Walker v. Mid-States Terminal, Inc. , 17 Ohio App. 3d 19 ( 1984 )

I concur with the second paragraph of the syllabus and agree that an issue of fact exists as to whether Stout committed an intentional tort. As to the first and third paragraphs of the syllabus, I respectfully dissent.

In the first paragraph of the syllabus, the majority holds that the owner of property who engages the services of an independent contractor may be held liable under R.C. 4101.01 et seq., if the owner has retained the right to custody and control of the premises. Typically, the owner of property who engages the services of an independent contractor will retain the right of custody and control over the premises as it is, after all, his property and he is interested in seeing the independent contractor's work progress to completion. I am of the opinion that the holding of the majority will, in effect, tend to make such owners insurers of the safety of the employees of independent contractors.

I would follow the decision in Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, [51 O.O. 27], wherein the court held as follows:

"1. Where an independent contractor undertakes to do work for another in the very doing of which there are elements of real or potential danger and one of such contractor's employees is injured as an incident to the performance of the work, no liability for such injury ordinarily attaches to the one who engaged the services of the independent contractor.

"2. One who engages an independent contractor to do work for him ordinarily owes no duty of protection to the employees of such contractor, in connection with the execution of the work, who proceeds therewith knowing and appreciating that there is a condition of danger surrounding its performance."

See, also, Millhouse v. General Tire Rubber Co. (1983),9 Ohio App.3d 203.

The holding in Wellman appears to be controlling in the instant case. Further, the record in the case at bar indicates that Mid-States did not actively participate or supervise the activities of Stout, even though a contract between the parties permitted Mid-States to do so, but merely checked on the progress of the construction in order to determine when Stout was entitled to compensation under the construction contract. Accordingly, I would find Hirschbach v. Cincinnati Gas Elec. Co. (1983),6 Ohio St.3d 206, distinguishable from the instant case because the holding in Hirschbach is expressly limited to a situation where the employer actually participated in the job operation.

In the third paragraph of the syllabus, the majority enters judgment, as a matter of law, in favor of appellants upon finding that Stout occupied a dual capacity with regard to appellants. I dissent, as I find that, at the very least, an issue of fact exists as to whether such a dual capacity existed.

The case law fails to support the majority's holding that where an employer manufactures a piece of equipment solely for use by its employees it will be held liable under the dual capacity doctrine if it manufactures the general class of equipment for sale to the public. In Knous v. Ridge Machine Co. (1979), 64 Ohio App.2d 251 [18 O.O.3d 220], the court held as follows:

"1. An employer is not considered to be engaged in the sale of die casting machines to the general public where the machines were manufactured by the employer for use in the production of die castings by the employer in the principal course of the employer's business and where a limited number of said machines were supplied to other corporate entities under agreements limiting the use and resale of the machines.

"2. An employer who manufactures or designs and assembles a machine for the sole use of its own employees in its own production operations is not subject to a manufacturer's liability when his own employee is injured while repairing or using that machine.

"3. If the hazard arose out of the status of the employee during his relationship to his employer, rather than a hazard to which the employee was subjected as a member of the general public, the dual capacity doctrine does not apply. On the other hand, if the hazard to the employee arose out of his status as a member of the general public, the fact that he, incidentally, is an employee of the one creating the hazard should not bar the application of the dual capacity doctrine.

"4. Where an employee is injured in repairing a die casting machine, manufactured by the employer, and where the manufacturing of the machine is auxiliary to the principal business of producing die castings, the injuries arose out of the employer-employee relationship, rather than from a user-manufacturer relationship."

In Simpkins v. Delco Moraine Div. (1981), 3 Ohio App.3d 275, the court held as follows in paragraph one of the syllabus:

"1. Where an employee brings an action against his employer for injuries sustained in his employment as the result of an allegedly defective hoist, which was neither designed nor manufactured for use by the public but was intended solely for use by the company's employees, the dual capacity doctrine is not applicable and the employee's remedy against his employer is limited exclusively to workers' compensation benefits."

The record in the instant case indicates that the hoist involved in the accident was not designed or manufactured for sale to the general public but was fabricated solely for use by Stout's employees. The record indicates that Stout did manufacture and sell one-man service elevators which were not used in construction but were permanently installed in grain silos. Under these facts, I find that Knous, supra, and Simpkins,supra, preclude application of the dual capacity doctrine or, at least, create an issue of fact as to whether the hoist involved herein was manufactured and sold to the general public. Accordingly, I dissent from the decision of the majority in this regard.

Coming now to the specific assignments of alleged error, and being cognizant of the fact that this case comes to us on summary judgments from the trial court, I find the appellants' first assignment of error not well-taken, and the second assignment of error well-taken, for the reasons set forth above.