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Estep v. Reiter Automotive North America6/28/2002
upra.
. "A 'duty' is an obligation imposed by law on one person to act for the benefit of another person due to the relationship between them." Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 578, citing Prosser, Law of Torts (5th Ed.1984) 356, Section 53. Under Ohio law, a general contractor may be liable for the negligence of its subcontractor. Bohme, Inc. v. Sprint Internatl. Commications Corp. (1996), 115 Ohio App.3d 723, 733. The Supreme Court of Ohio has held:
. "Where danger to others is likely to attend the doing of certain work unless care is observed, the person having it to do is under a duty to see that it is done with reasonable care, and cannot, by the employment of an independent contractor, relieve himself from liability for injuries resulting to others from the negligence of the contractor or his servants." Richman Bros. v. Miller (1936), 131 Ohio St. 424, at paragraph one of the syllabus; Covington & Cincinnati Bridge Co. v. Steinbrock & Patrick (1899), 61 Ohio St. 215, at paragraph one of the syllabus.
. Whether a duty exists on the part of a particular defendant is a question of law for the court to decide. Mussivand v. David (1989), 45 Ohio St.3d 314, 318.
. In this case, Helm subcontracted with Lumm to construct the guard. There were no written plans or specifications for the guards that would show that Lumm only followed the instructions of Michael Scott. Rather, testimony was presented that employees from both Helm and Lumm consulted with Scott about the design, fabrication, and placement of the needed guards. Appellant provided expert testimony that the maker and installer of the guard should have known that it would not prevent access to the rollers. Thus, evidence was presented that, in undertaking to provide the guards, both Helm and Lumm owed a duty of ordinary care to appellant to construct and install an adequate guard or to warn Rieter that it would not perform as expected. Whether Helm and Lumm breached that duty of care by virtue of their knowledge, advice, and expertise in the designing and fabrication of the guard remains an issue of fact for the trier of fact. Likewise, whether appellant's injuries were proximately caused by the alleged inadequacy of the guard is also a disputed issue of fact. Therefore, we conclude that summary judgment is not appropriate as to the negligence claims against Helm and Lumm.
. Accordingly, the two assignments of error set forth by cross-appellants Helm and Lumm are not well taken.
. The judgment of the Lucas County Court of Common Pleas is affirmed. Court costs of this appeal are assessed and divided equally among appellant and cross-appellants.
Judgment affirmed.
Mark L. Pietrykowski, P.J., and Richard W. Knepper, J., concur.
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