Michaels v. Ford Motor Co. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Michaels, Appellant, v. Ford Motor Company, Appellee.
[Cite as Michaels v. Ford Motor Co. (1995), Ohio St.3d
.]
Torts -- Negligence -- Owner of construction site, by virtue of
directing general contractor to perform task required by
contract specifications, owes no duty of care under R.C.
4101.11 and 4101.12 to employee of subcontractor who is
subsequently injured as a result of general contractor's
failure to keep area where it performed the task in a safe
condition.
(No. 94-524 -- Submitted April 25, 1995 -- Decided July
12, 1995.)
Appeal from the Court of Appeals for Lorain County, No.
93CA005603.
To construct a paint building at its truck plant in Avon
Lake, Ohio, appellee Ford Motor Company hired Lathrop
Contracting as the general contractor. Doane Electric was an
electrical subcontractor on the construction site. While at
the construction site, Russell Michaels, an employee of Doane
Electric, sustained injuries after falling through a hole that
Lathrop employees had cut in the second floor. Michaels died
the next day.
John T. Hoey, Jr., a Ford employee, had instructed William
Haase, Lathrop's assistant superintendent, to cut holes in the
floor pursuant to specifications in the construction contract
between Lathrop and Ford. Thinking that the holes would not be
utilized immediately and that floor openings were a safety
concern, Haase had objected to cutting the holes at that time.
However, there was evidence that the holes were needed so that
paint boxes could be designed and fabricated to fit inside the
holes. Responding to Haase's concerns, Hoey had stated,
"[Y]ou've got a job to do friend, you've got a contract, you
cut the holes and you cover them." In point of fact, pursuant
to its contract with Ford, Lathrop was responsible for
providing and maintaining barricades and guard rails around
floor openings until the openings were enclosed by permanent
construction.
After Lathrop employees cut the hole through which

Michaels would later fall, they covered the hole with a piece
of plywood without securing the plywood to the floor. No one
from Ford told any Lathrop employee how to cover any of the
holes, including the one through which Michaels fell.
On February 21, 1990, a foreman of Doane Electric
instructed Michaels, Daniel Edgar, and another Doane Electric
employee to clear an area on the second floor, where they were
going to install an electrical panel. While they were cleaning
debris from the area, Edgar moved the loose piece of plywood
covering the hole in the floor that Lathrop employees had cut.
Edgar warned Michaels, who had his back to Edgar, not to move
the piece of plywood because it was covering a hole. About
fifteen minutes later, Edgar discovered that Michaels had
fallen through the hole to the floor below. No one had
witnessed the fall. The day after the accident occurred,
Lathrop employees secured with screws the piece of plywood
covering the hole.
Pursuant to R.C. 2125.01, appellant Glenn Michaels, the
administrator of the estate of Russell Michaels, filed a
wrongful death action against the Ford Motor Company, asserting
that Ford violated its duties under R.C. 4101.11 and 4101.12 by
failing to provide Michaels, a frequenter, with a safe place of
employment. The Court of Common Pleas of Lorain County granted
Ford's motion for summary judgment, finding that Ford did not
owe Michaels a duty to provide a safe workplace.
Affirming the judgment of the trial court, the court of
appeals held that Ford did not owe a duty of care to Michaels.
The court reasoned that R.C. 4101.11 and 4101.12 did not apply
because Ford did not have "custody or control" over Michaels or
the area surrounding the floor opening on the day of his fall.
The court explained that Ford merely had acted in a supervisory
capacity at the construction site by monitoring work progress
and ensuring that construction was completed according to
specifications.
The cause is now before this court pursuant to the
allowance of a discretionary appeal.

Spangenberg, Shibley, Traci, Lancione & Liber, John D.
Liber and Justin F. Madden, for appellant.
Thompson, Hine & Flory, S. Stuart Eilers, Timothy J.
Coughlin and Michael E. Smith, for appellee.

Wright, J. The issue in this case is whether an owner of
a construction site, by virtue of directing a general
contractor to perform a task required by contract
specifications, owes a duty of care under R.C. 4101.11 and
4101.12 to an employee of a subcontractor who is subsequently
injured as a result of the general contractor's failure to keep
the area where it performed the task in a safe condition. The
answer to this query is "no."
R.C. 4101.11 states: "Every employer * * * 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, * * * and shall do every other
thing reasonably necessary to protect the life, health, safety,
and welfare of such employees and frequenters." (Emphasis
added.) R.C. 4101.12 similarly imposes a duty upon an employer

to provide employees and frequenters with a safe place of
employment.1 As used in these two sections, "frequenter" means
"every person, other than an employee, who may go in or be in a
place of employment under circumstances which render him other
than a trespasser." R.C. 4101.01(E).
The question in this case is whether Ford was an
"employer" as to Michaels within the meaning of the frequenter
statutes. Ford owed Michaels a duty to provide a safe place of
employment only if it was an "employer" under the frequenter
statutes.2 If Ford was not an "employer," the frequenter
statutes simply do not apply. See Comerford v. Jones &
Laughlin Steel Corp. (1959), 170 Ohio St. 117, 10 O.O.2d 11,
162 N.E.2d 861, syllabus.
R.C. 4101.01(C) defines "employer" as "every person, firm,
corporation, agent, manager, representative, or other person
having control or custody of any employment, place of
employment, or employee." (Emphasis added.) It is undisputed
that Ford did not have custody or control of Michaels or his
employment. Therefore, the only remaining issue is whether
Michaels was a frequenter of a place of employment that was
under the custody or control of Ford.
On a case-by-case basis, this court has articulated the
legal principles governing whether an owner (or a general
contractor)3 owes a duty of care under the frequenter statutes
because it has custody or control of the employee, employment,
or place of employment. In Wellman v. E. Ohio Gas Co. (1953),
160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, paragraph one of
the syllabus, we 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."
In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio
St.3d 206, 6 OBR 259, 452 N.E.2d 326, syllabus, we created an
exception to the general rule: "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." (Emphasis added.) In Hirschbach, we concluded
that the jury could reasonably find the owner liable for the
death of an independent contractor's employee because the owner
"interfered with the mode of the job operation," "actually
participated in the job operation by dictating the manner and
mode in which the winching phase of the job was to be
performed," and "had sole control over the safety features
necessary to eliminate the hazard." (Emphasis added.) Id. at
208, 6 OBR at 261, 452 N.E.2d at 329.
In Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d
110, 21 OBR 416, 488 N.E.2d 189, this court refined the
Hirschbach exception and held in the syllabus that "[a] general
contractor who has not actively participated in the
subcontractor's work, does not, merely by virtue of its
supervisory capacity, owe a duty of care to employees of the

subcontractor who are injured while engaged in inherently
dangerous work."4 (Emphasis added.) In Cafferkey, we
concluded that the general contractor did not owe a duty of
care to two employees of a subcontractor who were injured at
the construction site. We explained that although the general
contractor had retained the ability to coordinate the
activities of the subcontractor in order to ensure compliance
with contract specifications, the general contractor did not
"control the means or manner" of the subcontractor's
performance. (Emphasis added.) Id. at 113, 21 OBR at 418, 488
N.E.2d at 192.
Most recently, in Bond v. Howard Corp. (1995), 72 Ohio
St.3d 332, N.E.2d , syllabus, this court held that the
term "actively participated" means "directed the activity which
resulted in the injury and/or gave or denied permission for the
critical acts that led to the employee's injury, rather than
merely exercising a general supervisory role over the
project." We explained that the distinguishing factor between
Wellman and Hirschbach was that "the party who hired the
independent contractor in Wellman had inspectors at the job
site, but only to ensure that the job was completed according
to specifications." Id. at , N.E.2d at . In Bond,
we also emphasized that a party's "retention of the authority
to monitor and coordinate activities" does not constitute
"active participation." Id. at 335, N.E.2d at .
In the case before us, Ford exercised its proper
supervisory role by monitoring work progress at the
construction site, interpreting plans and specifications, and
ensuring that construction was completed according to required
specifications. As part of its supervision, Ford directed
Lathrop, the general contractor, to cut floor openings as
required by contract specifications. Applying the Bond
definition of "actively participated," the "activity which
resulted in the injury" to Michaels and the "critical act" that
led to Michaels' injury was the failure to adequately safeguard
the hole through which Michaels fell. Ford neither directed
Lathrop as to the manner in which the latter should safeguard
the floor opening nor gave or denied permission with regard to
the way in which the hole was covered. Much to the contrary,
Ford retained no custody or control over the area where Lathrop
cut the hole through which Michaels subsequently fell. Nor did
Ford retain control over the means or manner of Lathrop's or
Doane Electric's performance of any of their duties at the
construction site. Cf. Hirschbach, supra (where the owner
directed the manner in which an independent contractor
performed an inherently dangerous job).
"Supervision of a construction job, i.e., coordinating
work and directing contractors to perform tasks in accordance
with contract specifications, has never constituted 'active
participation' in the work of an independent contractor. The
very nature of the construction business requires a general
contractor or the owner of a construction site to 'supervise' a
construction job." Bond, at , N.E.2d at (Wright,
J., concurring). An owner of a construction site who merely
directs an independent contractor to perform a task required by
contract specifications but does not retain control over the
means or manner in which that task is performed does not owe a

duty of care to an employee of a subcontractor who is
subsequently injured as a result of the other contractor's
performance of the task in an unsafe manner.
As a matter of law, Ford owed no duty of care to Michaels
under the frequenter statutes. Accordingly, the trial court
and the court of appeals properly concluded that Ford was
entitled to summary judgment.
Judgment affirmed.
Moyer, C.J., and Cook, J., concur.
F.E. Sweeney, J., concurs in judgment only.
Douglas, Resnick and Pfeifer, JJ., dissent.

FOOTNOTES:
1 That section provides: "No employer shall require,
permit, or suffer any employee to go or be in any employment or
place of employment which is not safe, and no such employer
shall fail to furnish, provide, and use safety devices and
safeguards, or fail to obey and follow orders or to adopt and
use methods and processes reasonably adequate to render such
employment and place of employment safe. No employer shall
fail to do every other thing reasonably necessary to protect
the life, health, safety, and welfare of such employees or
frequenters. No such employer or other person shall construct,
occupy, or maintain any place of employment that is not safe."
2 If Ford did not owe Michaels a duty of care under the
frequenter statutes, it did not owe him a common-law duty of
care because the frequenter statutes impose essentially the
same duty of care upon an owner or occupier of property as that
imposed at common law. See Eicher v. United States Steel Corp.
(1987), 32 Ohio St.3d 248, 249, 512 N.E.2d 1165, 1167; Westwood
v. Thrifty Boy Super Markets, Inc. (1972), 29 Ohio St.2d 84, 58
O.O.2d 154, 278 N.E.2d 673, paragraph one of the syllabus.
3 As is evident from our cases, when determining if a
duty of care is owed pursuant to the frequenter statutes, the
legal test is the same for owners and general contractors: Did
the party have custody or control of the injured employee, the
employment, or the place of employment? The answer to this
question obviously depends upon the specific circumstances of
each case, not the general status of the parties.
4 As we previously have noted, a subcontractor who works
at a construction site is engaged in inherently dangerous
work. See Bond, infra, at 334, N.E.2d at .