Opinion
No. 35660
Decided April 29, 1959.
Negligence — Independent contractor — Duty to safeguard public against danger — Failure to exercise due care — Joint liability of employer and contractor — Employer's lessee not liable for negligence of contractor, when.
1. Where a person employs a contractor upon construction in a place where the public may lawfully pass, which work requires precautions to be taken to safeguard the public against danger, such person owes a duty to see that reasonable precautions are taken and may be liable jointly with the contractor for the failure of the latter to exercise due care in taking such precautions. (Paragraph one of the syllabus of Warden v. Pennsylvania Rd. Co., 123 Ohio St. 304, and paragraph three of the syllabus of Richman Brothers Co. v. Miller, 131 Ohio St. 424, approved and followed.)
2. A lessee, who is not a party to a contract between his lessor and an independent contractor and who is without power to direct or control the conduct of either of such persons, is not liable for a public danger created by the independent contractor in the performance of that contract.
APPEAL from the Court of Appeals for Cuyahoga County.
Since the defendant, Riss Company, Inc., seeks only a final judgment herein, as upon motion for a directed verdict, only that evidence most favorable to the plaintiff will be considered.
The Transport Manufacturing Equipment Company, an Illinois corporation hereinafter referred to as TM E, is the owner of a parcel of land on St. Clair Avenue in Cleveland, upon which is located a terminal building suitable for use by trucking companies. Under a lease with TM E, the defendant occupies half of the terminal building, and some eight other trucking companies occupy the other half.
Under this lease, the defendant was responsible for, among other things, maintaining the parking area adjacent to the terminal building, and, when repairs were found necessary upon a semiannual inspection, a competent contractor was to be employed to make all necessary repairs, the expense of which was to be paid by defendant.
About a year after defendant began its occupancy of part of the terminal building, the asphalt parking area around the building began to break up. The president of TM E requested the terminal manager of defendant to obtain bids from Cleveland contractors on the cost of resurfacing and draining the area. Upon receipt of bids forwarded to him in Kansas City, the president of TM E came to Cleveland and on behalf of TM E personally negotiated a contract with Gerl Excavating Company to install, among other things, a new driveway and a concrete apron therefor across the sidewalk.
Construction of the concrete apron required Gerl to break up the public sidewalk on the site of and adjacent to the new apron, and while this work was in progress Gerl erected a U-shaped barricade around the sidewalk area to prevent pedestrians from walking across the apron area.
The breakup of the sidewalk was authorized by the city of Cleveland under a permit obtained by the terminal manager of defendant, which permit granted permission "to Riss Company to lay concrete sidewalk or driveway on" an area of 250 square feet.
On the evening of November 27, 1952, plaintiff's decedent was walking in an easterly direction on the southerly sidewalk of St. Clair Avenue. He stepped into the street to get around the above-described barricade and was struck from behind by a motorist, as a result of which he suffered fatal injuries.
In an action for wrongful death, the trial court overruled defendant's motion for directed verdict made at the close of all the evidence and submitted the cause to a jury. The jury was discharged after it was unable to reach a verdict. Defendant then moved for judgment notwithstanding the failure of the jury to reach a verdict, and this motion was overruled.
Upon appeal, the Court of Appeals, by a divided vote, affirmed the judgment of the Court of Common Pleas.
The cause is before this court upon the allowance of defendant's motion to certify the record.
Mr. Warren M. Briggs and Mr. Fred Weisman, for appellee.
Messrs. McConnell, Blackmore, Cory Burke and Mr. Mark O'Neill, for appellant.
The only question raised in this appeal that we consider necessary to decide is whether on the evidence presented the defendant is entitled to a directed verdict.
There is no doubt that if the defendant had employed the contractor upon construction in a place where the public might lawfully pass, which work required precautions to be taken to safeguard the public against danger, the defendant owed a duty to see that reasonable precautions were taken and is liable jointly with the contractor for the failure of the latter to exercise due care. Warden v. Pennsylvania Rd. Co., 123 Ohio St. 304, 175 N.E. 207; Richman Brothers Co. v. Miller, 131 Ohio St. 424, 3 N.E.2d 360.
But before such liability can be imposed on the defendant, the defendant must have been a principal in the contract for the construction.
The record reveals no evidence that the defendant's terminal manager, who made application for and procured a sidewalk permit from the city, was authorized to secure such permit in the name of defendant. (It is interesting to note that on the date the permit was issued the work was actually in progress under the contract of the contractor with TM E.) The evidence clearly reveals that TM E was the owner of the property, and that TM E, and TM E alone, entered into the contract. That the parties to the lease, i.e., TM E and the defendant, did not consider it the obligation of the latter to make the repairs being made here is evident from the very fact that TM E, and not the defendant, made the contract with Gerl.
In our opinion, the controlling law on the question is aptly summed up by Judge Skeel in his dissenting opinion, where he said, in part:
"The defendant, not being a party to the contract, and being without power to direct or control either the conduct of its lessor or the lessor's independent contractor, the theory of law that where public danger is created by the acts of an independent contractor [liability] may be visited on the one who procured the work to be done, cannot be asserted against one who is only a lessee of the owner and a stranger to the contract."
The judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas with instructions to enter final judgment for the defendant.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS and HERBERT, JJ., concur.
PECK, J., not participating.