dissenting. Since I am of the opinion that the evidence adduced below, when viewed in a light most favorable to appellants under Civ. R. 50(A)(4), was sufficient to overcome the motion for a directed verdict, I must respectfully dissent from the majority decision herein.
The record before us indicates that appellee, at the very least, had control of the BOP shop area and was presumably aware of the fact that the backhoe assigned to appellant was stored within the BOP shop. Since the backhoe was situated in that area in which appellee had control, and since it appears that employees of appellee working in the BOP shop routinely wore protective masks and clothing while engaged in BOP shop operations, I believe that the minimal essentials are present in order to allow this cause to proceed to the jury.
In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St. 3d 206, 6 OBR 259, 452 N.E. 2d 326, this court reviewed the applicability of R.C. 4101.01 et seq., the “frequenter statutes,” and held in the syllabus:
“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.”
Given this court’s prior determination in Hirschbach, I would reverse the decision rendered below and remand the cause for further proceedings.
Douglas, J., concurs in the foregoing dissenting opinion.