DECISIONS AND JUDGMENT ENTRYMary Marshall, Administratrix of the Estate of Rodney Allen Marshall, brought suit against Kokosing Construction Company ("Kokosing")and Columbus Southern Power Company ("CSPC"), for the wrongful death of her husband, Rodney. The Meigs County Court of Common Pleas granted Kokosing and CSPC summary judgment, from which Marshall appeals. Marshall asserts that the trial court erred in granting Kokosing summary judgment though Rodney worked as an independent contractor, because Kokosing actually participated in Rodney's job performance and breached its duty to Rodney by failing to exercise ordinary care. We disagree, because Kokosing did not give permission for the critical act that led to Rodney's death. Marshall also asserts that the trial court erred in granting summary judgment in favor of CSPC because a genuine issue of material fact exists as to whether CSPC breached the requisite standard of care to Rodney. We disagree, because CSPC had no duty to protect Rodney from harm because his injury was unforeseeable. Accordingly, we affirm the judgment of the trial court.

I.In 1995, the state contracted with Kokosing to extend State Route 7 approximately two miles beginning at Meigs County High School. Kokosing ordered some of the sand and gravel ("aggregate") for construction from Owl Creek. In turn, Owl Creek contracted with independent truck drivers, including Rodney's trucking firm, A L Trucking Firm, to haul the aggregate to the construction site.

During April 1995, Rodney delivered numerous loads of aggregate to Kokosing's construction site. On April 20, 1995, Kokosing placed an order with Owl Creek for aggregate to be delivered the next day to the construction site by the school on the west side of the stockpile. Owl Creek completed an order form and contacted Rodney with the dumping information.

The next day, Rodney dumped a load of aggregate at the Kokosing construction site on the west side of the stockpile. While dumping the aggregate, Rodney's truck bed came into contact with electrical power lines, killing him. Marshall, Rodney's widow and administratrix of his estate, filed a wrongful death action.¹ Kokosing and CSPC filed for summary judgment.

Kokosing argued that Rodney worked as an independent contractor in construction, an inherently dangerous activity. Kokosing asserted that it neither directed Rodney to dump the aggregate under the power lines, nor gave him permission to do so. Therefore, Kokosing argued that it did not actively participate in Rodney's work. As such, Kokosing owed Rodney no duty of care and could not be held liable for his death. In its motion for summary judgment, CSPC argued that as Kokosing did not actively participate in Rodney's work, he was not required to work under the power lines. Therefore CSPC argued that it owed Rodney no duty of care.

In support of its motion for summary judgment, Kokosing attached the affidavit of Joseph Sheets, Kokosing's project superintendent, who averred that Kokosing established specific locations for the sand deliveries on the west end of the project. Sheets averred that during its ordinary course of business, Kokosing instructed all haulers to report to it prior to dumping for specific delivery locations. If the delivery required dumping in a dangerous area, Kokosing provided a "spotter" to the haulers to insure that they dumped the aggregate safely.

Rocky Allen, Rodney's employee, stated in his deposition that on the morning of Rodney's death, Rodney told Allen the general location for delivery, but told him that they would not dump at the site the Kokosing employees usually directed because Rodney feared that the muddy road conditions would harm his trucks. Rodney told Allen that he should dump where Rodney instructed.

Rodney filled his truck and proceeded to the construction site. Sheets averred that Rodney never reported to Kokosing for the specific location to dump the aggregate. When Allen arrived at the construction site fifteen minutes later, he found Rodney's truck on asphalt with the truck bed touching the power lines. Barricades that would have blocked Rodney from accessing the location had been moved and no Kokosing employees were in the area. Sheets averred that he believed Rodney moved the barricades, without Kokosing's permission or supervision, in order to dump the sand from the asphalt.

The trial court granted Kokosing's and CSPC's motions for summary judgment. Marshall appeals the judgment of the trial court, asserting the following assignment of error for our review:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF BOTH DEFENDANTS BECAUSE (1) THERE EXIST GENUINE ISSUES OF MATERIAL FACT, AND (2) REASONABLE MINDS CAN DIFFER ON THE OUTCOME OF THIS CASE.

II.Appellate review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38. "In reviewing the propriety of summary judgment, an appellate court independently reviews the record to determine if summary judgment is appropriate. Accordingly, we afford no deference to the trial court's decision in answering that legal question."Morehead v. Conley, 75 Ohio App.3d at 411-12. See, also, Schwartzv. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809.

Summary judgment is appropriate when the following factors have been established: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed in his or her favor. Civ.R. 56(A). See Bostic v. Connor (1988), 37 Ohio St.3d 144,146; Harless v. Willis Day Warehouse Co. (1978),54 Ohio St.2d 64, 66; Morehead v. Conley (1991), 75 Ohio App.3d 409,411.

The burden of showing that no genuine issue of material fact exists falls upon the party requesting summary judgment. Dresherv. Burt (1996), 75 Ohio St.3d 280, 294, citing Mitsefff v.Wheeler (1988), 38 Ohio St.3d 112, 115. The moving party bears this burden even for issues that the non-moving party may have the burden of proving at trial. Id. "However, once a movant has supported his motion with appropriate evidentiary materials, the nonmoving party may not rely upon the allegations and/or denials in his pleading. * * * He must present evidentiary materials showing that a material issue of fact does exist." Morehead v.Conley, 75 Ohio App.3d at 413.

A.Marshall asserts that several issues of material fact exist for trial. However, our review of the record and the briefs lead us to conclude that Marshall's numerous issues are ancillary to the threshold question of whether Kokosing actively participated in Rodney's work.

Marshall asserts that by ordering Rodney to dump the aggregate at the west end of the stockpile at the construction site, Kokosing directed Rodney in the critical act which led to his death. Therefore, Marshall argues that she presented evidentiary materials to create a genuine issue of material fact as to whether Kokosing actively participated in Rodney's work and whether Kokosing breached its duty of ordinary care.

Kokosing argues that Marshall provided no evidence that Kokosing controlled the sole authority to require Rodney to dump the sand underneath the electrical wires. Rather, Kokosing asserts that Rodney acted within his own discretion in choosing a site' to dump the sand. Thus, Kokosing contends that it did not owe Rodney any duty of care.

Generally, "where an independent contractor undertakes to do work for a [principal] in the very doing of which there are elements of danger, no liability ordinarily attaches to the [principal] who engaged the services of the independent contractor." Bond v. Howard Corporation (1995), 72 Ohio St.3d 332,334 quoting Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, paragraph one of the syllabus. A general contractor who has not actively participated in the subcontractor's work, does not, merely by virtue of its supervisory capacity, owe a duty of care to the employees of the subcontractor who are injured while engaged in inherently dangerous work. Cafferkey v. Turner Constr.Co. (1986), 21 Ohio St.3d 110, syllabus. If, however, the principal actually participates in the job operation performed by the independent contractor and does not eliminate a hazard by failing to exercise ordinary care, the principal can be held responsible for the injury or death of an employee of the independent contractor. Hirschbach v. Cincinnati Gas Elec. Co. (1983), 6 Ohio St.3d 206, 207-208. "Actual participation" means that the general contractor: (1) directed the activity which resulted in the injury and/or (2) gave or denied permission for the critical acts that led to the injury to the employee of the independent contractor. Bona v. Howard Corp., supra, at syllabus.

Here, we find no evidence to create a genuine issue of material fact as to whether Kokosing directed Rodney in the critical act that led to his death, dumping the aggregate under activated power lines. Kokosing presented evidence that during the course of its business, it gave subcontractors general dumping instructions prior to their arrival to the construction site. After arriving, Kokosing employees would give specific dumping instructions and provide safety "spotters" to insure safety if the dumping took place under dangerous conditions.

While evidence exists to suggest that prior to arriving at the construction site, Rodney knew to dump at the west end of the stockpile, Marshall presented no evidence that Kokosing specifically directed Rodney to dump the sand under the power lines. Indeed, the record indicates that Rodney acted within his own discretion to choose a dumping site. Sheets averred that Rodney did not report for specific dumping instructions on the morning of the accident. Allen testified that Rodney stated that he would not dump the sand where Kokosing usually specified because he feared that the muddy road conditions would harm his truck. To reach the dump site under the power lines, Rodney had to move barricades erected by Kokosing. Finally, contrary to Kokosing's ordinary business practices, no Kokosing employees were near the scene of the accident, to supervise Rodney or to "spot" him during a dangerous dump.

Marshall produced no evidence to refute that the "critical act" that led to Rodney's death was his choice to dump the aggregate from the asphalt under the power lines. Rather, the evidence shows that Rodney himself made the decision to dump from under the power lines instead of from some other location at the west end of the school. Kokosing never directed Rodney to dump the sand specifically under the power lines; it only generally directed Rodney to dump the sand at the west side of the project. Rodney alone possessed the ability to prevent his death by dumping the sand away from the power lines.

After reviewing the evidence, we do not believe that Kokosing's general supervisory direction that Rodney dump the aggregate at the west end of the lot provided the sole act that led to Rodney dumping the aggregate under the power lines. Rodney could have dumped the aggregate at the stockpile, one hundred and twenty five feet from the power lines, or at another location on the west side of the project away from the power lines. Furthermore, the record shows that Rodney was familiar with the danger posed by power lines, had visited the construction site numerous times, and had exited his truck prior to dumping the aggregate in the past, which indicates he was aware, or should have been aware of the danger of electrocution. Even when considered in the light most favorable to Marshall, the record does not support her contention that reasonable minds could conclude that Kokosing's directions to dump the sand at the west end of the project was the "critical act" that led to Rodney's death. Rodney's own negligent operation of the dump truck, resulting in contact with the electrical wires, caused his death. As such, Kokosing owed no duty of care to Rodney as an independent contractor. Therefore, we find that the trial court did not err in granting Kokosing summary judgment.

B.Marshall also argues that the trial court erred by entering summary judgment in favor of CSPC. Marshall contends that a genuine issue of material fact exists as to whether CSPC exercised the highest degree of care consistent with its operation in the construction, maintenance, and inspection of wires and poles.

CSPC maintains that whether it breached the requisite standard of care is irrelevant because CSPC owed Rodney no legal duty. Specifically, CSPC argues that, as Rodney was not required to dump the sand underneath the power lines, his injury was unforeseeable and therefore, the law imparts no duty on CSPC.

To withstand summary judgment, Marshall must prove all of the elements of negligence, including existence of a duty, breach of duty, and injury resulting proximately therefrom. See Amburgey v.Dayton Power Light Co. (May 15, 1984), Montgomery App. No. CA 8248, unreported. A power company must, in the construction, maintenance, and inspection of its line equipment, act to avoid causing injury to another if and when such injury is one which might be reasonably anticipated. Id. A power company may reasonably anticipate injury to persons required to work underneath power lines. Id. (Emphasis added.)

Here, we have already determined that Rodney presented no evidence to create a genuine issue of material fact as to whether Kokosing directed Rodney to dump the sand directly under the power lines. As no genuine issue exists as to whether Rodney was required to dump the sand under the power lines, we also find no genuine issue of material fact as to whether Rodney's injury was foreseeable to CSPC. Therefore, we find, as a matter of law that the trial court did not err in granting CSPC summary judgment. Accordingly, we overrule Marshall's only assignment of error.

JUDGMENT AFFIRMED.

¹ Marshall joined, but later voluntarily dismissed claims against Owl Creek and Floyd S. Pike Electrical Contractor, Inc., pursuant to Civ.R. 41.

I must respectfully dissent in part from the majority opinion of my colleagues. While I agree that summary judgment was proper as to defendant Columbus Southern Power Company [hereinafterCSPC], I must disagree with this position as to defendant Kokosing Construction Co., Inc. [hereinafter Kokosing]. Material issues of fact exist which preclude a grant of summary judgment in favor of Kokosing by the court below.

Concurring as to Columbus Southern Power CompanyI concur in that portion of the majority's Judgment and Opinion, which affirms the grant of summary judgment to CSPC. The evidence and testimony establish that CSPC did not actively participate in the construction of the new highway, relying instead on their contractor, Floyd Pike Electric, to move poles and power lines out of the path of the new road. The electric wires in question met applicable standards for high-voltage service wires stretched across an open highway. One accident witness recalls other trucks and trailers parked on this paved stub of Ohio Route 7 before construction began. While Floyd Pike Electric worked on these lines about a month before the accident, neither its crew nor the CSPC project supervisor took note of any construction materials beneath the lines at that time.

Another CSPC supervisor, whose role involved the setting of timetables, was in contact with Kokosing. This supervisor testified that normal practice was to mark power lines if requested by a contractor but that Kokosing did not request any hazard flags before the accident date. Hence, as the majority notes, the duty owed by CSPC to Marshall was limited. "Foresight, not retrospect, is the standard of diligence." Hetrick v.Marion-Reserve Power Co. (1943), 141 Ohio St. 347, 355,48 N.E.2d 103, 108. Since these lines were well above normal traffic paths, it was not foreseeable to CSPC that Kokosing would create a supply dump underneath these wires or that Marshall would raise his truck bed up into the wires. Therefore, CSPC violated no duty it may have owed Marshall, and summary judgment in its favor was proper and appropriate.

Dissenting as to Kokosing Construction Co., Inc.However, I must disagree and, therefore, dissent from the remaining part of the Judgment and Opinion that upholds summary judgment in favor of Kokosing. The majority relies upon the line of cases that may be generally characterized as the "hole in floor" cases, e.g. Bond (cited by the majority), and Michaels v.Ford Motor Co. (1995), 72 Ohio St.3d 475, 478, 650 N.E.2d 1352,1355. In such cases, unless the general contractor participates in the work, the employee of a subcontractor is held to be aware of the normal hazards of a construction job as well as specific hazards of that subcontractor's specialty. See Cafferkey, cited by the majority.

The majority, however, fails to address an important step in the analysis of the facts in the case at bar. In the cases cited above, the hazard was open and obvious: in Bond and Michaels, holes in the floor at a construction site; in Cafferkey, natural methane seeping into a cofferdam where a welding torch was in use; and in Wellman (also cited by the majority), work around high-pressure natural gas lines. The question of whether these power lines were an "open and obvious" hazard is a material question of fact and, therefore, a question for the jury. See Judge Kennedy's dissent in Burnep v. Labmark, Inc. (June 17, 1999), Franklin App. No. 98AP-962, unreported.

Were these power lines an "open and obvious" hazard? The testimony of a number of witnesses indicates that the morning of April 21, 1995, was dark and stormy. The accident occurred at approximately 8:00 a.m., about an hour and seventeen minutes after sunrise.¹ Kokosing's supervisor testified in his deposition that he sent the earth-moving crew home at 7:00 a.m. because of the wet weather.

The majority concludes that Marshall was at the wrong location when he dumped his load of sand. However, the testimony of the supervisor of the quarry that supplied the load of sand, Roy Bankes, indicates that Kokosing directed Marshall to dump at the "West End of stockpile by the school." The numerous photos submitted by the parties indicate that the Kokosing stockpile was only a few feet from where Marshall attempted to dump his load. Indeed, the CSPC employees who arrived on the scene just after the accident, Ernie Sissons and Clarence Robson, noticed adifferent pile of sand alongside Marshall's burned-out truck. This second pile of sand had obviously been dumped earlier by another, unknown person, because it had been beaten down by the falling rain. These CSPC employees also noticed piles of black plastic culvert and other materials in the same area. Kokosing's supervisor, Joe Sheets, conceded that these materials were in the same area that Marshall dumped his load of sand.

A second point is that Rocky Allen, Marshall's employee, testified that every other time they had delivered loads to the site, employees of Kokosing had directed them to where the loads would be dumped. This was the first time that they used this particular stockpile location. Joe Sheets, the Kokosing supervisor, testified that the company would use spotters if the trucks might encounter some kind of hazard. On the morning of the accident, no Kokosing employees were present to direct Marshall to this new dumpsite, or to act as spotters, while he dumped his load near these wires.

The duty to warn arises when there is an unknown hazard.Betzner v. Navistar Internatl. Transport Corp. (1991), 77 Ohio App.3d 611,614, 603 N.E.2d 256, 258-259, citing Eicher v. UnitedStates Steel Corp. (1987), 32 Ohio St.3d 248, 249,512 N.E.2d 1165, 1167. In Betzner, a case somewhat similar to the one at bar, an employee on a paving crew was injured when the handle of his uninsulated metal check rod came into contact with electrical power lines above the area where he was working. However, inBetzner, the plaintiff admitted in his deposition that he was aware of the overhead electrical wires and that he knew of the hazard posed by actual contact with the electrical wires, supporting that court's finding that no liability existed.

From a review of the depositions and the numerous pictures of the site, I am of the opinion that the actions of Kokosing created a hazardous condition of which Marshall was unaware. At this site, the stub end of the four-lane section of Route 7 extended north under the power lines. This area was paved, but not used as a road, traffic having been diverted to a county road running east and west, immediately south of the end of old Route 7. Just beyond this point, to the north, Kokosing was installing culvert across the route of the new road. A ditch dug for that culvert is visible in some of the photographic exhibits. In the area between the ditch and the paved end of the existing road there is a dirt road coming in from the west. Materials can be seen piled not only alongside this dirt road, but also around the end of the existing road (under the wires), on the paved stub of Ohio Route 7.

Joe Sheets, the Kokosing site supervisor, testified in his deposition that the sand delivered by Marshall was ordered by the "pipe superintendent" and was to be used to cover the "pipe" or black plastic culvert being installed by Kokosing. Sheets claims the actual dump site was to the north of where Marshall dumped; but, even so, the photographs still show materials from this stockpile only a few feet away from where Marshall dumped. As I noted above, the CSPC employees noticed a pile of sand alongside Marshall's truck. Joe Sheets testified that no one else delivered sand that morning.

I must then conclude that Kokosing's activities created a trap for Marshall that rainy day in April. This leads to two questions:

1. Did Kokosing, by allowing others to dump materials under these electric wires, create a hidden hazard that lured Marshall to his death?

2. Did Kokosing, by failing to use employees to direct Marshall to the proper dumpsite, breach a duty of care owed to Marshall, as the result of stockpiling materials near these electric wires?

Marshall was a frequenter, as defined in R.C. 4101.01(E), on the premises then occupied by Kokosing. R.C. 4101.11 and 4101.12 impose a duty on the owner and/or occupier of the premises to protect employees and frequenters and to provide them with a safe workplace. See Eicher, above, and Cyr v. Bergstrom Paper Co. (1982), 3 Ohio App.3d 299, 300-301, 444 N.E.2d 1349, 1351-1352. The duty imposed under these statutes is not substantially different from the common law duty owed by the owner/subcontractor of property to an invitee. Debie v. CochranPharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 42,227 N.E.2d 603, 606. Thus, an owner or occupier is not an insurer of the safety of a frequenter/invitee; rather, he owes a duty to that individual "to exercise ordinary care to maintain the premises in a reasonably safe condition * * *." Debie, at 40,227 N.E.2d at 605.

A contractor who creates a dangerous condition on real property is not relieved from liability even if the hazard created is "open and obvious." Simmers v. Bentley Constr. Co. (1992),64 Ohio St.3d 642, 597 N.E.2d 504, syllabus. In Simmers, the injured party was a trespasser; while here a higher duty of care would ordinarily be owed to Marshall in his capacity as a frequenter. However, an "occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself from them." Carrozza v. Olympia Mgt., Ltd. (Sept. 2, 1997), Butler App. Nos. CA96-11-228 and CA96-11-234, unreported, citing Sidlev. Humphrey (1968), 13 Ohio St.2d 45, 233 N.E.2d 589, paragraph one of the syllabus.

It is at this point of the majority analysis that a critical and necessary determination is not addressed. That is, to determine whether or not these wires were an obvious hazard or a hidden hazard. Instead, they find that since construction work is, by its very nature, hazardous, the general contractor owes no duty to the subcontractor or its employees unless the general contractor participates in the work of the subcontractor. Participation in, or supervision of, the work of a subcontractor by the general contractor or site owner creates an exception to the rule that a site owner owes no duty to warn business invitees of obvious hazards. Whether or not the general contractor participates in the subcontractor's work has no relevance when examining the general contractor's duty to warn others of hidden hazards on the job site.

In Hirschbach, cited by the majority, the utility hired a contractor to replace wires on an electric tower. Following the electric company's instructions, the contractor placed a crane too close to the tower, causing the tower to collapse. The Supreme Court of Ohio concluded that the utility had control over, and awareness of, this hazard. Hence, the question of the utility's liability for the contractor's injuries became a question for the jury. While Hirschbach is frequently cited to support the exception to the rule that no duty is owed where the hazard is obvious, it also stands for the proposition that the site owner has a duty to protect the business invitee against hazards over which it has control. The utility company inHirschbach knew what load its tower could support, and the fact that it specifically directed the placement of the crane only further cemented its duty to warn the subcontractor of this hidden hazard.

In the case at bar, Marshall dumped his load of sand at a location, where, from the instructions he received, he could reasonably conclude Kokosing desired to have the load dumped. Kokosing could have controlled the hazard by using spotters, as it had in the past on this job. In the alternative, it could have asked CSPC to mark the wires with plastic flags or placed its own ground-level warning signs.

In addition, even if I were to assume that the wires should have been an obvious hazard to Marshall, I am of the opinion that a jury question exists as to whether or not Kokosing "participated" in the work or "supervised" Marshall. See, e.g., for example, Sopkovich v. Ohio Edison (1998), 81 Ohio St.3d 628,693 N.E.2d 233. In Sopkovich, painters relied on Edison's employee to disconnect wires at various places in a substation they were painting. Both by Kokosing's use of spotters in the past, and by the activity under the wires permitted by Kokosing, Marshall relied on Kokosing's instructions to believe he could safely dump in this area.

I conclude, therefore, the question of the nature of the duty owed to Marshall by Kokosing, and hence its liability in this case, were questions for the jury. I, therefore, dissent from this portion of the majority opinion.

Accordingly, I would affirm as to defendant Columbus Southern Power Company, and reverse and remand as to defendant Kokosing Construction Co., Inc.

JUDGMENT ENTRYIt is ordered that the JUDGMENT BE AFFIRMED and that Appellees recover of Appellants costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Meigs County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment and Opinion.

Evans, J.: Concurs in Part and Dissents in Part with Opinion.

For the Court

BY: _______________________________ Roger L. Kline Presiding Judge

¹ According to the almanac, 6:43 a.m., EDT on April 21, 1995, at Pomeroy, Ohio.

NOTICE TO COUNSELPursuant to Local Rule No. 14, this document constitutes afinal judgment entry and the time period for further appealcommences from the date of filing with the clerk.