[Cite as Rembowski v. Rudolph Libbe, Inc., 2020-Ohio-2864.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Nicholas Rembowski                                        Court of Appeals No. L-19-1091

        Appellant                                         Trial Court No. CI0201703251

v.

Rudolph/Libbe Inc., et al.                                DECISION AND JUDGMENT

        Appellees                                         Decided: May 8, 2020

                                                *****

        Kevin J. Boissoneault and Jonathan M. Ashton, for appellant.

        Christopher W. St. Marie, Aaron S. Evenchik and Douglas J.
        Suter, for appellee Rudolph/Libbe Inc.

        Justin D. Harris and Adam Borgman, for appellee Dunbar
        Mechanical, Inc.

                                                *****

        SINGER, J.
        {¶ 1} Appellant, Nicholas Rembowski, appeals the April 10, 2019 judgment of the

Lucas County Court of Common Pleas which granted summary judgment to appellees

Dunbar Mechanical, Inc. and Rudolph/Libbe Inc. (“RLI”). Because appellees did not

owe a duty of care to appellant, we affirm the trial court’s judgment.
                                        Background

       {¶ 2} On or about July 14, 2016, appellant began working at the Fiske/Lubriplate

facility in Toledo, Ohio. This facility makes food grade lubricants, greases, and oils. The

facility decided to upgrade its facilities and hired Dunbar as its general contractor to

oversee the project. The project included the creation of a mezzanine level of the facility

by pouring concrete, creating two new staircases, and installing six large kettles into the

new mezzanine level. To install the kettles, large holes and curbs were created in the

mezzanine as well. Large holes also had to be cut in the roof so that the kettles could be

flown in from a different site.

       {¶ 3} Dunbar hired RLI as a subcontractor to pour the concrete for the mezzanine

level. RLI completed the mezzanine level and installed plywood coverings over the holes

for the kettles in early July 2016. Most of their employees then left the jobsite. Two RLI

workers remained on site to wrap up the job site. In order to reach the new mezzanine

level, RLI constructed two staircases that were about 100 feet away from one another and

separated by a large firewall.

       {¶ 4} On July 18, 2016, in anticipation of the kettles arriving, Dunbar ordered RLI

to remove the hole coverings and to secure the mezzanine level. RLI completed the

removal of the hole coverings and secured the mezzanine level by placing red danger tape

on the staircases. This was the last day RLI employees were on the jobsite.

       {¶ 5} Dunbar hired appellant’s employer GEM, Inc. to cut the large holes in the

roof and to install the curbs for the kettles. Appellant is an experienced ironworker with




2.
years of experience. Appellant began working on the site on July 14, 2016, and worked

at the site for the next five days. Appellant’s work entailed working on the mezzanine

level and working above and below the roof to cut the required holes. Appellant was on

the job site when the coverings for the holes were removed. He was aware of the

uncovered holes prior to his injury.

       {¶ 6} Dunbar instructed RLI to secure the mezzanine to ensure no one would be

injured by the uncovered holes. Dunbar’s project manager Dan Huguley stated in a

deposition he did not inform or supervise how RLI secured the mezzanine area. RLI

removed the hole covers and placed red danger tape on the staircases to ensure people

would not use the staircase to get to the mezzanine level. RLI’s employees then turned

the jobsite over to Dunbar and left the site. It was later discovered that the kettles would

be delivered a week later than expected, but Dunbar did not ask RLI to recover the holes

on the mezzanine level.

       {¶ 7} On July 19, 2016, GEM completed its portion of the project and prepared to

leave the facility for another jobsite. Appellant’s foreman ordered another GEM

employee to retrieve tools from the mezzanine level. Appellant volunteered to go up to

the level to retrieve the tools instead of the other GEM employee. Appellant walked up

one of the staircases, ducked under the red danger tape, and did not utilize any fall

protection while near the kettle holes. While appellant was winding an extension cord, he

lost his balance and fell through one of the holes. Appellant suffered several broken

bones and other injuries from his fall.




3.
       {¶ 8} The parties argue about who placed the red tape and for what purpose.

Appellant states a GEM employee placed the red tape on the staircases to warn others

that the GEM workers were working above the mezzanine level for several days. He

testified that during his days on the site, he would go under the red tape or reattach the

red tape after going through it on one of the staircases. Appellees argue that RLI placed

the red tape at the direction of Dunbar to serve as “administrative control” to stop

workers from entering the mezzanine level while the holes were uncovered.

       {¶ 9} There are also disputes as to when the red tape was placed on the staircase.

Appellant testified that the tape was placed in mid-July when GEM workers first began

cutting holes in the roof. Appellees state that the red tape was placed by RLI when they

removed the hole coverings to stop people from entering the mezzanine level.

       {¶ 10} Several pictures demonstrated the red tape that was placed on the two

staircases. On the staircase that appellant accessed for his work, there was red tape, but it

was not securely attached and looked as though it was taken off and reattached several

time. This aligns with appellant’s testimony that GEM workers went through the red tape

as they completed their work on the project.

       {¶ 11} The other staircase is almost encompassed in red tape and has a danger sign

on the red tape. It should be noted that additional red tape and the sign were added after

appellant fell. The red tape on this staircase does not appear as ragged or used as the

other staircase.




4.
                           Arguments on Summary Judgment

       {¶ 12} In its motion for summary judgment, Dunbar argues that it did not actively

participate in appellant’s work or employees, that Dunbar did not direct appellant on the

day of the fall, and that GEM’s employee ordered appellant to enter the mezzanine area

to quickly retrieve the tools from a dangerous area. In the alternative, Dunbar argues that

appellant assumed the risk when he entered a dangerous floor and through red danger

tape without taking any safety precautions.

       {¶ 13} RLI argues that because RLI and GEM were both subcontractors with no

contractual relationship, RLI was only required to exercise ordinary care regarding GEM

and its workers because it did not actively participate in appellant’s work. RLI did not

owe a duty to appellant because RLI did not retain control over the workplace and left the

jobsite completely before appellant fell. In the alternative, RLI argues that even if it did

owe a duty to appellant, he was participating in an inherently dangerous activity and was

injured by an open and obvious hazard.

       {¶ 14} In response, appellant argues that Dunbar and RLI owed him a duty of care

because they controlled a critical variable in appellant’s injury, the hole coverings.

Appellant also argues that Dunbar participated in and retained control of the jobsite

because it approved the use of the red tape before the RLI employees left.

       {¶ 15} Appellant points to the red tape as a material dispute between the parties,

which he argues bars the granting of summary judgment. Appellant testified that one of

his coworkers placed the red tape on the stairs to warn people that the ironworkers were




5.
cutting holes in the roof above the mezzanine level. Appellees argue that RLI placed the

red tape onto the stairs as an administrative control to stop people from entering the

mezzanine level with the open hole coverings. Appellant also points to the fact that the

red tape and other administrative controls do not meet the requirements of Dunbar’s

safety manual.

       {¶ 16} In its reply, RLI reiterates that it did not actively participate in appellant’s

work and argues that appellant conflates the legal precedent by adding the “critical

variable” language from the analysis regarding a general contractor and subcontractor

relationship to the analysis regarding two separate subcontractors. RLI argues that as two

subcontractors with no contractual privity and no supervisory control over one another’s

work, the parties did not owe each other a duty other than ordinary care.

       {¶ 17} Dunbar focuses its reply on the fact that it did not owe a duty to appellant

because it did not actively participate in appellant’s work. Dunbar also argues that

appellant misapplies case law to this matter because his case law involved a property

owner rather than a general contractor.

                                    Trial Court Decision

       {¶ 18} The trial court agreed with appellees and found that they did not owe

appellant a duty of care because they did not control the critical variable in his work that

caused his injury. The trial court found that the critical variable was appellant deciding to

go get his tools, rather than the uncovering of the kettle holes by RLI. The trial court also

found that his accident was not foreseeable and that appellant failed to take proper safety




6.
measures while gathering his tools. The court found that this variable was under

appellant’s control and that he only took orders from GEM, rather than appellees.

                                  Assignment of Error

       {¶ 19} Appellant brings one assignment of error for our review:

              The trial court erred when it granted summary judgment in favor of

       Appellees Dunbar Mechanical, Inc. and Rudolph/Libbe Inc.

                                           Law

       {¶ 20} An appellate court reviews a trial court’s summary judgment decision de

novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Summary judgment will be granted when no genuine issues of material fact exist when

after, construing all the evidence in favor of the nonmoving party, reasonable minds can

only conclude that the moving party is entitled to judgment as a matter of law. Civ.R.

56(C). Accord Lopez v. Home Depot, USA, Inc., 6th Dist. Lucas No. L-02-1248, 2003-

Ohio-2132, ¶ 7. When a properly supported motion for summary judgment is made, an

adverse party may not rest on mere allegations or denials in the pleading, but must

respond with specific facts showing there is a genuine issue of material fact. Civ.R.

56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984).

       {¶ 21} To establish a common law action for negligence, a plaintiff must

demonstrate the existence of a duty, a breach of that duty, and that an injury occurred that

was the proximate result of that breach. Di Gildo v. Caponi, 18 Ohio St.2d 125, 247

NE.2d 732 (1969). A defendant’s duty to a plaintiff depends on the relationship between




7.
the parties and the foreseeability of injury to someone in the plaintiff’s position. Huston

v. Konieczny, 52 Ohio St.3d 214, 217, 556 N.E.2d 505 (1990). “Injury is foreseeable if a

defendant knew or should have known that his act was likely to result in harm to

someone.” Id.

       Every employer shall furnish employment which is safe for the employees

       engaged therein, shall furnish a place of employment which shall be safe

       for the employees * * * shall furnish and use safety devices and safeguards,

       shall adopt and use methods and processes, follow and obey orders, and

       prescribe hours of labor reasonably adequate to render such employment

       and places of employment safe, and shall do every other thing reasonably

       necessary to protect the life, health, safety, and welfare of such employees

       * * *.

R.C. 4101.11.

       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 to adopt and use methods and

       processes reasonably adequate tor ender 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




8.
       employees or frequenters. No such employer or other person shall

       construct, occupy, or maintain any place of employment that is not safe.

R.C. 4101.12.

       {¶ 22} “The duty owed to frequenters, including employees of other companies, is

not more than a codification of the common-law duty owed by an owner or occupier of

premises to invitees, requiring the premises be kept in a reasonably safe condition and

warning be given of dangers of which he has knowledge.” Morris v. Collier

Construction, 5th Dist. Stark No. 218CA00167, 2019-Ohio-3946, ¶ 14, citing Westwood

v. Thrifty Boy, 29 Ohio St.2d 84, 278 N.E.2d 673 (1972), paragraph one of the syllabus.

These requirements, however, do not normally apply to a general contractor’s duty to an

independent contractor who is engaging in inherently dangerous work. Id., citing Frost v.

Dayton Power & Light Co., 138 Ohio App.3d 182, 190, 740 N.E.2d 734 (4th Dist.2000).

When an independent contractor undertakes work for another knowing that there is a real

or potential danger to one of their employees, “no liability for such injury ordinarily

attaches to the one who engaged the services of the independent contractor.” Wellman v.

East Ohio Gas Co., 160 Ohio St. 103, 113 N.E.2d 629 (1953), paragraph one of the

syllabus.

       {¶ 23} An exception to this rule exists however. “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




9.
death of an employee of the independent contractor.” Hirschbach v. Cincinnati Gas &

Elec. Co., 6 Ohio St.3d 206, 452 N.E.2d 326 (1983), syllabus. A general contractor

actively participates in a subcontractor’s work when “the general contractor 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.” Bond v. Howard Corp., 72 Ohio St.3d 332, 337, 650

N.E.2d 416 (1995). “Thus, active participation means more than supervising or

coordinating. The employer must exercise control over the work activities or retain

control over a critical variable in the workplace before it can be held liable to the

independent contractor’s employees.” (Citations omitted). Pfaff v. Pahl Ready Mix

Concrete, Inc., 6th Dist. Lucas No. L-01-1306, 2002 WL 126073 (Feb. 1, 2002). A

construction site is an inherently dangerous place and a subcontractor who works at a

construction site engages in inherently dangerous work. Michaels v. Ford Motor Co., 72

Ohio St.3d 475, 478, 650 N.E.2d 1352 (1995), fn. 4.

       {¶ 24} “An independent contractor who lacks a contractual relationship with a

second independent contractor owes no affirmative duty beyond that of ordinary care to

the employees of the second contractor, where the first contractor does not supervise or

actively participate in the second contractor’s work.” Kucharski v. Nat’l Eng. &

Contracting Co., 69 Ohio St.3d 430, 633 N.E.2d 515 (1994), syllabus. “[W]hen two or

more independent contractors are engaged in work on the same premises, it is the duty of

each contractor, in prosecuting its work, to use ordinary and reasonable care not to cause

injuries to the employees of another contractor.” Id. at 434.




10.
       {¶ 25} That is not to say that multiple subcontractors can never be liable to one

another. “Applying the ‘active participation’ definition as stated in Bond or Sopkovich is

often unworkable in situations involving multiple subcontractors since the roles among

subcontractors are typically not supervisory in nature.” Nibert v. Columbus/Worthington

Heating & Air Conditioning, 12th Dist. Fayette No. 2009CA-08-015, 2010-Ohio-1288,

¶ 22. Some subcontractor tasks will overlap and occupy the same workspace, even if

there is no supervisory relationship. Id. Therefore, subcontractors still must exercise a

duty of ordinary and reasonable care to other subcontractors when executing their jobs in

an inherently dangerous work environment. Id.

                                          Analysis

        RLI did not owe appellant a duty of care because of their relationship

       {¶ 26} RLI only owed a duty of ordinary care to GEM and its employees because

they were separate subcontractors with no supervisory control over one another. RLI and

GEM were coequal independent contractors who had no privity between them and RLI

did not control or supervise GEM’s work.

       {¶ 27} Although both GEM and RLI shared a workspace, we cannot find that RLI

actively participated in the work of appellant and GEM. RLI did not participate in any

manner with the work of GEM. No permission was granted or denied to GEM. Further,

they did not control a critical variable that caused appellant’s injuries.

       {¶ 28} Appellant argues rather that RLI actively participated in his work because

RLI removed the hole coverings, which appellant argues was the critical variable in his




11.
injury. We do not agree. First, RLI had no control over any part of the site at the time of

appellant’s injury as RLI turned over any control of the job site to Dunbar after removing

the hole coverings. Second, appellant’s injury was not merely caused by the lack of hole

coverings. His injury was primarily caused by entering a dangerous area without safety

precautions. He did this at the direction of his own employer GEM, rather than at the

direction of RLI.

       {¶ 29} Either way, we cannot find that RLI retained control over the hole

coverings; they were ordered to remove the hole coverings by Dunbar and did not

exercise any control over appellant’s work. They completed their scope of work that they

were ordered to complete and left the job site.

       {¶ 30} Kucharski is on point in our analysis. In that case, a general contractor was

hired to build a new settling tank for a wastewater treatment plant for a city. Kucharski,

69 Ohio St.3d at 430-431. The general contractor directly reported to the city. Id.

Another contractor was hired to complete electrical work who also reported directly to

the city. Id. The process of creating this new tank involved creating a large tank that was

partially covered by a concrete deck. Id. While the concrete deck was being poured,

scaffolding and a wooden deck were installed to permit workers to install the concrete

deck. Id. Wooden guardrails were also installed around the settling tank because it stood

six feet off the ground. Id. When the concrete deck was installed, the scaffolding and

guardrails were removed. This left a large concrete deck hanging over the rest of the

empty settling tank with no other covering. Id.




12.
       {¶ 31} While attempting to complete his task on the concrete deck, he fell from

the concrete deck into the tank, where he was injured. Id. The previous day the electrical

contractor determined that, although there were no longer any safety rails, the concrete

deck was large enough that continued work on the deck was safe. Id. The contractor

who installed the deck did not control or ask the injured worker to complete work on the

deck. Id. The Ohio Supreme Court found that the general contractor did not owe a duty

to the worker who was injured because of the separate nature of the contractor’s work

and the lack of active participation in the worker’s injury. Id. at 434. The court rather

found that it was because the worker’s supervisor determined it was safe to work on the

concrete deck without safety equipment that caused the worker’s injury rather than the

general contractor’s removal of the guardrails. Id.

       {¶ 32} Here, as in Kucharski, RLI and GEM were separate contractors who had no

control or participation in each other’s work. The two companies did not have privity

with one another, but their workspaces did overlap. And just as in Kucharski, appellant

was aware of the dangers that were present, and his supervisor determined that no safety

precautions needed to be taken. RLI was not appellant’s employer and exercised no

control over him. Therefore, RLI did not owe a duty to appellant.

               Dunbar did not actively participate in appellant’s work

       {¶ 33} A different analysis is required to determine Dunbar’s duty of care to

appellant because Dunbar retained some control over the jobsite as a general contractor.

It is undisputed that appellant was working an inherently dangerous job on a construction




13.
site. Appellant was aware of these dangers as he admitted that he knew the holes existed

and that they were uncovered. Appellant volunteered to go onto the mezzanine level

despite this knowledge.

       {¶ 34} It also appears undisputed that Dunbar did not grant or deny appellant

permission or order appellant to go past the red danger tape to the mezzanine level.

Appellant was implicitly permitted to enter the mezzanine level of the jobsite by his

supervisor who ordered GEM workers to retrieve tools from the mezzanine level.

Dunbar ordered instead that no one be permitted to enter the mezzanine level by securing

the staircases.

       {¶ 35} Thus, the question becomes whether Dunbar retained or exercised control

over the critical variable in appellant’s injury. Appellant argues that the critical variable

was the removal of the hole coverings. Dunbar argues the critical variable was the

direction to bypass red danger tape without proper safety protections. We agree with

Dunbar.

       {¶ 36} It was not the mere fact that the hole coverings were removed that caused

appellant’s injuries. It was appellant’s entry into a dangerous area and past red danger

tape in order to retrieve tools. Appellant’s entry was ordered by appellant’s employer

GEM, rather than Dunbar and RLI. Appellant’s entry into this dangerous area led to his

injury and his retrieval of the tools directly led to his fall.

       {¶ 37} Even if we found that the hole coverings were the critical variable in

appellant’s injury, Dunbar did not retain control over the variable. Dunbar instructed the




14.
holes to be removed and for the staircases to be restricted. Dunbar never approved of the

work by RLI or gave them specific instructions on how to carry out their work

assignment. Therefore, Dunbar would not have been found to have actively participated

in the critical variable of appellant’s injury if the variable was the uncovered hole.

       {¶ 38} Therefore, we find appellant’s assignment of error not well-taken and

affirm the April 10, 2019 judgment of the Lucas County Court of Common Pleas.

Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Thomas J. Osowik, J.                                        JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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