Opinion
No. 92-164
Submitted October 13, 1992 —
Decided December 14, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 91AP-123.
Peterson Son Construction Company was the general contractor on a building project at Lima Correctional Institute. Appellee, Grunau Fire Protection Systems, Inc., appellant-claimant Richard Lytle's employer, was a subcontractor on the same job.
On August 29, 1986, claimant was instructed to install sprinkler lines in the second-story ceiling of the building. At the time, the only access to the second floor was by a wooden ladder. The ladder was fastened to the building structure at the top by a nail and a wire wrapped around an adjacent pole. The bottom of the ladder was unsecured. Claimant was injured when the ladder slipped, throwing him to the floor.
After his workers' compensation claim was allowed, claimant sought additional compensation, alleging that Grunau had violated a specific safety requirement ("VSSR"). Testimony before an Industrial Commission staff hearing officer indicated that the ladder was not Grunau's. Instead, it was the understanding of claimant that the ladder had been built by Peterson. Grunau's senior vice president also testified that Grunau did not build or supply the ladder, nor did it have any control over it. Consequently, Grunau contended that it was not responsible for any noncompliance with applicable safety regulations.
The staff hearing officer rejected Grunau's argument and found a violation, stating:
"* * * It is the finding that there was a violation of Section 4121:1-3-11(E)(1) of the Ohio Administrative Safety Code. The previously mentioned evidence indicates there were no permanent or temporary stairways provided to employees to climb to the second floor of this construction project. Therefore, Section 4121:1-3-11(E)(1) requires the employer provide a `fixed ladder' for use by its employees. It also requires that it be `maintained in place' until the temporary or permanent stairways are ready for use. The general contractor built and installed the ladder in question. However, the subcontractor has the duty to inspect it and make sure it is `maintained in place.' The evidence indicates the ladder was not adequately secured at the top or bottom. * * *" Grunau's rehearing request was denied.
Grunau sought a writ of mandamus from the Court of Appeals for Franklin County, claiming that the commission abused its discretion in finding a VSSR by Grunau. The court agreed and, in adopting the referee's report, reasoned that Grunau neither owned nor was "responsible for the condition and maintenance of the ladder" so as to justify the finding of a VSSR.
This cause is now before this court upon an appeal as of right.
William W. Johnston, for appellee.
Lee I. Fisher, Attorney General, and Gloria P. Castrodale, Assistant Attorney General, for appellants Industrial Commission and Bureau of Workers' Compensation.
Gallon Takacs Co., L.P.A., and Theodore A. Bowman, for appellant Lytle.
The parties agree that the fixation and maintenance of the ladder did not comply with Ohio Adm. Code 4121:1-3-11(E)(1), which states in part:
"Fixed ladders shall be provided and maintained in place until temporary or permanent stairways are ready for use."
A VSSR, however, requires more than a showing of violation and proximate cause. It also demands that the claimant's employer be the party that violated the specific safety requirement. State ex rel. Lyburn Constr. Co. v. Indus. Comm. (1985), 18 Ohio St.3d 277, 18 OBR 329, 480 N.E.2d 1109. Failure to satisfy the latter dictates a finding that claimant's employer "is not the `employer' comprehended by Section 35, Article II of the Constitution of Ohio, for whose disregard of a specific safety requirement the Industrial Commission is empowered to make an additional compensation award * * *." State ex rel. Reed v. Indus. Comm. (1965), 2 Ohio St.2d 200, 31 O.O.2d 408, 207 N.E.2d 755, at syllabus.
An employer cannot escape VSSR liability by merely citing its lack of ownership or maintenance of the noncomplying equipment. Reed; Lyburn; State ex rel. Zito v. Indus. Comm. (1980), 64 Ohio St.2d 53, 18 O.O.3d 257, 413 N.E.2d 787. It must also be shown that the alleged violator had no "authority to alter or correct" the defective condition. Reed, 2 Ohio St.2d at 203, 31 O.O.2d at 410, 207 N.E.2d at 758; Lyburn, 18 Ohio St.3d at 280, 18 OBR at 332, 480 N.E.2d at 1111. In adopting the referee's reasoning, the court below presently suggests, as a matter of law, that a subcontractor, by virtue of its relationship to the general contractor, can never have authority to alter or correct equipment that the general owns or provides. This conclusion, however, was based on Zito, supra, which does not support so broad a proposition.
Zito, an employee of the general contractor, was injured when he fell from a subcontractor's scaffold. The commission refused to assess a VSSR against the general contractor since the faulty scaffold was built by the subcontractor. We disagreed, stating:
"The test is not whether the employer constructed the scaffold. Rather, we hold that in the case of a general contractor, there may exist the requisite degree of responsibility to warrant imposition of a specific safety violation on that employer. We are mindful that the finding of such a violation is in the nature of a penalty. * * * Nevertheless, we are of the opinion that an imposition of this penalty on a general contractor may be proper under certain factual patterns." (Citation omitted, emphasis added.) Zito, 64 Ohio St.2d at 55, 18 O.O.3d at 258, 413 N.E.2d at 789.
Our use of the word "may" rather than "shall" and the qualifying phrase "under certain factual patterns" in Zito indicate that in some cases, the general contractor, either tacitly or by agreement, does not exercise exclusive control over the equipment it provides. If so, the subcontractor may be one of the parties that also exercises meaningful control over the noncomplying apparatus. We thus hold that "authority to alter or correct" must be determined on a case-by-case basis and should not be predetermined by an employer's contractual status.
Applying the foregoing analysis to the commission's order, we determine the commission made no express finding as to authority to alter or correct. We thus return the cause to the commission for further consideration and an amended order.
Accordingly, the judgment of the court of appeals is reversed.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.