JOURNAL ENTRY OPINIONThis appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1.

Plaintiff-appellant John Basar appeals from a summary judgment entered in favor of the defendant-appellee Steel Service Plus and arising out of plaintiff's trip and fall while working at defendant's premises. Plaintiff contends that disputed issues of material fact precluded summary judgment. We find no error and affirm.

Defendant owns and operates a steel processing plant located at 6515 Juniata Avenue in Cleveland, Ohio. On or about January 19, 1997, burglars broke into an "annex" at defendant's plant and stole a variety of items. The burglars gained entrance to the annex by way of breaking through boarded-up windows. They had knocked over metal shelving units and otherwise ransacked the place.

The next day, on January 20, 1997, Bob Barrett, President of Steel Services, discovered the break-in. Due to his concern that more break-ins would occur if he did not have the boarded-up window bricked over, he immediately hired John Basar, a masonry contractor, to brick up the entrances which had previously been covered by wooden boards.

Basar arrived at the plant several hours later. He was accompanied by his assistant, Joe Minissale. Upon arrival, both Mr. Basar and Mr. Minissale noticed that the area in which they were asked to work was dark and in total disarray. Boxes, metal shelving units, dumped files, old equipment and steel beams were scattered about the room.

Basar asked defendant to clean up the annex, or at least clear out the areas underneath where he and Mr. Minissale would be working so that they could move about freely. Although assured by defendant that this matter would be taken care of, defendant did nothing to straighten out the premises.

After completing the originally requested work, defendant asked Basar to seal other entrances of the plant. He agreed and returned to defendant's plant on January 23, 1997, to finish the masonry work. Upon his return, Basar and Minissale noticed that the annex was still not cleaned as defendant had promised. The room was in the same condition as it was on January 20th. Nevertheless, Mr. Basar proceeded to erect his scaffolding and begin the masonry work.

Thereafter, as Basar was stepping off his scaffold, he tripped and fell over some steel beams scattered underneath the area in which he was working. In an effort to avoid falling, he reached up and grabbed the scaffold and in the process of doing so ruptured his right biceps tendon.

Plaintiff claims that he was asked to work in a room that was dimly lit, in total disarray, and scattered with boxes, shelving and steel beams. Plaintiff argues that, although defendant knew that the annex was in disarray and that the steel beams were unavoidable, it took no steps whatsoever to protect the safety of Mr. Basar.

Following discovery, the defendant moved for summary judgment which was granted without opinion.

Plaintiff's sole assignment of error states as follows:

I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT.

Appellate review of summary judgments is de novo. Grafton v.Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105; Zemcik v. La PineTruck Sales Equipment (1998), 124 Ohio App.3d 581, 585. The Ohio Supreme Court recently restated the appropriate test in Zivich v.Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-70 as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.

Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E).Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385. Doubts must be resolved in favor of the nonmoving party. Murphy v.Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59.

Plaintiff asserts that defendant was negligent and/or violated Ohio's "frequenter statute" (R.C. 4101.11) by allowing the steel bars to remain on the annex floor where he worked. However, defendant asserts that it did not owe plaintiff a duty to warn of a hazard of which plaintiff was already aware and could have avoided.

In order to survive a properly supported motion for summary judgment in a negligence action, a plaintiff must establish that genuine issues of material fact remain as to whether: (1) the defendant owed him a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant's breach, the plaintiff suffered injury. See Texler v.D.O. Summers Cleaners Shirt Laundry Co. (1998), 81 Ohio St.3d 677,680; Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142; Menifeev. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Whether a duty exists is a question of law for the court to determine. Mussivand v. David (1989), 45 Ohio St.3d 314, 318.

The status of the person who is injured on the property of another defines the scope of the legal duty owed to the injured person by the property owner. Gladon v. Greater Cleveland RegionalTransit Auth. (1996), 75 Ohio St.3d 312, 315, citing Shump v. FirstContinental-Robinwood Assoc. (1994), 71 Ohio St.3d 414, 417. This Court in Connors v. Brownrigg (Oct. 1, 1998), Cuyahoga App. No. 73465, unreported, recently discussed the duty owed by a premises owner to an independent contractor under R.C. 4101.11 as follows:

The duty, if any, that an owner of premises owes to the employee of an independent contractor engaged by the owner arises in two ways: (1) under Ohio common law; and (2) under R.C. 4101.11. Eicher v. United States Steel Corp. (1987), 32 Ohio St.3d 248, 249. R.C. 4101.11, the "frequenter statute," provides:

"Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters."

The duty owed to frequenters under R.C. 4101.11 is a codification of the common-law duty owed by an owner or occupier of premises to invitees, requiring that the premises be kept in a reasonably safe condition, and that a warning be given of dangers of which the owner or occupier has knowledge. Eicher, 32 Ohio St.3d at 249. Notwithstanding this rule, the primary responsibility for protecting the employees of an independent contractor lies with the independent contractor, not the premises' owner. Id. at 250. Therefore, one who engages the services of an independent contractor ordinarily owes no duty of protection to, the employees of the independent contractor when the independent contractor or his employee proceeds with knowledge and an appreciation of the danger the work entails. Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, paragraph two of the syllabus.

As stated above, the "frequenter statute" is merely the codification of the common-law duty which property owners have traditionally owed to business invitees. Eicher v. United StatesSteel Corp. (1987), 32 Ohio St.3d 248, 249. Under common-law precedent, owners and occupiers of property owe a duty of ordinary care to invitees to maintain their premises in a reasonably safe condition so that invitees are not unreasonably exposed to danger.Paschal v. Rite Aid Pharmacy (1985), 18 Ohio St.3d 203, 203-204. However, a property owner has no duty to inform an invitee about obvious and inherently dangerous conditions on the property.Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103. Accordingly, when an employee of an independent contractor is injured as a result of the existence of an inherently dangerous condition, he can only maintain an action against the property owner if: (1) the owner had actual or constructive knowledge of such condition; and (2) the employee did not have such knowledge.Eicher, supra, quoting Davis v. Charles Shutrump Sons Co. (1942),140 Ohio St. 89, paragraph one of the syllabus.

It is undisputed that plaintiff was aware of the debris in the room, including the piece of steel he tripped on. In fact, plaintiff openly admitted in his deposition that he had walked over the piece of steel "a dozen times" and that he "kind of knew what was there."

Plaintiff testified that when he first arrived at the plant on January 20, 1997, he observed that the "junk" in the room had accumulated over several "years, generations," was "scattered everywhere" and was "6 feet piled in the air." When plaintiff returned to the plant on the day of his injury, January 23, 1997, the room looked the same. He described the room as:

There was stuff on the ground everywhere. You know, there were hundreds of things in that room that were laying around.

Nonetheless, plaintiff erected his scaffolding over the debris and began working.

Based on his testimony, we find that plaintiff was fully aware of the piece of steel before he tripped over it and was injured. As discussed above, a subcontractor, injured as a result of the existence of an inherently dangerous condition, can only maintain an action against the property owner if the owner had actual or constructive knowledge of such condition and the subcontractor did not have such knowledge. Plaintiff unequivocally admitted that he constructed and worked on the scaffolding with the knowledge that the floor was covered with "junk." He further admitted that he had walked over the piece of steel a dozen times before he tripped over it. Plaintiff clearly "proceed[ed] with knowledge and an appreciation of the danger." Accordingly, the "junk" was an obvious and inherently dangerous condition on the property of which defendant had no duty to warn plaintiff. Because plaintiff had actual knowledge of the condition, defendant, as a matter of law, had no duty to inform plaintiff of it.

Plaintiff's sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of appellant its 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 Court of Common Pleas to carry this judgment into execution.

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

DYKE, A.J., CONCURS. TIMOTHY E. McMONAGLE, J., CONCURS WITH SEPARATE CONCURRINGOPINION.

________________________ JAMES M. PORTER, JUDGE

CONCURRING OPINION

While I concur with the conclusion reached by the majority today I write separately to express my concern with the manner in which that result was obtained under the application of the "open and obvious" doctrine. The law concerning open and obvious doctrine is so well-settled that there can be little doubt about the proper disposition of the present case under its application. Nonetheless, the continued validity of the doctrine itself under a comparative negligence scheme may be justly criticized.

Initially, I find the doctrine questionable because it rests on a legal fiction. As has often been stated, the doctrine relieves the premises owner of the duty to warn the frequenter of the hazard.

Under the open and obvious doctrine, an occupier or owner 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 against them.'" Paschal v. Rite Aid Pharmacy (1985), 18 Ohio St.3d 203, 480 N.E.2d 474, quoting Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 233 N.E.2d 589.

Sheppard v. KAP Realty d.b.a. Euclid Green Plaza (Aug. 12, 1999), Cuyahoga County App. No. 75860, unreported. Therefore, an open and obvious hazard is not technically a bar to a negligence claim, because without a duty there is no negligence. But there has been a judicial sleight of hand. In this case, the premises owner's duty is imposed by statute, R.C. 4101.11, which requires the owner of premises to "furnish a place of employment which shall be safe" for employees and frequenters and to do everything "reasonably necessary" to ensure their safety. Our Supreme Court, however, has rather interpreted the statute to be merely "a codification of the common-law duty owed by an owner or occupier of premises to invitees, requiring that the premises be kept in a reasonably safe condition, and that warning be given off the dangers off which he hasknowledge." Eicher v. United States Steel Corp. (1987), 32 Ohio St.3d 248,249 (emphasis added). This common law interpretation, while relieving the courts of a duty to adhere to the text of the statute, actually expands the statutory duty; whereas the statute only speaks in terms of the manner in which premises were to be kept, the common law further imposes a duty to warn of latent dangers.

Latent dangers, almost by definition, are those which are not open and obvious. Therefore, it is both logical and sensible to hold that where the dangers are open and obvious there is no duty to warn and, thus, no basis for negligence. R.C. 4101.11 does not mention a duty to warn of latent dangers in the first place (or any dangers for that matter). It is concerned with maintaining premises in a reasonably safe condition for frequenters and employees. Why this statutory duty to maintain reasonably safe premises disappears merely because there is no duty to warn of open and obvious dangers has never been explained. In practice, the courts have equated the statutory duty with the common law duty and, then, only considered whether the duty to warn of latent dangers has been violated. Thus, the common law of Ohio holds that the more blatant, visible, open and obvious a danger is, the less likely it is that the courts will impose a duty to remove the danger — even under a statute specifically requiring a premises owner or occupier to maintain reasonably safe premises.

Sidle v. Humphrey (1968), 13 Ohio St.2d 45, did not create the open and obvious danger doctrine, but rather sanctioned its application by citing three of the leading treatises on Torts of that time. The following passage, cited in Sidle, is from 2 Harper James, Law of Torts (1956), 1491, and gives some of the reasoning behind the doctrine.

The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge. Hence the obvious character of the condition is incompatible with negligence in maintaining it. If plaintiff happens to be hurt by the condition, he is barred from recovery by lack of defendant's negligence towards him, no matter how careful plaintiff himself may have been.

Again, the Sidle opinion quotes the following from the venerable Prosser, Law of Torts (3 Ed. 1964), 403.

* * * In the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself.

The point made by these authorities is that the invitee (or frequenter) has a duty to protect himself against open and obvious hazards regardless of any negligence on the part of the premises owner in either creating the hazard or allowing the hazard to exist.

To understand why that was so, it must be recalled that at the time Sidle was decided, contributory negligence was the law in Ohio and, as a result, any (contributory) negligence on the plaintiff's part served as a complete bar to a claim of negligence. Rather than being a distinct and exceptional rule to the law of negligence as it is today, the open and obvious doctrine in 1968 was part and parcel of the contributory theory of negligence. Therefore, in practice it did not matter whether a defendant alleged an "open and obvious" hazard or contributory negligence, since both stood as absolute bars to a plaintiff's recovery. In 1980, however, the Ohio General Assembly adopted R.C. 2315.19, thereby abolishing the common-law bar of contributory negligence to negligence claims and establishing the comparative negligence standard. The rule ofSidle, presently known as "open and obvious" doctrine, survived the conversion to a comparative negligence standard.

I say the doctrine "survived" the conversion to a comparative negligence standard because that is precisely how its continuing validity should be characterized, as a holdover from an earlier era. This fact is made more striking when one considers the fate of a similar doctrine, assumption of the risk, which was abolished by the Ohio Supreme Court after the passage of the comparative negligence statute.¹ Anderson v. Ceccardi (1983), 6 Ohio St.3d 110. Like the open and obvious doctrine prior to the passage of R.C. 2315.19, assumption of the risk acted as a complete bar to plaintiff's recovery in a negligence action. Although in theory assumption of risk was distinguishable from contributory negligence, in practice it made no difference if the plaintiff's conduct was characterized as assumption of the risk or contributory negligence because the claim was barred either way. Id. at 113. The reasons for this are notably similar to the reasons that Prosser and Harper James cite for barring claims based on an obvious hazard.² Assumption of the risk is based on the fact that the plaintiff has acted despite his knowledge of a hazard. In the case of an open and obvious hazard the obviousness can be relied on to supply knowledge and knowledge of the condition is incompatible with negligence in maintaining it because the frequenter has a duty to protect himself. If the frequenter fails to do so he is contributorily negligent and so barred from recovery. Such reasoning was admirable under the contributory negligence standard but makes no sense today under a comparative negligence standard where the relative negligence of both parties is taken for granted.³

I would also suggest the common origin that assumption of the risk and open and obvious doctrine had in contributory negligence theory is the reason why the courts have failed to recognize the duty to maintain premises and merely focus on the duty to warn of latent hazards when considering cases involving the duty owed to invitees and frequenters.⁴ At a time when any failure in the plaintiff's own duty of care barred a claim for negligence, it did not really matter how many duties were imposed by law or statute upon the defendant; he had a complete defense to the action. Despite the conversion to comparative negligence standard and despite the merger of assumption of the risk under that standard, the Ohio courts by force of habit appear to continue to apply the open and obvious doctrine as a complete bar in spite of an express duty to maintain reasonably safe premises.⁵

The majority opinion points out an important limitation to the duty imposed by the Frequenter Statute when it states that there is "no duty to warn of obvious and inherently dangerous conditions." It is true that the Ohio courts have limited the duty under the Frequenter Statute so as not to impose a duty on employers toward independent contractors engaged in work, the performance of which involves elements of real or potential danger. Wellman v. East OhioGas Co. (1953), 160 Ohio St. 103, paragraph 1 of the syllabus. However, in this case it is not a question of appellant undertaking inherently dangerous work. At least brick-laying is not normally considered so. Here the condition creating the hazard is the alleged negligence of the appellee, not the nature of the work. As the supreme court has stated, it is the "abnormally dangerous condition of the premises" that entitled a contractor to recovery.Davis v. Shutrump Co. (1942), 140 Ohio St. 89, paragraph 1 of the syllabus (emphasis added).

The application of open and obvious doctrine in the present case does not mean that the court reaches a "wrong" or "unjust" decision. To the extent that the doctrine is applied to situations where the plaintiff's conduct is shown to be at least fifty percent of the proximate cause of the injury, the result is the same as if the open and obvious doctrine had been merged with contributory negligence just as assumption of the risk has been. R.C.2315.19(C). But to say that the claim was barred because the defendant owed the plaintiff no duty to warn him of the danger is to disregard an express duty on the premises owner to maintain premises in a reasonably safe condition. In the present case, it is merely begging the question. Obvious or not, both the appellant and appellee knew of the hazard and so the appellee's duty to warn the appellant of a hazard of which the appellant was already well aware is a nonissue. Furthermore, the statute under which the appellant brings suit says nothing about a duty to warn. The statute does, however, expressly impose a duty on owners such as the appellee herein to maintain reasonably safe premises. Common law imposes the same duty. Can it be that, as a matter of law, this duty does not exist when the violation of the duty itself is open and obvious?

The issue of appellant's negligence in his disregarding or failing to perceive an obvious hazard seems particularly suited to consideration under a comparative negligence standard. In such a situation the plaintiff's contributory negligence can be taken for granted. However, this should not automatically relieve a defendant of all responsibility under the fictitious theory that he was never under a duty to begin with. Rather, the question of the parties' relative negligence seems ideally suited for the jury's determination and that is how it is handled in the majority of the cases. Summary judgment granted on the grounds that the hazard was open and obvious should only be granted when the plaintiff's negligence in disregarding the hazard or failing in the duty of care is deemed less than that of the defendant's negligence in creating the hazard; i.e., "if the percentage of the negligence or implied assumption of the risk that is attributable to the complainant * * * is greater than the total of the percentages of the negligence that is attributable to all parties from whom the complainant seeks recovery * * * the court shall enter judgment in favor of those parties." R.C. 2315.19(C). Such is the law of Ohio at present by statute but for the open and obvious hazard doctrine.

Criticism of the open and obvious doctrine and its application is not the same as criticizing the concerns and principles which caused the doctrine to develop in the first place. Rather, it is believed that those concerns are now better served by the regular working of Ohio's comparative negligence standard instead of the outdated method of absolutely barring a claim for relief. Because, I believe, that the facts in this matter clearly show that the appellant's own neglect of the duty of care was at least fifty percent of the proximate cause of his injury, I would affirm the decision of the court below.

1 ¹ Two types of assumption of the risk were excepted. The first is "express" assumption of the risk, which is still governed by contract law. The second is "primary" assumption of the risk, which applies in cases where the defendant lacked a duty to the plaintiff. Anderson, 6 Ohio St.3d at 113. See, also, Gallagher v.Cleveland Browns Football (1996), 74 Ohio St.3d 427. 2 ² When one looks at the old cases it becomes apparent that the open and obvious doctrine was not even distinguishable from assumption of the risk. The fact patterns that we would today characterize under open and obvious doctrine were formally recognized as examples of assumption of the risk. See Westwood v.Thrifty Boy Super Markets, Inc. (1972), 29 Ohio St.2d 84; 39 Ohio Jur.2d (1959) 150, 302, Master and Servant, Sections 218, 341; Plasv. Holmes Construction Co., Inc. (1952), 157 Ohio St. 95, paragraph 1 of the syllabus; Davis v. Shutrump Co. (1942), 140 Ohio St. 89;Serafino v. Antinello (Mahoning 1911), 28 Ohio Cir. Dec. 669. 3 ³ Current justification for the doctrine, discussed supra, is that there is no duty on the defendant's part. 4 ⁴ Recall that the duty imposed on the appellee in the present case is imposed by statute, although the courts equate it with the duty imposed by common law. Therefore the criticisms of open and obvious doctrine apply regardless of the source of the duty. 5 ⁵ The point was also made by Justice Herbert, the sole dissenter in Sidle, that the majority has ignored the duty to render premises reasonably safe for invitees. 13 Ohio St.2d at 50.