COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73465 RONALD CONNORS, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION RONALD BROWNRIGG, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 1, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-300496 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: JACK N. GROSSMAN (#0024439) 6240 Mayfield Road, Suite 210 Mayfield Heights, Ohio 44124 For Defendant-Appellee: THOMAS J. CABRAL (#0033041) Gallagher, Sharp, Fulton & Norman 7th Floor, Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 SPELLACY, J.: Plaintiffs-appellants Ronald Connors and Mary Jo Connors (collectively appellants ) appeal from the trial court's order -2- granting defendant-appellee Source One Mortgage's motion for summary judgment. Appellants assign the following error for our review: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS BY GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Finding appellants' assignment of error to lack merit, the judgment of the trial court is affirmed. I. On May 15, 1995, Ronald Connors, in his capacity as an employee of Gay & Taylor, went to an unoccupied house located at 11417 Parkwood Avenue, in Cleveland, Ohio ( the House ) to conduct an investigation and independent inspection of the premises. Gay & Taylor, an independent claims adjusting company, was retained by American Bankers Insurance Company ( American Bankers ) to perform adjusting services in northeast Ohio. American Bankers provides property damage insurance coverage to mortgage companies, including defendant-appellee SourceOne Mortgage ( Source One ), the owner of the House. When he arrived at the House, Mr. Connors noted that electric services to the abandoned property had been terminated. Mr. Connors proceeded with his inspection, entering the House, and eventually descending the basement stairs. When he reached the bottom of the basement stairs, Mr. Connors observed that the basement floor was covered with debris. Notwithstanding, Mr. Connors entered the basement, tripped on debris on the floor, fell and was allegedly injured. -3- On December 21, 1995, appellants filed a complaint in Common Pleas Court against Ronald Brownrigg and Jacqueline Brownrigg for injuries allegedly sustained by Mr. Connors at the House on May 15, 1995. In their complaint, appellants asserted that the Brownriggs owned the House. Thereafter, appellants discovered that the House was owned by Source One. On May 15, 1996, appellants filed a motion to amend their complaint to add Source One Mortgage as a defendant. On the same date, the trial court granted appellants' motion and their amended complaint was filed. On May 8, 1997, appellants voluntarily dismissed the Brownriggs without prejudice. On July 18, 1997, Source One filed a motion for summary judgment. In its motion for summary judgment, Source One asserted that it was entitled to summary judgment, in part, because: (1) Mr. Connors was an employee of an independent contractor; (2) Mr. Connors had knowledge of the allegedly dangerous condition of the basement prior to his fall; (3) the condition that caused Mr. Connors' alleged injuries was open and obvious; and (4) Mr. Connors assumed the risk of his injuries when he entered the House's basement. On October 8, 1997, the trial court granted Source One's motion for summary judgment. On November 6, 1997, appellants timely filed the instant appeal. II. In their sole assignment of error, appellants argue that the trial court erred in granting Source One's motion for summary judgment. Specifically, appellants claim that: (1) Mr. Connors was not an employee of an independent contractor; and (2) that Mr. -4- Connors did not have prior knowledge of the condition that caused him to fall. Civ.R. 56(C) sets forth the standard of review for cases involving summary judgment: * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * Contrary to appellants' contentions, there was no genuine issue of material fact in the instant case and, as set forth below, Source One was entitled to judgment as a matter of law. The duty, if any, that an owner of premises owes to the employee of an independent contractor engaged by the owner arises in two ways: (1) under Ohio common law; and (2) under R.C. 4101.11. Eicher v. United States Steel Corp. (1987), 32 Ohio St.3d 248, 249. R.C. 4101.11, the "frequenter statute," provides: Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. The duty owed to frequenters under R.C. 4101.11 is a codification of the common-law duty owed by an owner or occupier of -5- premises to invitees, requiring that the premises be kept in a reasonably safe condition, and that a warning be given of dangers of which the owner or occupier has knowledge. Eicher, 32 Ohio St.3d at 249. Notwithstanding this rule, the primary responsibility for protecting the employees of an independent contractor lies with the independent contractor, not with the premises' owner.1 Id. at 250. Therefore, one who engages the services of an independent contractor ordinarily owes no duty of protection to the employees of the independent contractor when the independent contractor or his employee proceeds with knowledge and an appreciation of the danger the work entails. Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, paragraph two of the syllabus. Contrary to appellants' contention, the record clearly established that Mr. Connors was an employee of an independent contractor, acting in that capacity, when he went to the House to perform an investigation and independent inspection. Appellants argue, in effect, that the legal designation of independent contractor should only be applied to entities that provide manual labor; we find this argument to be specious. 1 In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, the Supreme Court of Ohio created an exception to this rule. In Hirschbach, the court held that one who engages the services of an independent contractor, and who actually participates in the job operation performed by such contractor, can be held responsible for the injury or death of an employee of the independent contractor. Id. at the syllabus. In the instant case, appellants failed to present any evidence, or even allege, that Source One actively participated in Mr. Connors' job performance; therefore, the Hirschbach exception is not applicable to this case. -6- In his deposition, Mr. Connors acknowledged that inspecting abandoned houses was an inherently dangerous job which required extreme care and observation. Mr. Connors also testified that he was fully aware of the fact that there was no electricity in the House when he entered it; Mr. Connors admitted that the lack of electric services is a typical hazard encountered when inspecting abandoned houses. Most importantly, Mr. Connors unequivocally admitted he entered the basement of the House with the knowledge that the floor was covered with debris. Under these circumstances, Source One may not be held responsible for the injuries allegedly sustained by Mr. Connors. Accordingly, appellants' assignment of error is without merit and their appeal is overruled. Judgment affirmed. -7- It is ordered that appellee recover of appellants 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 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. TERRENCE O'DONNELL, P.J. and JAMES D. SWEENEY, J. CONCUR. LEO M. SPELLACY JUDGE 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 .