Opinion
CI92-2576.
Decided October 6, 1993.
Mickel, Polofka Huffman and John R. Polofka, for plaintiffs.
Jones Scheich, Christopher F. Jones and Richard A. Scheich, for defendant.
This negligence action is before the court on a motion for summary judgment filed by the defendant, Sun Company, Inc. (R M) ("Sun"). Upon consideration of the pleadings, memoranda of counsel, evidence and applicable law, the court grants Sun's motion.
I
Certain facts are undisputed by the parties. On August 13, 1990, his first day at the job site, Zettie J. Williams was injured while removing asbestos at Sun's Toledo refinery. Burdco Environmental, Inc. ("Burdco"), an independent contractor, had been hired by Sun to remove the asbestos and was Williams's employer.
Burdco used certain procedures to properly remove the asbestos. An area known as a "polycase unit," which consisted of five levels connected by an exterior stairway, was enclosed in plastic material called "visqueen" to prevent asbestos from escaping. Williams worked on the top level within the polycase unit, removing asbestos from a pipe. The floors of the top four levels were made of heavy steel deckplates resting on I-beams to make a solid floor. On August 13, 1990, however, the deckplates in the area where Williams was working had been removed and replaced with steel grating less sturdy and secure than the plating. Williams was seriously injured when he fell into a precut hole when he stepped on a portion of the grating which gave way.
The purpose of the hole was to allow piping and other equipment to pass through the levels.
Williams filed his lawsuit against Sun, alleging that Sun was negligent in not properly erecting and securing the grating. Williams's wife joined as a plaintiff and brought a loss of consortium claim. Sun filed this motion for summary judgment on July 14, 1993.
II
A motion for summary judgment will be granted only when after a most favorable reading of the record evidence to the opposing party there is no genuine issue of any material fact and the party filing the motion is entitled to judgment as a matter of law. See Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47; Civ.R. 56(C). A motion for summary judgment forces the party opposing the motion to produce evidence on any issue for which he bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus.
III
With respect to when a hiring party should be liable, the general rule is that a hiring party is not liable for injuries sustained by an employee of an independent contractor when the independent contractor is engaged to perform an inherently dangerous task. 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. An owner's duty to use ordinary care to maintain premises in a safe condition does not extend to any inherent hazard necessarily present because of the character of the work to be done. Schwartz v. Gen. Elec. Co. (1955), 163 Ohio St. 354, 56 O.O. 319, 126 N.E.2d 906, paragraph one of syllabus. In this case, the parties do not dispute that Williams was engaged in an inherently dangerous task when he was injured.
There is an exception to the general rule of nonliability:
"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.) Hirschbach v. Cincinnati Gas Elec. Co. (1983), 6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326, syllabus.
Maintaining a supervisory capacity over a subcontractor's work does not constitute actual participation in job operations, however. Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, 21 OBR 416, 488 N.E.2d 189. The duty under R.C. 4101.11 to provide a safe place of employment does not extend to inherent dangers when the injured person is an employee of an independent contractor. Eicher v. United States Steel Corp. (1987), 32 Ohio St.3d 248, 512 N.E.2d 1165.
Relying on law governing independent contractor liability, Sun contends it is not responsible for Williams's fall and resulting injuries and is entitled to summary judgment. Sun offered documents to show the following facts: Burdco took over exclusive possession and control of the polycase unit before the date of Williams's accident. Grace Affidavit, Paragraph 5; Ruiz Affidavit, Paragraph 6. A Sun operations supervisor first inspected the polycase unit and found it to be in a safe condition. All deckplates were properly positioned and secure. Grace Affidavit, Paragraph 4. Sun employees did not enter the polycase unit while Burdco had possession and control of it. Grace Affidavit, Paragraph 7.; Ruiz Affidavit, Paragraph 6; Richardson Deposition, at 16-17; Reese Deposition, at 27; Williams Deposition, at 36. Sun personnel did not direct Burdco employees in the removal of asbestos. Ruiz Affidavit, Paragraph 5; Williams Deposition, at 18-19.
Williams opposes the motion by maintaining that a question of fact exists as to who moved the steel decking and created the hazard that caused his injuries. He maintains that reasonable minds could conclude that Sun employees were the ones who removed the sturdy deck plating and replaced it with the less sturdy grating. Williams relies on his own affidavit and deposition and statement made by two Burdco co-workers for this proposition.
In Paragraph 7 of his affidavit Williams admits he did not see anyone remove the decking and replace it with grating but concludes nevertheless at Paragraph 10 that Sun employees "probably" did it. Burdco employee Ricky Richardson also testified at his deposition that it was "probably" Sun employees or a private contractor who removed the decking (Richardson Deposition, at 8). He also acknowledged he did not know for certain who did it. Id. at 9. Although Douglas Reese admitted he did not know whether Sun employees were ever in the polycase unit (Reese Deposition, at 12-14), he too concluded that Sun employees moved the decking, since it was not the responsibility of Burdco employees. Id. at 24-25.
The statements relied on by Williams are speculative and conclusory and do not meet the requirements of Civ.R. 56(E). They are insufficient to create a genuine issue of fact and do not satisfy Williams's burden to respond to Sun's motion with evidence. See Wing, supra. More than opinion testimony must be offered on a factual issue in response to a motion for summary judgment. See James H. Washington Ins. Agency v. Nationwide Mut. Ins. Co. (Apr. 8, 1993), Cuyahoga App. Nos. 62347 and 62392, unreported, 1993 WL 107803 ("bare allegations stated in conclusory fashion in an affidavit are insufficient standing alone to create genuine issues of fact"); Sperduti v. Bubuloo, Inc. (May 28, 1992), Cuyahoga App. Nos. 60626 and 61651, unreported, 1992 WL 114595 (speculation by appellant of what appellee's employees "must have seen" and what "was highly probable" regarding the assault on appellant was insufficient to meet appellant's burden under Wing); Essa v. Armstrong Foods, Inc. (May 17, 1991), Columbiana App. No. 90-C-59, unreported, 1991 WL 82991 (nonmovant came forward not with evidence of an unnatural accumulation of ice, but only with speculation of an unnatural accumulation).
Here, Williams has not produced any competent evidence that Sun was responsible for creating the hazard that caused his injury. Improper lay opinion testimony based upon speculation is insufficient to withstand Sun's motion. Sun is, therefore, entitled to summary judgment on Williams's complaint.
JUDGMENT ENTRY
It is ORDERED that the motion for summary judgment filed by defendant Sun Company, Inc. (R M) be GRANTED, and judgment is hereby entered in favor of defendant Sun Company, Inc. (R M) on plaintiffs Zettie and Irma Williams's complaint. Costs are assessed against plaintiffs.
Since Irma Williams's consortium claim is dependent on the viability of her husband's claim, Sun is entitled to summary judgment on the consortium claim as well.
This is a final appealable order.
Judgment accordingly.