Springsteel v. Steel Corp. , 2 Ohio App. 2d 353 ( 1963 )

I dissent to that part of the judgment of the majority which remands the cause for further proceedings because, in my opinion, the trial court erred to the prejudice of the defendant in overruling defendant's motion for judgment in its favor, or in the alternative, for a directed verdict in its favor made at the close of all the evidence, and as a consequence, this court ought to do what the trial court should have done and render final judgment for the defendant.

The A. S. Johnson Company, under the facts, was a business invitee on the defendant's premises for the purpose of digging a trench. The understanding between the A. S. Johnson Company and the defendant, however, was that the Johnson Company was to use only such part of defendant's premises as was necessary to do the work undertaken and that the Johnson Company, under no circumstances, was to contact the wires or the poles which were used for lighting the premises and which were very important facilities for night operations conducted by the defendant.

There can be no mistake over the fact that the Johnson Company understood that it was not to come in contact with or disturb the wires and poles when working on defendant's premises because Johnson, the president, was given instructions to that effect by the assistant safety engineer and the supervising project engineer when the premises were inspected by them two or three months before the commencmnt of the work. In addition, Johnson also attended a safety meeting where the same warning was given to him and on that occasion he signed a set of written safety rules, including No. 10 which read as follows:

"Keep away from all electric wires and cables. A representative of our maintenance department must be advised before work is started on or near power lines."

Moreover, at the time of the inspection tour with the assistant safety engineer and the supervisory project engineer, the question arose as to whether the light poles should be temporarily removed, and upon assurance by Johnson that his work could be done without interference with the wires or poles, the idea was abandoned.

Despite all of the safeguards employed by the defendant in warning the Johnson Company of the hazard of contacting the wires in any manner whatever, Rosul, the backhoe operator, on the day of the accident, brought the cables which run over the boom into contact with the wires, raised the wires as high as they would go without tension (the sag of the wires was five feet in the middle), and then dropped the boom in a fraction of a second to cast the dirt from the bucket. He did this ten to fifteen times to the same section of the wires until one of the poles to which the wires were attached broke. Plaintiff's expert testified that this action caused a whipping of the wires which transmitted a dynamic force of about 150-foot pounds to the pole which broke and that such a force accumulates on a pole that is deteriorating or corroding at the point of deterioration or corrosion. While said expert stated that such dynamic force, combined with the normal static force present in an erected pole, would not be sufficient to cause harm to an iron pole in good condition, it is crystal clear from all the circumstances in this case that had the pole not been subjected to this whipping action, the accident would not have taken place and the plaintiff would not have been injured.

The plaintiff, as an employee of the Johnson Company, had no different status than had the company for which he worked. Whatever status the Johnson Company had, he had, and whatever duties or obligations the defendant owed to the Johnson Company were likewise owed to him. The invitation to the Johnson Company was co-extensive with the use of so much of the defendant's premises as was reasonably necessary to operate the backhoe without interference with the wires of the lighting system. The whipping action on the wires caused by operator Rosul was not something incidental or accidental to the conductance of the work. It was "deliberate and intentional," as testified to by Rosul and was continuous and drastic for a period of hours. Such contacts consequently were a deliberate violation of the rules of safety solemnly acceded to by the Johnson Company and were anintentional creation of a peril which the Johnson Company had been specifically warned against.

It seems obvious to me, therefore, that contacting the wires in the manner described was not co-extensive with the defendant's invitation and exceeded the limits of the invitation. The defendant's duty to an invitee was to use ordinary care to provide a reasonably safe place for him to do his work. When an invitee carries on his work outside the limits of the invitation, contrary to the express instructions of the owner of the premises, the duty to exercise ordinary care to provide a reasonably safe place for him to work ceases, and the only obligation then resting upon the owner of the premises is to refrain from wanton and wilful injury to him.

In 38 American Jurisprudence 762, Negligence, Section 101, the following is stated:

"The duty owed by an owner or occupant of premises to an invitee for his safety is measured and limited by the nature of the invitation held out. His liability is only coextensive with the invitation; and to entitle a person to recover for injuries on the basis of a duty owed to him as an invitee, he must show that at the time of injury he was using the premises for a purpose contemplated by the invitation. If an invitation by a contractor to employees of a subcontractor to use a scaffold erected by him can be implied, it is restricted to such use as is reasonably necessary and is not extended to uses not contemplated or reasonably to be expected, though apparently convenient."

In the case of Pettyjohn Sons v. Basham, 126 Va. 72,100 S.E. 813, paragraph six of the syllabus reads:

"The duties of an occupant of land to an invitee are entirely different from his duties towards licensees or trespassers. The invitee comes by invitation, express or implied, and may reasonably expect to come with safety. The invitation, however, is rarely, if ever, unlimited, and especially when implied, but to the extent of the invitation the occupant owes to the invitee the duty of provision, preparation and lookout. He must use ordinary care to see that his premises are in a reasonably safe condition for the use of the invitee in the manner, and to the extent, that he has invited their use."

And in the case of Ryerson v. Bathgate, 67 N. J. Law 337,51 A. 708, it is stated in the syllabus:

"Where the owner or occupier of lands, by express invitation, induces a person to make use of a portion of the premises for an expressed purpose, his liability is confined within the limits of the invitation and does not extend to injuries received by the person invited while using the premises for a purpose not expressed and not authorized by the invitation."

Also, in the case of Gavin v. O'Connor, 99 N. J. Law 162,122 A. 842, paragraph one of the syllabus reads:

"The liability of the owner or occupier of premises who expressly or impliedly invites others to enter thereon is only co-extensive with his invitation; his duty of care is limited by that, and when the limits of the invitation are exceeded such duty ceases except as to abstaining from acts willfully injurious."

See Drake v. City of East Cleveland, 101 Ohio St. 111.

Moreover, even accepting the majority's theory that the Johnson Company was an invitee on the premises throughout these events and that the pole was corroded and that the defendant was negligent in its maintenance, nevertheless, in my opinion, the plaintiff has failed to establish a case against the defendant for the reason that under the undisputed facts, the defendant could not have reasonably foreseen or anticipated that its negligence would result in an accident caused by an act of the Johnson Company deliberately and intentionally violating defendant's specific instructions and written safety rules not to contact the wires. As a consequence, the negligence of the defendant constituted a remote rather than a proximate cause since the accident was primarily caused by the intervention of an efficient independent force breaking the causal connection of defendant's negligence.

It is stated in 39 Ohio Jurisprudence 2d 532, Negligence, Section 30, that:

"In contemplation of law, an injury that could not have been foreseen or reasonably anticipated as a probable result of an action in negligence is not actionable."

In Kelly v. Catholic Daughters of America, 19 Ohio Law Abs. 157, paragraph two of the headnotes reads:

"An owner of real estate is not bound to make it safe for any purpose for which he could not reasonably anticipate it would be used, or for use in a manner for which it was obviously never designed."

From the above it seems manifest to me that the plaintiff has totally failed to make out a case against this defendant under the facts and the law applicable thereto and that the defendant should not be required to withstand another trial with the facts and the law so patently on its side.