. Richmond Mfg. Co. (1987), 31 Ohio St.3d 296, the court stated in its syllabus: Voluntary and unreasonable assumption of a known risk posed by a product constitutes an absolute bar to recovery in a products liability action based upon strict liability in tort. The record in the case before us reflects that Hamilton voluntarily exposed himself to a known high voltage risk when he -7- ignored warnings and by-passed at least two safety measures to get into the locked switchgear cabinet. Nothing contained in the record before us suggests or establishes Hamilton's normal job duties required him to by-pass safety measures or demonstrates employer compulsion forcing him to take such a risk. The trial court, in its April 9, 1996 summary judgment entry, determined that Hamilton should have known to stay away from an obviously dangerous situation and stated in its August 23, 1996 entry, *** There are no material issues of fact to be tried as to whether defendant Hamilton assumed the risk when he bypassed at least two safety measures to get into the locked substation cabinet. *** Based upon our review we have concluded the trial court correctly determined the issue and we affirm that judgment. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO PLAINTIFF RB&W IN RB&W. In its second assignment of error, R.J. Martin alleges the trial court erred in granting summary judgment to RB&W Corporation on its damage claims arising out of the explosion because it failed to enclose or label the switchgear or provide its employee with knowledge of the premises. R.J. Martin further asserts that because the summary judgment includes RB&W's subrogated claim for compensation paid to Shantery, it must prove Shantery's case against R.J. Martin. -8- RB&W Corporation, however, urges that the court correctly granted summary judgment in Case No. 285881 because no genuine issues of material fact exist regarding the duty of care it owed to Hamilton and because Hamilton failed to perform the electrical repair in a workmanlike manner. Thus, the issue presented here concerns the propriety of the trial court's November 25, 1996 ruling entered in Case No. 285881, which granted summary judgment to RB&W Corporation and, pursuant to the stipulation entered on December 20, 1996, resulted in a nunc pro tunc judgment against R.J. Martin Electrical Contracting Company in the amount of $899,524.56. In examining the record in this case, we recognize that the trial court based its summary judgment in favor of RB&W on the same facts and conclusions reached in its April 9 and August 23 entries, including the court's decision regarding Hamilton's assumption of risk that we have addressed in the first assignment of error. Here, however, no genuine issues of material fact exist regarding the circumstances surrounding Hamilton's presence on RB&W's premises on the day of the explosion nor the duty owed him by RB&W. R.C. 4101.11, known as the frequenter statute, states in part that every employer *** shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof. In Eicher v. U. S. Steel Corp. (1987), 32 Ohio St.3d 248, the court defined frequenters to include employees of an independent contractor but stated that the statute does not extend to hazards -9- which are inherently present due to the nature of the work performed in the case of an employee of an independent contractor. Here, then, Hamilton included a check of the switchgear either voluntarily or as necessitated while performing his normal job duties, and the duty to furnish a safe place of employment could not have been violated because RB&W called R.J. Martin to repair the unsafe electrical problem. Also, RB&W could owe a duty to Hamilton if the evidence demonstrated it actively participated in the job operations. See Herschback v. Cincinnati Gas & Electric Co. (1983), 6 Ohio St.3d 206, where the court stated at 208: 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 liable for resultant injuries. Here, however, the evidence does not demonstrate that RB&W Corp. interfered with, or dictated, the mode of Hamilton's repair work, and, thus, it never actively participated in the job; it only admitted Hamilton to the building and demonstrated the problem to him. The work Hamilton undertook did not involve active participation by RB&W. Accordingly, because RB&W Corporation did not actively participate in Hamilton's repair efforts, it owed no duty of care to him. Accordingly, the trial court did not err in entering summary judgment in this instance. Therefore, the judgment of the trial court is affirmed. -10- It is ordered that appellee(s) recover of appellant(s) 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. SWEENEY, A.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .