Merimee v. Wildner

[Cite as Merimee v. Wildner, 2021-Ohio-2033.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

MICHAEL T. MERIMEE, :

Plaintiff-Appellant, :
No. 109980
v. :

SYLVIA A. WILDNER, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 17, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-912765

Appearances:

Consolo Law Firm, L.P.A., Frank Consolo, and Horace F.
Consolo, for appellant.

Patrick S. Corrigan, for appellees.

SEAN C. GALLAGHER, P.J.:

Michael T. Merimee appeals the trial court’s decision granting

summary judgment in favor of Sylvia Wildner and Sue Delaney (collectively
“defendants”) upon Merimee’s negligence claims that stem from his fall from a

second-story balcony in October 2015. For the following reasons, we affirm.

Merimee worked for Neubert Painting, Inc., which entered into a

contract with the defendants to paint the exterior of their home. Merimee had been

employed by Neubert for at least a year before the accident. The scope of the work

at the defendants’ home included scraping, priming, and painting all exterior

components, including the wood railing installed on the second-story balcony. The

defendants had not used the balcony more than a couple times since 2004, when

they purchased the property, and neither had noticed any issues with the railing

besides the need for painting.

On the day of the accident, Merimee was responsible for preparing

and painting the railing on the second-story balcony. As Neubert employees and an

expert testified, the standards in the painting industry, and how Neubert employees

are instructed, required painters to place a ladder or scaffolding up against the

balcony and paint the railing from the outside of the balcony, so that the painter was

facing the work area and safely standing with three secure points of contact on a

surface they secured, while performing the work. Merimee, instead, placed a ladder

against the wall adjacent to the balcony and stepped over the railing to stand on the

balcony. When he was painting the wooden rails, he bent over the railing and

reached down, leaning over and on the railing. He believed this process of hanging

upside down to reach the lower portions of the railing to be more efficient than

setting up the ladder and moving it as he worked his way across the railing. At no
time during this process did Merimee notice any damage to the railing, nor did he

discover any signs of rotten wood or loose connections while scraping the railing.

However, he acknowledged his failure to check the railing for strength — claiming

he was not placing all his weight on the railing anyway.

According to Merimee, as he was reaching over the railing to paint the

lower part, the railing gave way. Merimee fell 12-15 feet to the ground, severely

breaking both arms.

Further inspection of the railing revealed two rusted screws on the

balcony flooring that had secured the railing post to the balcony surface from

underneath the decking. The posts had some signs of internal rot that caused the

screws to give way but showed no outward evidence of its decaying state. Based on

that incident, Merimee filed for workers’ compensation, but the claim was denied,

based primarily on the fact that Merimee was under the influence of, and admitted

to smoking, marijuana before arriving at work on the day of the accident. The trial

court granted judgment, under Civ.R. 56, in favor of the defendants based on the

argument that the defendants owed no duty to warn Merimee, who was an

independent contractor, of the danger associated with the railing or painting a

second-story structure.

Summary judgment rulings are reviewed de novo, and appellate

courts apply the same standard as the trial court. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Appellate courts accord no deference

to the trial court’s decision and independently review the record to determine
whether summary judgment is appropriate. Under Civ.R. 56, summary judgment is

appropriate when no genuine issue exists as to any material fact and, viewing the

evidence most strongly in favor of the nonmoving party, reasonable minds can reach

only one conclusion and that conclusion is adverse to the nonmoving party, entitling

the moving party to judgment as a matter of law.

On a motion for summary judgment, the moving party carries an

initial burden of identifying specific facts in the record that demonstrate his or her

entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,

662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary

judgment is not appropriate; if the moving party meets this burden, the nonmoving

party must then point to evidence of specific facts in the record demonstrating the

existence of a genuine issue of material fact for trial. Id. at 293. If the nonmoving

party fails to meet this burden, summary judgment is appropriate. Id.

“In order to validly raise a negligence claim in Ohio a plaintiff is

required to show that defendant owed a duty to plaintiff, breached that duty, and

that plaintiff sustained an injury that directly and proximately resulted from the

breach of duty.” Linker v. Xpress Fuel Mart, Inc., 7th Dist. Mahoning No. 17 MA

0172, 2018-Ohio-5404, ¶ 9, citing Menifee v. Ohio Welding Prods. Inc., 15 Ohio

St.3d 75, 77, 472 N.E.2d 707 (1984). The existence of a duty in a negligence action

is a question of law. Id., citing Laughlin v. Auto Zone Stores, Inc., 7th Dist.

Mahoning No. 08 MA 10, 2008-Ohio-4967, ¶ 11. In order to establish negligence,

Merimee must establish the existence of a duty, that the duty was breached, and that
an injury resulted from the breach. Salvati v. Anthony-Lee Screen Printing, Inc.,

2018-Ohio-2935, 117 N.E.3d 950, ¶ 3 (8th Dist.), citing Mussivand v. David, 45 Ohio

St.3d 314, 318, 544 N.E.2d 265 (1989). In resolving “whether a duty exists in the

context of premises liability that question depends, in part, on the reason plaintiff

has entered the property.” Linker at ¶ 9.

In this case, it is undisputed that Merimee was an independent

contractor entering the premises with the purpose to provide services to the

defendants, services which are considered inherently dangerous. “An independent

contractor who is working on the premises and is not a trespasser is a business

frequenter.” Anderson v. Snider Cannata Co., 8th Dist. Cuyahoga No. 91801, 2009-

Ohio-4363, ¶ 20-21, citing Alapi v. Colony Roofing, Inc., 8th Dist. Cuyahoga No.

83755, 2004-Ohio-3288.

“The duty owed to frequenters, i.e., including employees of other
companies, is no more than a codification of the common-law duty
owed by an owner or occupier of premises to invitees, requiring that
the premises be kept in a reasonably safe condition, and that warning
be given of dangers of which he has knowledge.”

Id., quoting Eicher v. United States Steel Corp., 32 Ohio St.3d 248, 249, 512 N.E.2d

1165 (1987). If the frequenter is the employee of an independent contractor, the duty

does not extend to hazards that are inherently and necessarily present because of

the nature of the work performed. Id., citing Eicher (painter hired to paint on a

construction project enters an inherently dangerous work area such that the

landowner was not liable for the painter’s fall down an open staircase on the

construction site).
 Work is “inherently dangerous” when it “creates a peculiar risk of

harm to others unless special precautions are taken.” Pusey v. Bator, 94 Ohio St.3d

275, 279, 2002-Ohio-795, 762 N.E.2d 968. When the work to be performed is

inherently dangerous, the owner of the premises generally owes no duty to an

independent contractor. As has been long held,

where an independent contractor undertakes to do work for another in
the very doing of which there are elements of real or potential danger
and one of such contractor’s employees is injured as an incident to the
performance of the work, no liability for such injury ordinarily attaches
to the one who engaged the services of the independent contractor.

Wellman v. E. Ohio Gas Co., 160 Ohio St. 103, 113 N.E.2d 629 (1953), paragraph one

of the syllabus. Thus, there is no duty owed when the independent contractor or its

employee is hired to perform inherently dangerous work because the worker is or

should be aware of the intrinsic risk associated with the work. Solanki v. Doug

Freshwater Contracting, Inc., 7th Dist. Jefferson No. 06-JE-39, 2007-Ohio-6703,

¶ 44.

If, however, the independent contractor is injured outside the actual

performance of the task for which he is hired, the owner’s duty remains intact and

the inherently dangerous work exception to negligence does not apply. Salvati,

2018-Ohio-2935, 117 N.E.3d 950, at ¶ 4. It is generally accepted in those situations

that the owner of the premises owes a duty to an independent contractor in

situations in which the owner has actual or constructive notice of a dangerous

condition that the independent contractor lacks. Id., citing Davis v. Charles

Shutrump & Sons Co., 140 Ohio St. 89, 42 N.E.2d 663 (1942), paragraph one of the
syllabus. “Such an invitee may recover when the injury results ‘* * * by reason of the

abnormally dangerous condition of the premises, only if the principal employer has,

and the servant has not, actual or constructive notice of the existence of such

condition.’” Id., quoting Eicher at 249 and Davis at paragraph one of the syllabus.

For example, in Salvati, the independent contractor was hired by the

premises owner to erect walls around a compressor with an exposed fan to create a

separate room. Id. at ¶ 1. The enclosure was not adequately lit when completed

because the electricians were scheduled to finish that aspect after the construction

of the room was completed. The injury occurred when the plaintiff inspected his

finished work, unbeknownst to the owner. Id. at ¶ 7. Believing the fan to be off due

to the temperature of the room and being unable to see, the plaintiff stuck his hand

out to feel for moving air. Id. The fan was operating and caused extensive injury to

the plaintiff’s hand. Id. In concluding that the owner owed no duty to the plaintiff,

it was recognized that the plaintiff conceded foreknowledge of the danger posed by

the dimly lit room and the uncovered fan. Id. According to the Salvati court, “[t]he

evidence leaves no question that [the plaintiff] knew and appreciated the risk

associated with the unguarded fan * * *” and accordingly, he was charged with

knowledge of the danger such that the owner had no duty to warn. Id. at ¶ 8.

In this case, the danger posed by falling from the second-story

balcony was intrinsic to the work Merimee, through his employer Neubert Painting,

was hired to undertake. As a matter of law, since Merimee was undertaking an

inherently dangerous job as an independent contractor, the defendants owed no
duty to him such that their knowledge of the potential for the decaying state of the

railing is irrelevant. Since there is no duty owed to Merimee, there can be no breach.1

Even if we considered Merimee’s claim that painting elevated

structures is not inherently dangerous work, the sole question for review, the

resolution of which turns on issues of law and not fact, is whether the defendants

had constructive or actual notice of a danger that Merimee did not. Salvati, 2018-

Ohio-2935, 117 N.E.3d 950, at ¶ 4.

As in Salvati, Merimee was aware of the dangers of painting the

second-story balcony through reliance on the railing to secure his safety since his

own testimony demonstrated that he did not intend to rely on the railing to carry

the entirety of his weight. At his deposition, he expressly stated that he only placed

“some” of his weight on the railing, demonstrating that he was aware of the dangers

associated with painting the railing in that manner and Merimee conceded that the

prescribed method for painting an elevated surface required setting up a ladder or

scaffolding to face the work area — a method he consciously rejected on the day in

question. As a matter of law, the defendants owed no duty to warn Merimee of the

dangers associated with painting elevated areas of a home by bending over the safety

1 Although Merimee goes into great detail about the defendants’ apparent
knowledge of the dilapidated state of the railing, their knowledge is irrelevant to the
question of whether a duty was owed. Knowledge of the danger is relevant to the issue of
whether a breach of a duty occurred, which presumes the existence of a duty. Further of
note, the fact that Merimee was under the influence of a controlled substance is similarly
irrelevant because comparative negligence is an issue of causation and that does not
impact the establishment or obviation of a duty owed. We, therefore, are not considering
Merimee’s use of marijuana at this juncture.
railing instead of placing a ladder against the structure. Their knowledge of the

danger was not superior to or unknown by Merimee.

The trial court did not err in granting summary judgment in favor of

the defendants upon all claims. As an independent contractor, Merimee was owed

no duty to be warned of the dangers associated with hanging upside down over a

railing to paint an upper-story surface. The danger of falling while painting an

elevated area of a residential home is intrinsic to the work Merimee was hired to

perform, obviating any duty to warn by the owners. Summary judgment was

properly entered against Merimee upon all claims. We affirm.

It is ordered that appellees recover from appellant 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.

________________________________
SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN T. GALLAGHER, J., CONCUR