dissenting. I must respectfully dissent from the majority’s affirmance of the judgment of the court of appeals in this case. I do so because the summary judgment as to Turner was improperly granted. Where a general contractor retains control over the premises of the job, and retains authority to participate in an independent subcontractor’s work, the general contractor owes a duty to all frequenters of the job site to exercise that retained authority when the general contractor knows, or reasonably should know, that the subcontractor is proceeding with work in a dangerous manner.
That statement of the general contractor’s duty of care flows from Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St. 3d 206, in which we held 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 general contractor’s duty of care arises from R.C. 4101.11 and 4101.12. In Walker v. Mid-States Terminal, Inc. (1984), 17 Ohio App. 3d 19, now-Justice Douglas, the author of that court of appeals’ opinion, had occasion to analyze this court’s decision in Hirschbach. He stated, at 22, that “[a] careful review of the decision reveals that, in accordance with previous case law, the determination as to the applicability of the Ohio ‘frequenter’ statutes (R.C. 4101.01 et seq.) in the Hirschbach case turns upon a finding that the defendant had retained custody and control over the premises, as established by the fact of the inspector’s direct participation in the operations of the independent contractor. * * *” In that case, one of the determinative factors was the general contractor’s retention of authority to stop its subcontractor’s work and direct changes in the face of safety-oriented emergencies. There, as here, the general contractor had failed to exercise that authority; there, as here, summary judgment was inappropriate.
In this case, Turner, the general contractor, and Millgard, the subcontractor, entered into a written contract. In that contract, Turner retained the right to “* * * stop any part of the Work which Turner deems unsafe until corrective measures satisfactory to Turner have been taken * * If Millgard neglected to take such corrective measures, Turner reserved the right to undertake them at Millgard’s cost.
Further, Turner’s own safety bulletins acknowledged .Turner’s responsibility for working conditions as follows: “We are General Contractors and usually as such are responsible for the general conditions which exist on each project we build. * * *” “Subcontractors are also required to adhere to the safety requirements. Superintendents should be sure that *116Subs are aware of and follow the sections of the regulations applicable to their work. * * *” “Constant supervision by the Superintendent and responsible staff members is required to eliminate unnecessary hazards on our work.” “* * * Our superintendents must always be alert to prevent unsafe conditions from developing, not only on our own work but on that of others engaged on the project.” The majority’s attempt to dismiss Turner’s contractual language regarding job safety as mere “boilerplate” ignores Turner’s documented acknowledgements that it intended to actually participate in Millgard’s work, at least to some degree.
Indeed, the record reveals that Turner followed through on its stated intent to closely supervise Millgard’s work. In his deposition, Turner’s assistant superintendent, Neil J. Carothers III, acknowledged that he was on the job site the day of the explosion, and was aware that methane gas had been detected in the A-3 Hole. Just before the explosion, Carothers heard the drill motor stop, and went to investigate. When Millgard’s personnel “impolitely” asked him to leave, Carothers left, choosing not to exercise Turner’s contractual right to ensure that corrections were safely made..
Civ. R. 56(C) provides that summary judgment shall be rendered only if “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In considering a motion for summary judgment supported by evidence, summary judgment “shall not be rendered unless it appears from such evidence or stipulation and only therefrom,, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.” Id. The court of appeals noted that, in the light most favorable to plaintiffs, “* * * there is some evidence that the general contractor’s supervisors attended the job site to oversee and coordinate safety. The general contractor’s personnel knew that methane was present in the hole where the decedents sustained their injuries.” The court of appeals further stated that the evidentiary materials “established] without dispute that the general contractor assigned the subcontractor all duties related to the excavation involved here.” Thus, the court of appeals, in essence, held that Turner, by contract, had effectively assigned those safety responsibilities to Millgard, thus escaping liability as a matter of law.
However, a general contractor should not be able to delegate, by its contract documents, responsibility for all safety precautions on the site, while retaining full authority and control over the premises and the right to direct supervision of its subcontractor’s work. To avoid liability, the delegation must be complete, and retention of control over the premises and the subcontractor’s means of performance abandoned. I would hold that a general contractor’s contractual delegation of safety responsibilities does not relieve all liability to its subcontractor’s employees where, as *117here, the general contractor retains control over the premises, retains general supervisory control over the subcontractor, and retains authority to intervene and participate in the work whenever the general contractor finds that its subcontractor is proceeding in an unsafe manner. Therefore, the trial court’s grant of summary judgment in favor of Turner was inappropriate. The jury was entitled to consider whether and to what extent Turner had breached its duty of care.
Accordingly, the judgment of the court of appeals should be reversed, and the cause remanded for trial.
Celebrezze, C.J., concurs in the foregoing dissenting opinion.