McConville v. Jackson Comfort Sys., Inc.

Citations: 642 N.E.2d 416; 95 Ohio App. 3d 297; 1994 Ohio App. LEXIS 2720Docket: No. 16557.

Court: Ohio Court of Appeals; June 22, 1994; Ohio; State Appellate Court

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Thomas McConville appeals a trial court's summary judgment in favor of General Electric Company (GE), Jackson Comfort Systems, Inc. (Jackson Comfort), and Stamm Contracting Company (Stamm Contracting) in a personal injury case. McConville argues that summary judgment was inappropriate for several reasons: 

1. GE, as the plant owner, should be liable because McConville was not engaged in an inherently dangerous activity and GE actively participated in the project.
2. Jackson Comfort, the subcontractor, was aware of unsafe conditions that contributed to McConville's injury.
3. Stamm Contracting, the general contractor, should not have received summary judgment as the action was initiated within the statute of limitations.

The appellate court affirms the trial court’s decision, finding that:

1. McConville was engaged in an inherently dangerous activity, and GE did not participate in the actions leading to his injury.
2. Evidence presented did not establish that McConville’s injury was a substantial certainty.
3. The action against Stamm Contracting was improperly commenced.

The undisputed facts reveal that GE contracted Stamm for construction work at its facility, which then hired Jackson Comfort for HVAC installation. On February 8, 1990, while working from scaffolding, McConville fell after becoming dizzy, allegedly due to welding fumes from below. He did not use available safety equipment. 

McConville initially sued GE, Jackson Comfort, and unnamed defendants in January 1992, alleging negligence and intentional tort. He later amended his complaint to correctly identify the general contractor and voluntarily dismissed his suit before re-filing. All three defendants moved for summary judgment, which was granted, leading to McConville's appeal.

In addressing his first assignment of error, McConville claims the trial court erred by granting GE summary judgment, asserting that GE had a duty to maintain safe working conditions under the frequenter statute (R.C. 4101.11) and common law as a business invitee.

R.C. 4101.11 establishes the duty of property owners to maintain safe conditions for invitees and to warn them of known dangers, reflecting common-law principles. Under this statute, employers must provide a safe workplace for employees and frequenters, defined as individuals present in a workplace who are not trespassers, including independent contractor employees. However, this duty does not apply to hazards that are inherent to the nature of the work, such as falling from a scaffold while performing installation tasks.

In the case at hand, McConville claimed that GE actively participated in the work operation, which could establish a duty of care. Active participation requires that the property owner either allowed or prohibited actions that directly led to an employee's injury. Merely having a supervisory role, or showing concern for safety, does not qualify as active participation. McConville failed to provide evidence that GE influenced the critical actions resulting in his injury, leading to the trial court's decision to grant GE summary judgment, which was upheld.

Regarding the second assignment of error, McConville contended that Jackson intentionally harmed him by directing him to work in dangerous conditions without proper training or safety equipment, asserting that this created a substantial certainty of harm. To prove an intentional tort by an employer, the employee must demonstrate the employer's knowledge of a dangerous condition, awareness that harm was substantially certain if the employee engaged in the work, and that the employer compelled the employee to continue despite this knowledge. The court's analysis followed the precedent set in Fyffe v. Jeno's, Inc., to evaluate the intentional tort claim.

To oppose a motion for summary judgment, an injured employee must present specific facts that create a genuine issue concerning each element of the Fyffe three-prong test for employer intentional torts. The plaintiff must prove intentional tort by a standard exceeding that of negligence or recklessness. An employer cannot be expected to foresee an employee's injury if the employee has alternative options. In this case, McConville failed to show a genuine issue of material fact regarding the employer's knowledge of substantial certainty of harm. McConville argued that Jackson Comfort did not provide adequate training or supervision for working on scaffolding, but it was also asserted that his fall was due to fumes from welders below. Evidence indicated that while safety equipment was not mandatory, it was available, and Jackson Comfort was unaware that the fumes would incapacitate McConville. Consequently, the evidence did not support the claim that Jackson Comfort knew injury was substantially certain.

Regarding the third assignment of error, McConville claimed his action against Stamm Contracting was timely filed. He initially identified Stamm using the fictitious name "John Doe" as permitted under Civ.R. 15(D). However, the original complaint was never personally served, and the amended complaint, served via certified mail, was filed after the statute of limitations expired. Thus, McConville did not properly commence the action as required by Civ.R. 15(D) and 3(A), leading to the trial court's correct decision to grant summary judgment in favor of Stamm Contracting. The trial court's judgment was affirmed, with the judges concurring. The argument regarding naming discrepancies between "Stamm Construction Co." and "Stamm Contracting Company" was not addressed, as the failure to properly commence the action sufficed for the ruling.