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Dirksing v. Blue Chip Architectural Products11/7/1994
stantially certain to occur. Therefore, summary judgment is improper. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47-48. Appellant's first assignment of error is sustained.
In his third assignment of error, appellant states that the trial court erred in granting summary judgment in favor of Messer. Appellant argues that Messer actively participated in and exercised sufficient control over the subcontractor's work to establish liability. We find this assignment of error is not well taken.
In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326, the Ohio Supreme Court stated in the syllabus:
"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."
Subsequently, the Supreme Court decided Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, 21 OBR 416, 488 N.E.2d 189, holding in the syllabus that " general contractor who has not actively participated in the subcontractor's work, does not, merely by virtue of its supervisory capacity, owe a duty of care to employees of the subcontractor who are injured while engaged in inherently dangerous work."
In that case, Turner was the general contractor on a construction project. Turner subcontracted with Millgard Corp. to drill and install the caisson foundations necessary to support the structure. The decedent, a Millgard employee, died due to injuries he received in an explosion caused by Millgard's drilling. Turner's assistant superintendent was nearby when Millgard employees made thsdecisions which ultimately led to the explosion. However, he was not consulted about any of these decisions and, according to Millgard's project superintendent, "had no say to anything." The trial court granted summary judgment in favor of Turner and the Supreme Court affirmed. The Supreme Court specifically stated that neither Turner's general concern for safety nor its contractual right to monitor and coordinate the activities of all subcontractors was the kind of active participation legally required to create a duty of care to the subcontractors' employees. Id. at 112-113, 21 OBR at 418-419, 488 N.E.2d at 191-192.
In the present case, the facts are similar to those in Cafferkey. There was no evidence that Messer actively participated in the installation of the skylights. Messer did not control how the subcontractors performed their work; its role was supervisory. If Messer saw a subcontractor's employee committing a safety violation, it reserved the right to insist the subcontractor correct that violation, but Messer stayed out of the subcontractor's daily operations. For example, once Messer determined that BCAP's employees would be using fall protection, it did not interfere in the work. Appellant relies heavily on evidence that Messer had the opportunity to rent nets used by the subcontractor working in the atrium prior to BCAP and knew that there were no nets after that subcontractor removed them. However, Messer was not under a duty to provide nets, the offer was speculative, and BCAP had assured Messer that its employees would use safety belts. Since Messer did not actively participate in the subcontractor's work, it did not owe the subcontractor's employees a duty of care. Accord Gross v. Western-Southern Life Ins. Co. (1993), 85 Ohio App.3d 662, 621 N.E.2d 412, certiorari denied (1994), --- U.S.
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