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Dirksing v. Blue Chip Architectural Products11/7/1994
---, 114 S.Ct. 1553, 128 L.Ed.2d 202; Betzner v. Navistar Internatl. Transp. Corp. (1991), 77 Ohio App.3d 611, 603 N.E.2d 256; Curless v. Lathrop Co. (1989), 65 Ohio App.3d 377, 583 N.E.2d 1367.
Appellant argues that the present case differs from Cafferkey in one respect: Messer has an extensive safety program. In Cafferkey, the general contractor's safety program was a "one-page list of general safety requirements," which was "nothing more than a handy, brief reference sheet to remind subcontractors about the fundamental `dos and don'ts' at the construction site." Id. at 113, 21 OBR at 418-419, 488 N.E.2d at 192. Appellant argues that because Messer undertook a comprehensive safety program, a jury could have found it exercised sufficient control over the operation to establish liability.
Appellant relies upon Whitelock v. Cleveland Clinic Foundation (Apr. 2, 1992), Cuyahoga App. Nos. 60084 and 60610, unreported, 1992 WL 67624 ("Whitelock I"), in which Gilbane Building Co. was the project manager for construction of a clinic building. One of its subcontractor's employees was injured on the job . The employee sued Gilbane and a jury found in the employee's favor. On appeal, Gilbane argued that the trial court erred in denying its motion for a directesverdict, relying on Hirschbach and Cafferkey. The court of appeals concluded that Gilbane was not entitled to judgment as a matter of law since that case was distinguishable from Cafferkey. It stated: "In the instant case, Gilbane wrote a detailed safety program, was involved in inspections to uncover unsafe conditions, and had the authority to actually dictate the manner in which a task was performed." Id. at 4.
The court of appeals certified the case to the Supreme Court. In Whitelock v. Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594, 613 N.E.2d 1032 ("Whitelock II"), the Supreme Court dismissed the case as improperly certified. The court did, however, briefly discuss the merits of the case. It noted that the court of appeals found that Gilbane had a detailed safety program and the ability to actually dictate the manner in which a task was performed. The Supreme Court stated: "In so finding, the court of appeals distinguished, on its facts, Cafferkey from the case at bar. On this factual question we will not substitute our judgment for the judgment of the trial court, even if our judgment might differ from that of the court of appeals." Whitelock II at 598, 613 N.E.2d at 1034-1035.
We do not find the Whitelock cases to be persuasive since in the present case we do not find Cafferkey to be distinguishable. Though Messer did have an extensive safety program, the evidence does not show that it had the ability to dictate the manner in which the skylights were installed. Further, we find the premise behind Whitelock I to be questionable. In Whitelock II, the Supreme Court indicated that it was bound by a factual finding with which it did not agree.
Appellant sets forth numerous other theories under which he argues that Messer could be found liable. However, these theories rely on law that is inapplicable or law from other states, and they are clearly attempts to circumvent Cafferkey. After construing the evidence most strongly in appellant's favor, we conclude that reasonable minds could reach but one conclusion--that Messer did not owe Dirksing a duty of care. Accordingly, the trial court did not err in granting summary judgment in favor of Messer, and appellant's third assignment of error is overruled.
In his sixth assignment of error, appellant states that the trial court erred in concluding that Monk was a "loaned servant" working for BCAP on the Champion project and t
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