[Cite as Morris v. Rorick, 2019-Ohio-3946.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 CHARLES C. MORRIS                             JUDGES:
                                               Hon. William B. Hoffman, P.J
         Plaintiff-Appellant                   Hon. John W. Wise, J.
                                               Hon. Craig R. Baldwin, J.
 -vs-
                                               Case No. 2018CA00167
 COLLIER CONSTRUCTION

        Defendant-Appellee                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2017-CV-
                                               01125


 JUDGMENT:                                     Affirmed

 DATE OF JUDGMENT ENTRY:                       September 26, 2019


 APPEARANCES:


 For Plaintiff-Appellant                       For Defendant-Appellee

 LARRY V. SLAGLE                               MARIA PLACANICA
 2859 Aaronwood Ave., N.E.                     50 South Main Street
 Massillon, Ohio 44646                         Akron, Ohio 44308

 KATHLEEN O. TATARSKY
 236 Third Street, S.W.
 Suite 100 Carnegie Building
 Canton, Ohio 44702
Stark County, Case No. 2018CA00167                                                            2

Hoffman, P.J.
       {¶1}   Appellant Charles C. Morris appeals the summary judgment entered by the

Stark County Common Pleas Court dismissing his negligence and premises liability action

against Appellee Collier Construction Co.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On December 11, 2013, Appellant was employed as a drywall hanger for

Eric Griggy dba Custom Drywall, during construction of a home being built for Timothy

and Tiffany Barta. Appellee was the general contractor on the project.

       {¶3}   Appellant arrived at the jobsite around 8:00 a.m. on December 11, 2013,

intending to finish drywall on the walls and ceiling in the garage. Specifically, Appellant

intended to tape on the bead, a process whereby he used a paper and vinyl substance to

cover the corners before applying compound. Appellant began his work in the garage,

working from the back to the front. He used scaffolding where needed to reach the area

in which he was working.

       {¶4}   Appellant took at least two smoke breaks during the day. The first time, he

unlocked the left garage door in order to lift it to exit the garage. He left the door unlocked.

While working, he saw someone enter and exit the garage four or five times. He believed

it to be one of the people working on the stucco on the exterior of the garage.

       {¶5}   Also on December 11, 2013, Joseph Dagenhard was working for Rorick’s

Inc., a subcontractor hired to do stucco work on the exterior of the Barta residence.

Materials used by Rorick were stored inside the garage. Dagenhard raised the garage

door while Appellant was working on scaffolding inside the front of the garage. Appellant

was knocked off the scaffolding and onto an extension ladder on the floor of the garage,

fracturing his right foot and ankle.
Stark County, Case No. 2018CA00167                                                       3


      {¶6}   Appellant filed the instant action for negligence and premises liability

against Rorick, the Bartas, Griggy, Dagenhard, and Appellee on May 30, 2017. Appellee

filed a motion for summary judgment on December 22, 2017, claiming as the general

contractor, it owed no duty to Appellant, who was the employee of a subcontractor. The

trial court granted the motion on September 20, 2018. Appellant settled with or dismissed

the remaining defendants, and filed a motion to reconsider the summary judgment in favor

of Appellee. The trial court denied the motion to reconsider and entered a final appealable

order dismissing the action against Appellee.

      {¶7}   It is from the October 25, 2018 judgment Appellant prosecutes this appeal,

assigning as error:



             I. THE TRIAL COURT ERRED WHEN IT GRANTED COLLIER

      CONSTRUCTION’S          MOTION      FOR    SUMMARY       JUDGMENT        AND

      CONCLUDED AS A MATTER OF LAW THAT MORRIS COULD NOT

      RECOVER FROM COLLIER CONSTRUCTION FOR THE INJURIES HE

      SUSTAINED ON THE JOB SITE.

             II. THE TRIAL COURT ERRED WHEN IT GRANTED COLLIER

      CONSTRUCTION’S MOTION FOR SUMMARY JUDGMENT AND DENIED

      MORRIS’ MOTION TO RECONSIDER.                    A GENUINE ISSUE OF

      MATERIAL FACT EXISTED AS TO WHETHER A DUTY OF CARE

      RESTED          WITH    THE     GENERAL        CONTRACTOR           COLLIER

      CONSTRUCTION UNDER THE AIA CONTRACT.
Stark County, Case No. 2018CA00167                                                             4


       {¶8}   Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R.

56(C) which provides in pertinent part:



              Summary judgment shall be rendered forthwith if the pleadings,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence, and written stipulations of fact, if any, timely filed in

       the action, show that there is no genuine issue as to any material fact and

       that the moving party is entitled to judgment as a matter of law. No evidence

       or stipulation may be considered except as stated in this rule. A summary

       judgment shall not be rendered unless it appears from the evidence or

       stipulation, and only from the evidence or stipulation, 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, that party being

       entitled to have the evidence or stipulation construed most strongly in the

       party’s favor.



       {¶9}   Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. The party moving for summary judgment

bears the initial burden of informing the trial court of the basis for its motion and identifying

those portions of the record which demonstrate the absence of a genuine issue of material

fact. The moving party may not make a conclusory assertion that the non-moving party
Stark County, Case No. 2018CA00167                                                       5


has no evidence to prove its case. The moving party must specifically point to some

evidence which demonstrates the moving party cannot support its claim. If the moving

party satisfies this requirement, the burden shifts to the non-moving party to set forth

specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v.

Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St.3d 280,

1996-Ohio-107.

      {¶10} It is under this standard we review Appellant’s two assignments of error.

                                            I.

      {¶11} In his first assignment of error, Appellant argues the court erred in finding

Appellee owed no duty to him pursuant to principles of common law negligence and R.C.

4101.11 and .12, which provide:



             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 therein and for frequenters thereof, 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 and

      frequenters.



      {¶12} R.C. 4101.11.
Stark County, Case No. 2018CA00167                                                      6


             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.



      {¶13} R.C. 4101.12.

      {¶14} The duty owed to frequenters, 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 the premises be kept in a reasonably safe condition, and

warning be given of dangers of which he has knowledge. See, e.g., Westwood v. Thrifty

Boy, 29 Ohio St.2d 84, 58 O.O.2d 154, 278 N.E.2d 673, paragraph one of the syllabus

(1972). The duties set forth in R.C. 4101.11 and 4101.12 generally do not apply, however,

to a general contractor’s duty to an independent contractor, when the independent

contractor engages in inherently dangerous work. Frost v. Dayton Power & Light Co.,

138 Ohio App.3d 182, 190, 740 N.E.2d 734, 740 (4th Dist. Adams 2000), amended, 4th

Dist. Adams No. 98 CA 6692000 WL 1029141.

      {¶15} Appellant first argues he was not injured while participating in an inherently

dangerous activity. We disagree.
Stark County, Case No. 2018CA00167                                                          7

       {¶16} In Bond v. Howard Corp., 72 Ohio St.3d 332, 1995-Ohio-81, 650 N.E.2d

416 (1995), the plaintiff, an independent contractor's employee, was constructing a wall

at a construction site. The materials the plaintiff needed to perform his work were located

near an unguarded opening on the second floor of the site. As the plaintiff was gathering

some materials, he fell through the unguarded opening and sustained severe injuries.

The Ohio Supreme Court applied the inherent danger exception, although arguably falling

through an unguarded opening is not an inherent danger of constructing a wall. The Bond

court held a construction site is inherently a dangerous setting. Id. The Bond decision

implies in determining whether a task involves inherent dangers, the court should not

construe “inherent dangers” narrowly, but rather should examine the circumstances

surrounding the work activities as well as the work itself to determine whether the

performance of a task contains elements of real or potential danger. Frost, supra, at 195,

740 N.E.2d at 744.

       {¶17} Appellant argues he was not injured by an inherently dangerous activity, but

rather by Dagenhard’s failure to exercise “any care at all” when he knew Appellant was

applying drywall on scaffolding at the front of the garage. Brief of Appellant, p. 11.

However, as recognized by the Ohio Supreme Court in Bond, a construction site is an

inherently dangerous setting. We find working on scaffolding on a construction site is an

inherently dangerous activity, and the trial court did not err in applying the inherent danger

exception in the instant case.

       {¶18} Ordinarily, a general contractor who engages the services of an

independent contractor owes no duty of care to the employees of the independent

contractor. Sopkovich v. Ohio Edison Co., 81 Ohio St.3d 628, 693 N.E.2d 233, 1998–
Stark County, Case No. 2018CA00167                                                        8


Ohio–341 (1998). However, when a general contractor engages the services of an

independent sub-contractor and “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, [the general contractor] can be held responsible for

the injury or death of an employee of the independent contractor.” Hirschbach v.

Cincinnati Gas & Elec. Co., 6 Ohio St.3d 206, 452 N.E.2d 326, syllabus (1983). “‘[A]ctive

participation’ includes situations in which a property owner exercises control over the work

activities of the independent contractor, and also includes situations in which a property

owner exercises control over a critical aspect of the employee's place of employment or

‘working environment.’” Sopkovich, supra at 635, 693 N.E.2d 233.

       {¶19} The cases cited by Appellant in support of his argument Appellee owed him

a duty of care all apply the exception in which a general contractor exercised control over

a critical aspect of the place of employment or working environment, rather than the

general contractor exercising control over the work activities of the independent

contractor.

       {¶20} In Chlopecki v. Gilbane, 8th Dist. Cuyahoga No. 98476, 2012-Ohio-6142,

the plaintiff, an employee of a subcontractor, fell from a scaffolding when the wheel of the

scaffolding fell into a hole in the floor which the general contractor had covered with

plywood, but failed to properly fasten the plywood. In finding a duty of care existed, the

Court of Appeals for the Eighth District held:



              Gilbane did, however, exercise control over a “critical variable” of the

       workplace—the placement of the plywood boards covering the open holes
Stark County, Case No. 2018CA00167                                                       9


      on the floor. Gilbane understood that the placement of the boards posed a

      safety hazard. It specifically wrote a warning on the plywood and conducted

      safety meetings at which it warned employees that it had placed plywood

      over the holes in the floor. Having undertaken to place the plywood, Gilbane

      was responsible for any negligence in how the plywood was placed. It

      admittedly chose not to fasten the plywood to the floor with screws lest the

      floor itself be damaged. Reasonable minds could differ on whether Gilbane

      exercised reasonable care in choosing not to fasten the plywood to the floor

      and whether it exercised reasonable care to ensure that the plywood was

      sufficiently anchored to the ground to prevent it from moving.



      {¶21} Id. at ¶ 11 (emphasis added).

      {¶22} In Barnett v. Beazer Homes Invests., L.L.C., 12th Dist. Butler No. CA2007-

11-276, 180 Ohio App.3d 272, 2008-Ohio-6756, 905 N.E.2d 226, Barnett was an

employee of a subcontractor installing gutters on a house, and was injured when he came

into contact with high voltage electric wires. Beazer was the general contractor on the

site. Three weeks prior to Barnett’s injury, a siding company was working on the house

when a ladder fell into the wires, causing an outage to a nearby trucking company. The

electric company issued a safety warning to Beazer, and told Beazer no further work

could be done on the side of the house near the wires without first contacting the electric

company to have the lines de-energized. Beazer failed to have the line de-energized

before Barnett began working on the side of the house, and scheduled Barnett’s employer

to install the gutters without informing them the line would need to be de-energized before
Stark County, Case No. 2018CA00167                                                           10


they could start. The court found Beazer retained control over de-energizing the line, a

critical variable in Barnett’s employment. Id. at ¶25.

       {¶23} In Cefaratti v. Mason Structural Steel Co., 136 Ohio App.3d 363, 365, 736

N.E.2d 913, 914 (8th Dist. Cuyahoga 1999), Cefaratti, an employee of a subcontractor,

fell from a stairwell while installing pipes at a building construction site. Prior to the fall,

the general contractor had a guard rail on the stairwell, but had removed the rail without

warning the workers to avoid the area. The court held there was “a genuine issue of

material fact as to whether appellee is responsible for the absence of guard railing and

whether the absence of guard railing constituted a critical variable in the workplace.” Id.

at 366, 736 N.E.2d at 914.

       {¶24} We find the instant case distinguishable from the cases relied upon by

Appellant. In the cases cited above, the general contractor took affirmative control over

a variable in the workplace, which ultimately caused injury to the employee of the

subcontractor, i.e., failing to properly secure plywood over an opening in the floor, failing

to have electrical wires de-energized despite a prior incident and warning from the electric

company, placing a guardrail but later removing the rail without notifying the workers.

Appellant’s claim is premised upon Appellee’s failure to place warning signs on the

garage door. However, there is no evidence Appellee had exercised control over the

opening and closing of the garage door prior to the day on which Appellant was injured.

We find the trial court did not err in finding Appellee owed no duty of care to Appellant.

       {¶25} Finally, Appellant argues the court did not consider the affidavit of Jeffrey

B. Jones, an expert in the field of construction management, opining Appellee was

negligent in several respects, and such negligence was a proximate cause of the injuries
Stark County, Case No. 2018CA00167                                                     11


to Appellant. However, the trial court found as a matter of law Appellee owed no duty of

care to Appellant, and therefore did not reach issues of negligence and proximate cause

set forth in the Jones affidavit.

       {¶26} The first assignment of error is overruled.

                                                 II.

       {¶27} In his second assignment of error, Appellant argues Appellee assumed a

contractual duty of care by virtue of a contract it entered with the Bartas.

       {¶28} Paragraph 10.2 of AIA Document A201-2007 provides:




              § 10.2.1 The Contractor shall take reasonable precautions for safety

       of, and shall provide reasonable protection to prevent damage, injury or loss

       to

              1. employees on the Work [site] and other persons who may be

       affected thereby;

              § 10.2.2 The Contractor shall comply with and give notices required

       by applicable laws, statutes, ordinances, codes, rules and regulations, and

       lawful orders of public authorities bearing on safety of persons or property

       or their protection from damage, injury or loss.

              § 10.2.3 The Contractor shall erect and maintain, as required by

       existing conditions and performance of the Contract, reasonable

       safeguards for safety and protection, including posting danger signs and
Stark County, Case No. 2018CA00167                                                     12


      other warnings against hazards, promulgating safety regulations and

      notifying owners and user of adjacent sites and utilities.




      {¶29} While a general contractor may explicitly assume responsibility for workers'

safety, many contract provisions between general contractors and subcontractors do not

give rise to such assumed responsibility. Nicholson v. Turner/Cargile, 107 Ohio App.3d

797, 805, 669 N.E.2d 529, 534–35 (10th Dist. Franklin 1995). Contract provisions which

do not create such a duty include provisions: (1) assigning control over safety procedures

to the general contractor, Cafferkey v. Turner Const. Co., 21 Ohio St.3d 110, 112–13,

488 N.E.2d 189, 192 (1986); (2) retaining a general contractor's right to review details

and construction; (3) requiring the work to be finished under an architect's and general

engineer's direction and to their satisfaction, Gilday v. S & R Playhouse Realty Co. (June

14, 1990), Cuyahoga App. No. 57022, unreported, 1990 WL 82301 (June 14, 1990); (4)

promising a general contractor will have a representative at the job site; (5) requiring a

general contractor specify the work to be done by the subcontractor and specifying the

items the general contractor will inspect; (6) requiring a subcontractor to replace

personnel found to be incompetent; and (7) promising material supplied by the

subcontractor will meet specifications. Mount v. Columbus & S. Ohio Elec. Co. (1987), 39

Ohio App.3d 1, 528 N.E.2d 1262, paragraph four of the syllabus (1987). Nicholson, supra.

      {¶30} Contract language which is nothing more than “boilerplate” safety language

common to all construction contracts does not create a duty from the general contractor

to employees of a subcontractor. Cafferkey, supra, at 113. See, also, Bond v. Howard

Corp., 72 Ohio St.3d 332, 1995-Ohio-81, 650 N.E.2d 416 (1995) (“we reject appellants'
Stark County, Case No. 2018CA00167                                                         13


assertions that various contractual provisions involving Howard created a duty of care

extending from Howard to employees of Valentine. The contractual provisions relied upon

by appellants simply demonstrate that Howard retained general supervisory capacity over

the construction project and, in particular, that it retained control over safety policies and

procedures at the site.”).

       {¶31} We find the AIA contract is a boilerplate contract, containing boilerplate

safety language insufficient to create a specific duty Appellee owed Appellant. The

contract assigns control over safety procedures to the general contractor, which pursuant

to the case law cited above is insufficient to give rise to a legal duty.

       {¶32} Further, unlike the contract in Cafferkey, the contract at issue in the instant

case is not between the general contractor and the subcontractor, but rather is between

the general contractor and the homeowner. The record does not indicate or suggest

Appellant was an intended third party beneficiary of the contract between the Bartas and

Appellee. We find the court did not err in failing to find the AIA contract created a duty of

care extending from Appellee to Appellant.
Stark County, Case No. 2018CA00167                                             14


      {¶33} The second assignment of error is overruled.

      {¶34} The judgment of the Stark County Common Pleas Court is affirmed.




By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur
