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The Ups and Downs in Ladder Litigation: Inherently Dangerous Activity, Open and Obvious, and the Active Participation Doctrine

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By Timothy B. Spille

October 17, 2018

On September 26, 2018, Ohio’s First District Court of Appeals joined the Fourth, Fifth, and Eighth Appellate Districts, holding that climbing and descending a ladder is an inherently dangerous activity in Patterson, et al. v. Adleta, Inc., 1st Dist. Hamilton Slip Opinion Nos. C-180015, C-18002.  Specifically, the Court held that the open and obvious defense is a bar to a claim where someone was using a ladder in a method otherwise than its intended purpose. The First District also held that none of the three exceptions to this general rule applied to create negligence exposure on the landowner.

In Patterson, the plaintiff was a temporary employee of a fuel delivery company that refilled its various customers’ oil and gas tanks on their property. When delivering fuel to the defendant’s business, plaintiff was tasked with refilling an above-ground split fuel tank (the “Split Tank”), which was divided in the middle and had separate ports on its top where gas and diesel fuel is loaded. The Split Tank was mounted on a concrete pad and located in a gravel parking lot. He had made two previous deliveries to the Split Tank prior to his injury.

In order to access the fuel ports at the top of the tank, plaintiff leaned an A-frame step ladder, in the closed position, against the Split Tank. Plaintiff placed the ladder in a position that he felt was safe, without input from others, before he began to climb it. He testified in his deposition that as he began to climb, the base of the ladder shifted in the gravel. Plaintiff also testified that he was familiar with A-frame ladders and had used them regularly in previous employment. Plaintiff climbed about halfway up the ladder when the base of the ladder shifted in the gravel and he fell. His co-worker and trainer testified in his deposition that he had no personal knowledge of how or why plaintiff fell from the ladder but noted that the ladder was still standing against the Split Tank after he fell. After plaintiff was taken to the hospital, the co-worker examined the ladder, positioned it where he believed it was safe to climb, and used it to complete the fuel delivery without incident.

Plaintiff and his wife sued the defendant for negligence and loss of consortium. They “[…] alleged in their complaint that [defendant] negligently failed to provide [plaintiff] with a safe means to access the intake port of the Split Tank on [defendant’] property.” Id., ¶ 7. Defendant moved for summary judgment, “[…] arguing that because plaintiff had been engaged in an inherently dangerous activity when he was injured—climbing a ladder to deliver fuel into the Split Tank—it was absolved of any duty of care it owed.” Id.

Defendant conceded that plaintiff was a business invitee. See id., ¶ 8. Typically, landowners owe business invitees a duty of care when the individual is on their property providing a service, e.g., materialman or independent contractor. Relying on Wellman v. East Ohio Gas Co., 160 Ohio St. 103, 108, 113 N.E.2d 629 (1953), defendant argued no duty of care was owed in the context where the claimant is engaged in an inherently dangerous activity, which is precisely what plaintiff was doing at the time of this injury, e.g., erecting, placing, and climbing a ladder. Id., ¶ 9.

The Wellman line of cases hold that in negligence actions involving inherently dangerous work, the owner of the premises does not owe a duty to an independent contractor or its employees. Stated differently, “[t]he business invitee is presumed to know and appreciate that there is a danger surrounding the performance of the work it has undertaken.” Id. The First District agreed, insightfully noting that “[b]ecause there are dangers inherent in climbing a ladder and because there was no latent or hidden defect in the ladder that only [defendant] was or should have been aware of, we hold that [plaintiff] has not demonstrated a genuine issue of material fact regarding whether [defendant] owed him a duty of care with respect to the work he had undertaken.” Id.

Wellman acknowledges that an exception to the general rule of “[…] nonliability in negligence cases involving inherently dangerous work exists where the premises owner had actively participated in the work being performed.” See id., ¶ 15. Called the “active participation” doctrine, Ohio courts hold that a duty of care is imposed on the property owner or landowner to an independent contractor involved in an inherently dangerous activity on the property when the owner: (1) directs the activity resulting in the injury; (2) gives or denies permission for the critical acts that led to the independent contractor’s injury; or (3) retains or exercises control over a critical variable in the workplace that caused the injury. See id., citing McPherson v. Total Car Express, Inc., 2015-Ohio-5251, 54 N.E.3d 713, ¶ 20 (5th Dist.)

Plaintiff argued the active participation doctrine applied, contending “[…] that his injury resulted from [defendant] providing an inappropriate ladder, i.e., an A-frame step ladder, for him to use to deliver fuel to the Split Tank […],” not because the ladder shifted or due to him losing his balance. Id., ¶ 13. The First District astutely noted, however, that using an A-frame ladder in a manner it was not intended – a closed position – “[…] was not a hidden or latent defect in the ladder.” Id. In holding the active participation doctrine was inapplicable, the First District wrote “[…] it was open and obvious that using a ladder in a manner in which it is not intended is dangerous.” Id., ¶ 13, 16-17.

Significantly, Patterson also marks the first occasion where there First District had the opportunity to address whether using a ladder was an inherently dangerous activity.

If you have any questions with respect to this specific decision, or any other issue of premises liability, please call any member of Reminger’s practice groups, Retail, Hospitality and Entertainment Facilities or General Liability/Excess Surplus Risks.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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