I must respectfully dissent from the majority opinion of my colleagues.
Dayton Power and Light Company [hereinafter DPL] employed Enerfab, Inc. [hereinafter Enerfab] to update an igniter system on a boiler at one of its power plants. In order to update this system, Enerfab had to remove piping and conduit used with the old system, then install replacement piping and conduit for the new system. Enerfab had completed this project and vacated the premises at the time DPL employed Kessinger Services Industries [hereinafter KSI] to paint this new piping, in an effort to color-code the new pipes according to function. *Page 203 Appellant, a professional painter, was an employee of KSI. KSI directed appellant to paint these pipes in the DPL boiler room in accordance with instructions provided by DPL. While painting a pipe only a few inches above the floor of the boiler room, appellant was struck on the head and neck by a falling iron pipe. This pipe was about two feet in length and perhaps an inch in diameter.
The general rule is that the owner of a building has a duty to protect visitors from hidden hazards. It is at this point in the majority analysis regarding the exceptions to this general rule that my position and opinion diverges from that of the majority. Appellant's status is clearly that of a business invitee or frequenter. The Restatement of the Law 2d, Torts (1965) 176, Section 332, defines a "business visitor" as a category of invitee, stating:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
The comment to Subsection (3) states:
Business visitors fall into two classes. The first class includes persons who are invited to come upon the land for a purpose connected with the business for which the land is held open to the public, as where a person enters a shop to make a purchase, or to look at goods on display. Where this distinction arises, a business visitor of this class is hereafter called a patron.
The second class includes those who come upon land not open to the public, for a purpose connected with business which the possessor conducts upon the land, or for a purpose connected with their own business which is connected with any purpose, business or otherwise, for which the possessor uses the land. Thus a truck driver from a provision store who enters to deliver goods to a private residence is a business visitor; and so is a workman who comes to make alterations or repairs on land used for residence purposes. Id. at 179-180.
See discussion in Newton v. Pennsylvania Iron and Coal, Inc. (1993)85 Ohio App.3d 353, 619 N.E.2d 1081; Scheibel v. Lipton (1951),156 Ohio St. 308, 102 N.E.2d 453, paragraph one of the syllabus.
Once it is established that appellant's legal status is that of a business invitee in the case sub judice, the question becomes what duty is owed appellant by appellee DPL in this matter. What duty does a business owner owe to a business invitee? Prosser Keeton, The Law of Torts (5 Ed. 1984) 419, states *Page 204
* * * as to those who enter premises upon business which concerns the occupier, and upon his invitation, express or implied, the latter is under affirmative duty to protect them, not only against dangers of which he knows, but also against those which with reasonable care he might discover.
The Supreme Court of Ohio has held that once the evidence establishes that a dangerous condition existed, and that it is a condition about which the owner should have known, evidence of actual knowledge on his part is unnecessary. See Perry v. Eastgreen Realty Co. (1978),53 Ohio St.2d 51, 52, 372 N.E.2d 335, 336, relying upon Prosser on Torts (4 Ed. 1971) 392-393. As set forth in Prosser Keeton, The Law of Torts (5 Ed. 1984) 425-426:
The occupier is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection. But the obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The occupier must not only use care not to injure the visitor by negligent activities, and warn him of hidden dangers known to the occupier, but he must also act reasonably to inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use of the property. The obligation extends to the original construction of the premises, where it results in a dangerous condition. (Emphasis added.)
"Thus, an employer may be liable to an independent contractor, as an invitee, for injuries caused by a dangerous condition but, only if he knew or reasonably should have known of the condition." Cyr v. BergstromPaper Co. (1982) 3 Ohio App.3d 299, 301, 444 N.E.2d 1349, 1352. Hence DPL owed appellant, as a business invitee, a duty "to keep [the] premises in a reasonably safe condition and to give warnings of latent or concealed perils of which [it] has, or should have, knowledge."Westwood v. Thrifty Boy Super Markets, Inc. (1972), 29 Ohio St.2d 84, 86- 87, 278 N.E.2d 673, 675. This duty owed to employees of independent contractors in their capacity as business invitees is the same whether it arises at common law or pursuant to R.C. 4101.11. See Eicher v.United States Steel Corp. (1987) 32 Ohio St.3d 248, 249, 512 N.E.2d 1165,1167; Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38. 42, 227 N.E.2d 603, 607.
Where danger to others is likely to attend the doing of certain work, unless care is observed, the person having it to do, is under a duty to see that it is done with reasonable care, and cannot, by the employment of an independent contractor, relieve himself from liability for injuries resulting to others from the negligence of the contractor or his servants.
Richman Bros. v. Miller (1936), 131 Ohio St. 424, 3 N.E.2d 360, at paragraph one of the syllabus.
See *Page 205 Bohme, Inc. v. Sprint Internatl. Communications Corp. (1996),115 Ohio App.3d 723, 733, 686 N.E.2d 300, 306; Nagorski v. Valley View (1993), 87 Ohio App.3d 605, 622 N.E.2d 1088, citing to Richman Bros.
R.C. 4101.11 requires every employer to provide a safe work place for its employees. Beyond providing a safe place of employment for employees, R.C. 4101.11 also extends its protection to "frequenters." R.C. 4101.12 further forbids an employer from failing to "* * * do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees or frequenters."
It is my belief that it is the focus by the majority on recent case law developments, which explore the exceptions to this general rule, that leads the majority to the affirmative conclusion with which I am forced to respectfully disagree. One such exception to this rule is created where the inherently dangerous condition on the property is obvious to anyone upon reasonable inspection. Wellman v. East Ohio GasCo. (1953), 160 Ohio St. 103, 113 N.E.2d 629. Another exception to this rule exists "to any inherent hazards necessarily present because of the character of the work to be done" by the contractor or subcontractor. See Schwarz v. Gen. Elec. Realty Corp. (1955), 163 Ohio St. 354,126 N.E.2d 906, paragraph one of the syllabus. The Supreme Court of Ohio has held that a construction site is inherently dangerous. Bond v.Howard Corp. (1995), 72 Ohio St.3d 332, 336, 650 N.E.2d 416, 420. At the time of appellant's alleged injury, the premises of DPL where this accident occurred was not a construction site within the meaning of Bond.
An exception to the Wellman rule is that the owner, or general contractor, may again become liable if it participates in the inherently dangerous work of that sub-contractor. Hirschbach v. Cincinnati Gas Elec. Co. (1983), 6 Ohio St.3d 206, 452 N.E.2d 326; Sopkovich v. OhioEdison Co. (1998), 81 Ohio St.3d 628, 693 N.E.2d 233.
However, it must be remembered, the Wellman rule is an exception to the general rule imposing a duty on the owner to provide a safe work place for frequenters. The Hirschbach rule is an exception to anexception. It is at this juncture that I am particularly disturbed by the analysis and opinion of the majority.
The degree of participation, or lack of participation, in appellant's work by DPL is simply not the issue in this case. The general rule is that the premises owner must provide a safe working environment. Recovery by a business invitee, or frequenter, from the premises owner may be had only if the owner has actual or constructive knowledge of the existence of the hazardous condition which caused the injury. See Davisv. Shutrump Co. (1942), 140 Ohio St. 89, 42 N.E.2d 663. However, an owner or employer also has a duty "to exercise reasonable care to protect all frequenters, including independent contractors, *Page 206 from unreasonably dangerous conditions of which the employer has, or upon reasonable inspection, should have knowledge." Cyr v. Bergstrom Paper Co.,3 Ohio App.3d 299, 444 N.E.2d 1349, at paragraph one of the syllabus. "The existence of hazards which could be eliminated by the exercise of ordinary care by those in custody and control of the premises cannot be considered as inherent hazards necessarily present because of the character of the work to be done." Parsons v. Blount Bros. Constr. Co. (C.A.6, 1960), 281 F.2d 414, 417, rejecting the conclusion reached inSchwartz, supra. See, also, Prosser Keeton, The Law of Torts (5 Ed. 1984) 510-511.
In the majority opinion it is conceded that the DPL boiler room was no longer a "construction site" when appellant began his painting tasks. In Michaels v. Ford Motor Co. (1995), 72 Ohio St.3d 475, 650 N.E.2d 1352, Ford escaped liability where an employee of an electrical subcontractor fell through a hole, because the general contractor still controlled the construction site. Here Enerfab, the contractor who installed the new pipe and conduit for the appellee, had returned control of the boiler room to DPL before the appellant began his painting of the new pipes.
I do not find the painting of the subject pipes in the case sub judice to be an inherently hazardous activity. The appellee argues that there are inherent hazards to working around an active boiler. The majority notes this boiler room was "hard hat" territory, stating that we must look to the totality of the work environment when making a determination whether the work activity was inherently hazardous, thereby relieving the premises owner of liability. However, the appellant did not burn his hand on a hot pipe, nor did he bump his head while painting in a tight spot. He did not, as happened in a number of cases, reported and unreported, fall off a scaffold,1 slip off a roof,2 step into an open hole,3 or fall off a ladder.4 Indeed, there is no identifiable negligence on the part of the appellant in this case. He was almost flat on the floor of the boiler room, wearing the required safety equipment (the hard hat) and painting a pipe, when this loose pipe fell from the ceiling onto his head.
The majority would have us believe that all work in an environment where there is an active boiler is inherently dangerous, thereby allowing DPL to avoid *Page 207 the general duty, imposed both by statute and the common law, to provide a safe workplace. I cannot agree with this interpretation of the law.
The majority cites Wheeler v. GTE North, Inc. (June 22, 1995), Jackson App. No. 94CA744, unreported, in support of their position. In Wheeler, a contractor working for a television cable company was removing coaxial cable from the GTE poles, which poles were leased from GTE by the cable company. A rotted telephone pole collapsed under the weight of the contractor's employee. When the employee sued GTE, the trial court denied his claim, granting GTE's motion for summary judgment. This court reversed. We found that the employee might expect to encounter dangers in his work from live wires, or from falling from a pole. We also found, however, that the employee should not expect a pole to collapse beneath him, for the industry did not view that hazard as an inherent risk of the job. Our rationale in Wheeler remains viable and supports the position of the appellant in the case sub judice rather than the position advanced by the appellee.
The following cases supply additional guidance in the analysis of these issues: Kline v. Ohio Univ. (1990), 62 Ohio Misc.2d 704,610 N.E.2d 1205; Stasiak v. Schindler Elevator Corp. (Sept. 1, 1994), Richland App. No. 93-CA-104, unreported; Cogar v. Scheetz Constr. Co. (Jan. 14, 1998), Summit App. No. 18501, unreported.
In Kline, Ohio University hired Kline's employer to remove asbestos from steam tunnels running beneath campus. While inspecting one of the tunnels, Kline was shocked when he encountered exposed electrical wiring. The Court of Claims concluded from the record that Ohio University employees had removed insulation from the wiring for a temporary electrical feed and had not taped, or replaced, this missing insulation. Thus, the University breached its duty to Kline as a business invitee and was liable for his injuries.
In Stasiak, the plaintiff was a state elevator inspector. Inspecting a hydraulic system on an elevator, he was injured by an unguarded cable. The Fifth Appellate District reversed a grant of summary judgment to the defendants, finding that a jury question existed as to whether the defendants were liable for removing the cable guard.
In Cogar, the plaintiff was an employee of a janitorial service. She cleaned a building leased by defendant Akron Auto from defendant Scheetz. On the day of Cogar's injury, Scheetz had begun an extensive remodeling project to this building. Normally Cogar would collect trash in bags, then step out a back maintenance door to pile the bags near a dumpster. However, a contractor for Scheetz had removed the back step to the building, causing Cogar to fall. The Ninth Appellate District, reversing summary judgment in favor of Scheetz, found a material question of fact as to whether the building owner met its duty to *Page 208 maintain a safe work environment for Cogar, a business invitee. Obviously, that court found that taking out the trash was not so inherently dangerous an activity as to preclude recovery, even while remodeling and construction occurred at this office building.
Therefore, I, too, find that there exists a material question of fact as to whether DPL met its duty to provide a safe work place for the appellant. Clearly, inspection of the boiler room would have been in order by DPL subsequent to the completion of Enerfab's work. There is a material question of fact whether DPL would have discovered the hanging pipe upon a reasonable inspection of the boiler room after Enerfab completed its work. There is even a material question of fact as to whether any inspection of the boiler room took place subsequent to Enerfab's departure from the premises.
The appellee also questions whether appellant established that his claimed injuries were the result of this accident. However, that, too, is a question of fact that is not, and should not be, before us at this stage of the proceedings, a review of the trial court's summary judgment decision. Such factual questions are best left to the jury.
Accordingly, I would reverse the decision of the trial court and remand for further proceedings.
1 E.g. Hesselbach v. Toledo Museum Of Art (1995) 72 Ohio Misc.2d 33,655 N.E.2d 831.
2 E.g. Burnep v. Labmark (June 17, 1999), Franklin App. No. 98AP-962, unreported.
3 E.g. Bond, supra.
4 "E.g. Hernandez v. Martin Chevrolet, Inc. (1995), 72 Ohio St.3d 302,649 N.E.2d 1215. *Page 209