Opinion
No. 89-08880.
Decided August 29, 1990.
Warner M. Thomas, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, Mary J. Stepanic and William M. Mattes, Assistant Attorneys General, for defendant.
On June 1, 1989, plaintiff, Dennis L. Kline, filed this wrongful death action in his capacity as the administrator of the estate of his son, Brian L. Kline, against the defendant Ohio University. The action was tried before this court on the issues of liability and damages. The court has duly considered the evidence and arguments presented by counsel and renders the following decision.
Brian Kline, the decedent, was an employee of Lakeland Contractors. During the summer of 1988, A.J. Stockmeister was the general contractor hired for major renovation projects, which consisted of updating certain utility tunnels on the Ohio University campus. Due to the fact that portions of the insulation surrounding existing pipes located in the tunnels contained asbestos, Stockmeister entered a subcontracting agreement with Lakeland Contractors to remove the asbestos from the pipes before renovations commenced.
On July 5, 1988, Lakeland began work on the asbestos abatement. Lakeland arrived on the Ohio University campus around 1:30 p.m. and began to prepare the Chubb Hall tunnel so that area could be stripped the following day. Connected to Chubb Hall tunnel is a small "stub" tunnel approximately fifty feet long which is located under Baker Center. On July 5, 1988, Mike Brown, an employee of the Ohio University Office of Facility Planning, requested that Al Stipcic, Lakeland's foreman, forward an estimate to him pertaining to the removal of asbestos from the Baker Center tunnel.
On July 6, 1988, Brian Kline was electrocuted while removing asbestos in the Baker Center tunnel. Kline came into contact with several of the four wires that connected the overhead lights in the tunnel, at a spot in the circuitry from which one and one-half to two inches of insulation had been stripped.
Plaintiff alleges that defendant was negligent in its care and maintenance of its utility tunnel. The law of negligence requires that plaintiff prove, by a preponderance of the evidence, "the existence of a duty, the breach of a duty, and injury resulting proximately therefrom." Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285, 21 O.O.3d 177, 179, 423 N.E.2d 467, 469.
In Ohio, the duty which an owner or occupier of land owes to a visitor on his property depends upon the visitor's status as either an invitee, licensee or trespasser. Patete v. Benko (1986), 29 Ohio App.3d 325, 29 OBR 452, 505 N.E.2d 647.
Plaintiff contends that Kline's legal status at the time of the incident was that of business invitee. In Ohio, "`invitee' means a business visitor, that is, one rightfully on the premises of another for purposes in which the possessor of the premises has a beneficial interest." Scheibel v. Lipton (1951), 156 Ohio St. 308, 46 O.O. 177, 102 N.E.2d 453. Plaintiff contends that Ohio University, as owner of the property where Brian Kline was electrocuted, owed a duty to exercise ordinary care in maintaining the premises in a safe condition for its invitees. Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81. Plaintiff further alleges that Ohio University breached this duty to Kline by failing to warn of the tunnel's inherently dangerous condition.
Conversely, defendant asserts that Brian Kline was a "trespasser." A "trespasser" may be described as "one who unauthorizedly goes upon the private premises of another without invitation or inducement, express or implied, but purely for his own purpose or convenience; and where no mutuality of interest exists between him and the owner or occupant." Northfield Park Assoc. v. Northeast Ohio Harness (1987), 36 Ohio App.3d 14, 521 N.E.2d 466. Ohio case law holds that one owes a trespasser no duty except to refrain from wilful or wanton wrongdoing. Wheeling Lake Erie RR. Co. v. Harvey (1907), 77 Ohio St. 235, 83 N.E. 66. Defendant further argues that Lakeland proceeded to remove asbestos in the Baker Center tunnel even though no verbal or written authority from Ohio University was given them, thus making Brian Kline a trespasser since he was an employee of Lakeland.
Upon consideration of the above legal principles and the testimony at trial, the court is of the opinion that Kline's status at the time of the incident was that of an invitee. Ohio University invited Lakeland Contractors onto Ohio University property and into its tunnels in order to remove asbestos as part of a contract between the two parties. Therefore, Ohio University's invitation to Lakeland was directly connected with business dealings between the parties in which Ohio University obtained a beneficial interest.
After considering the conduct of defendant, the court finds that Ohio University breached its duty to exercise ordinary care in maintaining the premises in a safe condition for Lakeland and the decedent Brian Kline. Expert testimony established the fact that the exposed wiring which electrocuted Brian Kline constituted an inherently dangerous condition. The testimony presented at trial established that the exposed wiring was either created by Ohio University or was exposed for such an extended period of time that Ohio University can be said to have had constructive knowledge of the dangerous condition. Testimony established that the type of wire splicing that electrocuted Brian Kline, "topping in" or "splicing" into an existing circuit and failing to reinsulate or tape the wires, had been done many times in the past by Ohio University employees. Further, the Ohio University maintenance records and employees stated that no outside contractors have worked in the tunnels or done electrical maintenance since its construction in 1953.
The court further determines that Kline was within the scope of his invitation as a business invitee at the time of his death. "If the invitee goes outside of the area of his invitation, he becomes a trespasser or a licensee, depending upon whether he goes there without the consent of the possessor, or with such consent." Sweet v. Clare-Mar Camp, Inc. (1987), 38 Ohio App.3d 6, 10, 526 N.E.2d 74, 78.
In determining whether an invitee has exceeded the scope of his invitation, a court must look to the reasonableness of the invitee's conduct and the conduct of the premises owner.
A business invitation includes an invitation to use such parts of the premises as the visitor is reasonably led to believe are held open to him. Crampton v. Kroger Co. (1959), 108 Ohio App. 476, 9 O.O.2d 432, 162 N.E.2d 553. Lakeland Contractors reasonably believed it was invited into the Baker Center tunnel. There was conflicting evidence at trial as to whether a formal, verbal consent to begin work in the Baker Center tunnel had been given prior to Kline's death. However, as part of its job to remove asbestos in the specified tunnels, Lakeland had to enter the other tunnels to seal them off. Ohio University never told Lakeland that it was prohibited from entering any of these tunnels. Also, Alvin Stipcic claims he was given verbal consent by Mike Brown, Ohio University Assistant Facility Planner, to begin work on the Baker Center tunnel before Lakeland had begun the work. Thus, Lakeland reasonably believed it was within the scope of its invitation.
In addition to the usual duty of care owed to Kline as a business invitee, Ohio University also owed him a duty of care under the frequenter statutes. R.C. 4101.12 states, "[n]o such employer or other person shall construct, occupy, or maintain any place of employment that is not safe." This duty is owed to any employee or frequenter. A "frequenter" is every person, other than an employee, who may go in a place of employment under circumstances which render him other than a trespasser. R.C. 4121.01(E). The "frequenter" provision has application only where the party sought to be held liable has control or custody of any employment, place of employment, or employee. R.C. 4121.01(C). Paul McCallister and Chuck Hart, Ohio University supervisors, checked Lakeland's work every day. Ohio University retained control and custody of the premises.
The nature of this duty is not substantially different from that imposed generally by Ohio law upon an owner of property toward an invitee. Ford Motor Co. v. Tomlinson (C.A.6, 1956), 229 F.2d 873, 59 O.O. 345. Thus, the defendant owed him a duty to provide safe premises or warn him of dangers of which defendant knew or should have known.
Therefore, the defendant owed a duty of ordinary care to Kline as a business invitee and as a frequenter. This included the duty to maintain its premises in a reasonably safe manner, and to warn Kline of any hidden dangers. This court finds that Kline was electrocuted as a direct and proximate results of defendant's breach of duty.
Upon review of the evidence and in consideration of the testimony and arguments presented at trial, it is the determination of this court that plaintiff is entitled to judgment against the defendant for $250,000. Accordingly, judgment is rendered for plaintiff and against defendant for said amount.
Judgment for plaintiff.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.