Thomas Wolf, Esq.

Ohio has long held that an independent contractor who undertakes a job that involves real or potential danger is owed no duty by the owners.  The only exception to the rule is where the owner actively participates in the project involving the independent contractor and/or controls a critical variable in the work environment. 

In Cracraft v. The Dayton Power & Light Company, 2016-Ohio-3272, the Second District Court of Appeals affirmed a summary judgment in favor of defendant for claims brought by Cracraft, an independent contractor. 

Cracraft was injured when he slipped off a ladder while attempting to access fans atop one of the structures.  Cracraft had previously accessed the building through a ladder on the opposite side due to construction.  On the day in question, the ladder on the opposite side of the structure was available, and he used it for the first time during the job.  At one point, there were pipes close to the ladder, with clamps sticking out.  Cracraft alleged that the pipes and the clamps prevented him from having sure footing on the ladder and contributed to his fall. 

DP&L filed for summary judgment asserting that they owed no duty to an independent contractor.  The court agreed, citing Szotak v. Moraine Country Club, Inc., 172 Ohio App. 3d 34, 2007-Ohio-2974, 872 N.E. 2d 1270, a Second District case that cited the Ohio Supreme Court case of Wellman v. East Ohio Gas Company, 160 Ohio St. 103 113 N.E. 2d 629 (1953) for the proposition that no duty is owned to an independent contractor.  The court reviewed the exceptions to the general rule and found that DP&L did not actively participate or control a critical variable. 

Cracraft asserted that DP&L actively participated due to the restrictions on the independent contractors.  Cracraft alleged that DP&L limited access for security reasons, and through safety meetings and requirements, limited the access to the property.  The court rejected those arguments. 

Cracraft also contended that DP&L exercised control over a critical variable in the work, the ladder in question.  The court also rejected this argument, noting that the owner must provide access to the area where the work is performed.  In this case, there was no dispute that access to the fan would be obtained through the use of the ladders in question. 

Cracraft next argued that the purchase order and the incorporated “terms and conditions” constituted active participation and custody and control over the project.  Specifically, the purchase order required Cracraft’s employer to confirm its work plans at the cite with DP&L’s contact person prior to the work. 

The court rejected this argument, noting that active participation requires more than merely exercising a general supervisory role over the project.  The court held that general control over work activities or the work site of independent contractors is insufficient to demonstrate active participation, citing the Supreme Court case of Bond v. Howard Corp., 72 Ohio St 3d 332, 650 N.E. 2d 416 (1995).  Further, the court determined that having supervisors on a job site does not equate to active participation.  The court concluded by reaffirming the rule that an independent contractor knows the risks inherent with the job before beginning any activity.  In this case, there is no evidence that DP&L knew of any risk that would not be anticipated by a typical user of the ladder.  The court then affirmed the summary judgment. 

The Cracraft case reaffirms the long standing law in Ohio concerning premises owners and independent contractors.  For a premises owner to avoid liability to an independent contractor, the premises owner cannot take an active role in the work.  If an independent contractor is hired, the details of the job can be set forth in a purchase order and/or plans and specifications, but the actual work and plan for completing the work must be left to the independent contractor. 

If you have any questions regarding premise and/or construction liability or wish a copy of the opinion, please contact one of our Construction Liability Practice Group members.

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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