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Tomplin v. National City Corp.12/10/2004
endant-Appellee Alex Downie, Jr. and Sons Company."
{ } Appellee Downie was performing the interior renovations at the Bank. The parties do not dispute that Downie was employed as an independent contractor. Unlike the Bank's duty pursuant to the open and obvious doctrine, Downie, as an independent contractor, has no property interest in the premises and was conducting activity on the premises with the consent of the owner. Therefore, as an independent contractor, Downie is not relieved of liability under the open and obvious doctrine. In other words, the open and obvious doctrine that relieves an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property does not apply to an independent contractor who creates a dangerous condition on the property.
{ } An independent contractor owes a general duty of care towards a business invitee. In other words, Downie had a duty to warn appellant of any foreseeable risks of harm that Downie created on the premises. An " njury is foreseeable if a defendant knew or should have known that its act was likely to result in harm."
{ } In the instant case, Downie testified that he generally places carpet runners over transitional areas of flooring in order to minimize the gradation difference. Thus, as a safety measure, the carpet runner was placed over the area where the tile met the underfloor.
{ } We have concluded under the first assignment of error that the record does not support a finding that the flooring defect presented a foreseeable risk of harm as it was, as a matter of law, trivial and insubstantial. Therefore, because the harm was insubstantial and not foreseeable, Downie did not breach its general duty of care toward appellant and the trial court did not err in entering summary judgment in favor of Downie.
{ } Appellant's second assignment of error is without merit.
{ } Based on the foregoing, appellant's assignments of error are without merit. The judgment of the Trumbull County Court of Common Pleas is affirmed.
DONALD R. FORD, P.J., CYNTHIA WESTCOTT RICE, J., concur.
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