Simmers v. Bentley Constr. Co.

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      Simmers et al., Appellees, v. Bentley Construction
Company, Appellant, et al.
      [Cite as Simmers v. Bentley Constr. Co. (1992),      Ohio
St.3d     .]
Torts -- Negligence -- Independent contractor who creates a
      dangerous condition on real property is not relieved of
      liability under the "open and obvious" hazards doctrine.
An independent contractor who creates a dangerous condition on
      real property is not relieved of liability under the
      doctrine which exonerates an owner or occupier of land
      from the duty to warn those entering the property
      concerning open and obvious dangers on the property.
      (No. 91-1500 -- Submitted May 19, 1992 -- Decided
September 9, 1992.)
      Appeal from the Court of Appeals for Richland County, No.
CA-2783.
      On August 27, 1987, fourteen-year-old plaintiff- appellee
Stephen Simmers was seriously injured when he fell through a
hole in a railroad bridge owned by CSX Transportation, Inc.
("CSX"). The bridge supported an abandoned railroad track and
a walkway beside it that ran the length of the bridge. The
walkway was approximately four and three-quarters feet wide
with a four-and-a-half-foot-high guardrail to protect people
from falling. The bridge spans a creek, about thirty feet
above the water. The bridge interconnects public parks,
community baseball diamonds, a Boy Scout camp, and fishing
areas.
      At the time of the accident, defendant-appellant Bentley
Construction Company ("Bentley") was under contract with CSX to
remove cross-ties, spikes, and plates left when the railroad
removed tracks near the bridge. Bentley did not contract to
remove any materials from the bridge. For purposes of this
appeal only, Bentley concedes that sometime between June 22,
1987 and August 22, 1987, a Bentley crew member attempted to
drive a fifteen-ton front-end loader across the walkway portion
of the bridge. The front-end loader fell through the boards of
the walkway and became stuck, leaving a fifteen-and-a-half-
by-four-foot hole in the walkway. Bentley did not attempt to
repair or barricade the hole. David Bentley, Bentley's owner,
knew that children used the bridge on a regular basis.
     The accident occurred when Stephen and his friend, Andy
Thomas, were walking across the bridge. Both boys had been on
the bridge many times. Andy knew the hole was there and walked
around and past it. Stephen, who was several steps behind
Andy, did not know about the hole. Because he was adjusting
his watch band, Stephen was not looking where he was going and
fell through the hole onto the rocks and debris in the river
bed below.
     On October 12, 1988, Gerald Simmers, Stephen's father,
filed suit on behalf of Stephen and himself against defendants
CSX and Bentley. Simmers claimed that defendants' negligent
creation of the hole and failure to take appropriate safety
precautions was the proximate cause of Stephen's injuries.
Simmers sought damages for past and future medical expenses,
pain and suffering, and lost wages. The trial court granted
summary judgment in favor of CSX and dismissed it from the
action, finding that CSX owed no duty to Stephen because the
hole in the bridge was open and obvious. CSX is not a party to
this appeal.1 By a separate ruling the trial court also
granted summary judgment in favor of Bentley on the ground that
the hole was open and obvious.
     The court of appeals reversed and remanded, holding the
following to be genuine issues of material fact: (1) did
Bentley create the hole? (2) was Bentley negligent with regard
to creating and/or dealing with the hole? and (3) what was the
proximate cause of Stephen Simmers's injuries?
     The cause is now before this court pursuant to the
allowance of a motion to certify the record.

     Wiles, Doucher, Van Buren & Boyle Co., L.P.A., Paul M.
Doucher and Thomas J. Keener, for appellees.
     Lane, Alton & Horst, Rick E. Marsh and John A. Fiocca,
Jr., for appellant.

     Herbert R. Brown, J.   The issue before us is whether the
trial court properly granted summary judgment to Bentley.
Bentley is an independent contractor who concedes for purposes
of this appeal that it created a dangerous condition on the
railroad bridge. Accordingly we must decide whether Bentley's
liability is determined by the rules governing landowner
liability or by the ordinary rules of negligence. For the
reasons that follow we find that the rules of negligence apply
and that summary judgment was improper.
     The trial court and the court of appeals determined that
CSX, the owner of the bridge, owed no duty to Stephen Simmers
because the hole was an open and obvious danger. Bentley
argues that this determination became the law of the case.
Therefore, Bentley claims, it had no duty to warn of the danger
and cannot be held liable for Stephen Simmers's injuries. We
disagree.
     The rule relieving a defendant from liability for harm
resulting from "open and obvious" hazards is a legal doctrine
that has developed in suits against property owners by a person
injured when he comes on the property. The "open and obvious"
doctrine states that an owner or occupier of property owes no
duty to warn invitees entering the property of open and obvious
dangers on the property. Sidle v. Humphrey (1968), 

, 

, 

, at paragraph one of the
syllabus; Paschal v. Rite Aid Pharmacy, Inc. (1985), 

, 18 OBR 267, 

. The rationale behind
the doctrine is that the open and obvious nature of the hazard
itself serves as a warning. Thus, the owner or occupier may
reasonably expect that persons entering the premises will
discover those dangers and take appropriate measures to protect
themselves. Sidle, supra.2
     Historically, a landowner's liability in tort is incident
to the occupation or control of the land, which involves the
owner's right and power to admit and exclude people from the
premises. Wills v. Frank Hoover Supply (1986), 

, 26 OBR 160, 162, 

; Mitchell v.
Cleveland Elec. Illum. Co. (1987), 

, 30
OBR 295, 297, 

. The "open and obvious"
doctrine, therefore, governs a landowner's duty to persons
entering the property--property over which the landowner has
the right and power to admit or exclude persons as invitees,
licensees, or trespassers.
     Bentley was an independent contractor performing services
for the owner of the bridge. While Bentley may have had the
right to be on, and in the vicinity of, the bridge, it had no
property interest in the premises. In fact, it was stipulated
that "Bentley Construction Company did not contract to, nor was
it responsible, to remove tracks or ties from the bridge in
Lexington, Ohio which is the location of this incident." We
are not persuaded to extend the "open and obvious" doctrine to
persons who conduct activity with the consent of the landowner
but who themselves have no property interest in the premises.
     Accordingly, we hold that an independent contractor who
creates a dangerous condition on real property is not relieved
of liability under the doctrine which exonerates an owner or
occupier of land from the duty to warn those entering the
property concerning open and obvious dangers on the property.
     Since Bentley had no property interest in the premises, we
must look to the law of negligence to determine Bentley's duty
of care, and then consider the significance of the factual
finding that the hole was open and obvious.
     Under the law of negligence, a defendant's duty to a
plaintiff depends upon the relationship between the parties and
the foreseeability of injury to someone in the plaintiff's
position. Huston v. Konieczny (1990), 

,

; Commerce & Industry Ins. Co. v. Toledo
(1989), 

, 

; Jeffers v.
Olexo (1989), 

, 

; Menifee v. Ohio Welding Products, Inc. (1984), 

, 15 OBR 179, 180, 

. Injury is
foreseeable if a defendant knew or should have known that its
act was likely to result in harm to someone. 

Commerce & 

     For this appeal, Bentley concedes that it created the hole
and that the hole was a dangerous condition. Bentley's owner
also admits knowing that the public, including children,
frequently used the bridge. Therefore, it was foreseeable that
someone using the bridge was likely to be injured by falling
through the hole. Under the facts stipulated to us, Bentley
owed a duty of care to users of the bridge.
     Once the existence of a duty is found, a plaintiff must
show that the defendant breached its duty of care and that the
breach proximately caused the plaintiff's injury. Mussivand v.
David (1989), 

, 

; Di
Gildo v. Caponi (1969), 

, 

, 

.
     Bentley made no attempt to repair or barricade the hole.
Accordingly, there are factual questions which are not properly
resolved by summary judgment. One such question is whether a
breach of duty resulted from the failure to guard or otherwise
protect the hole. See Prentiss v. Kirtz (1977), 

, 

, 

. A second is whether the
condition of the hole was itself sufficiently discernible to
constitute an adequate warning of the danger. See Blair v.
Goff-Kirby Co. (1976), 

, 

, 

, at syllabus; Paulin v. John R. Jurgensen Co. (1982), 

, 7 OBR 354, 

. Even if the hole
might have been sufficiently "open and obvious" to relieve a
landowner of liability, that determination does not resolve
either of the fact questions which must be addressed under the
general law of negligence.
     In the law of negligence, an "open and obvious" danger can
also place affirmative defenses at issue. These would be (1)
contributory negligence, and (2) assumption of the risk.
Rothfuss v. Hamilton Masonic Temple Co. (1973), 

, 

, 

; Briere v. Lathrop Co.
(1970), 

, 

, 

.
     In essence, Bentley argues that Stephen was negligent in
failing to protect himself from an open and obvious danger and
that his negligence proximately caused his own injuries. A
plaintiff's contributory negligence, however, does not
automatically bar recovery for damages directly and proximately
caused by the defendant's negligence. R.C. 2315.19(A)(2).
     Issues of comparative negligence are for the jury to
resolve unless the evidence is so compelling that reasonable
minds can reach but one conclusion. Hitchens v. Hahn (1985),

, 17 OBR 447, 448, 

; Shinaver v. Szymanski (1984), 

, 14 OBR
446, 

. Under the comparative negligence statute,
the factfinder apportions the percentage of each party's
negligence that proximately caused the plaintiff's damages.
R.C. 2315.19(B). A plaintiff may recover where his
contributory negligence is equal to or less than the combined
negligence of all the defendants. R.C. 2315.19(A)(2).
     On the record before us, reasonable minds can reach
different conclusions as to (1) whether Bentley breached its
duty, (2) whether Stephen was contributorily negligent or
assumed the risk, (3) the extent to which the negligence of
Bentley or Stephen (if such negligence be found) was the
proximate cause of the injuries, and (4) what percentage (if
applicable) of the damages should be attributed to the
respective parties.
     Therefore, we affirm the court of appeals and hold that
summary judgment in favor of Bentley was improper because
genuine issues of material fact exist regarding the duty issue
and the proximate cause of Stephen Simmers's injuries.
                                    Judgment affirmed.
     Sweeney, Douglas and Resnick, JJ., concur.
     Moyer, C.J., Holmes and Wright, JJ., concur in part and
dissent in part.
FOOTNOTES:
     1 Plaintiffs appealed the trial court's dismissal of
CSX. Simmers v. Bentley Constr. Co. (Aug. 20, 1990), Richland
App. No. CA-2747, unreported. In that appeal, the court stated
that reasonable minds could only conclude that the hole was
open and obvious and that there was no wanton misconduct on the
part of CSX in failing to inspect the bridge.
     2 Although the "open and obvious" doctrine is syllabus
law in Ohio, 

 its application has not been
uniform. See Ohliger v. Toledo (1900), 

;
Richmond v. Ohio State Univ. (1989), 

, 

. Further, since Ohio enacted the comparative
negligence statute, R.C. 2315.19, courts must carefully
distinguish between a defendant's duty of care and a
plaintiff's contributory negligence. See Parsons v. Lawson Co.
(1989), 

, 

. However,
this case does not put at issue the "open and obvious" doctrine
as applied to owners and occupiers of land.
     Wright, J., concurring in part and dissenting in part.
Under the syllabus law announced by the majority, an
independent contractor who creates a dangerous yet open and
obvious condition on real property is never relieved of a duty
to warn licensees of the condition, even when the condition
arises under or is incidental to work specified in a contract
between the landowner and the independent contractor, and even
if the landowner would be immune from liability had he, rather
than the independent contractor, created the dangerous
condition. The majority's formulation unnecessarily retreats,
without much justification, from the widely accepted rule of
law that those acting on behalf of an owner or occupier are
entitled to the immunities possessed by such owner or
occupier. See, e.g., 2 Restatement of the Law 2d, Torts (1965)
287, Section 3833; Dishington v. A. W. Kuettel & Sons, Inc.
(1959), 

, 

; Ireland v. Complete Mach.
& Equip. Co. (1940), 

, 

.
     Under the law set forth by the majority, an independent
contractor who digs a foundation for a house -- a deliberately
constructed condition of the land that under most circumstances
would certainly constitute an open and obvious hazard -- will
henceforth not be immune from suit by those who, by license or
trespass, come upon the land and are injured by falling into
that hazard. To impose the risk of liability upon a contractor
who is acting upon the wishes of the landowner and within the
expected scope of his employment, while relieving the owner of
such liability, seems most unfair.4
     A better (and fairer) approach can be found by reference
to this court's decision in Mudrich v. Standard Oil Co. (1950),

, 

, 

. In that case, the
court declined to bestow the landowner's immunity upon a
business visitor who exceeded the scope of his "business-guest
activities" by negligently performing the task for which he was
invited upon the land. 

, 

, 

. As reflected in paragraph one of the syllabus of that
case, "[a] business visitor upon premises is not by such status
relieved of liability for his acts of negligence which are
outside and beyond the scope of the business purposes for which
he is on the premises."
     To treat an independent contractor in the same manner as a
business invitee would not be as corrosive a change in the law
as that propounded by the majority. Indeed, under Section 383
of the Restatement of Torts, in order for an independent
contractor to be cloaked with the immunity of the landowner,
the work performed must be "on behalf of" the landowner. Thus,
unless the hazard created by the contractor is reasonably
contemplated by the landowner as arising under or incidental to
the contract between them, the hazard is not created "on behalf
of" the landowner, and the landowner's immunity would not
extend to the contractor.
     By this analysis, the independent contractor who creates
an open and obvious hazard that is not within the scope of the
contract with the landowner would have no special status with
respect to his duty to others entering the land as trespassers
or mere licensees. Under Section 386 of the Restatement of
Torts, a person who is not acting on behalf of a possessor of
land, and who creates or maintains an artificial condition on
the land that he should recognize as involving an unreasonable
risk of physical harm to others, is subject to liability for
the physical harm caused to them, even if those harmed are mere
trespassers or licensees. Thus, if Bentley were found to have
acted outside the scope of its employment with CSX in creating
a dangerous condition on the land, I believe that Bentley would
have a duty to either correct the condition or warn others of
its existence, even if the condition is open and obvious.5
     As reflected in the majority opinion, a question exists as
to whether Bentley created the hole in the bridge and, if so,
whether allowing the hazard to remain uncorrected was
contemplated by CSX as incidental to its contract with
Bentley. Accordingly, I concur with the majority's conclusion
that summary judgment was not appropriate and that there are
material issues of fact that need to be resolved by a finder of
fact. Although I disagree as to which issues of fact need to
be resolved, I agree that the case should be remanded for trial.
     Moyer, C.J., and Holmes, J., concur in the foregoing
opinion.
FOOTNOTES:
     3 Conveniently, but most understandably, the majority
ignores the rule of law recited in 2 Restatement of the Law 2d,
Torts (1965), Section 383, and followed by several other
jurisdictions. That section reads as follows:
     "One who does an act or carries on an activity upon land
on behalf of the possessor is subject to the same liability,
and enjoys the same freedom from liability, for physical harm
caused thereby to others upon and outside of the land as though
he were the possessor of the land."
     4 It has been suggested that the "open and obvious"
doctrine no longer has a place in our jurisprudence as a result
of the adoption, by statute, of comparative negligence
principles. Indeed, some jurisdictions have eliminated the
doctrine as an absolute bar, reasoning that it is inconsistent
with the concept of comparative negligence. See, e.g., Parker
v. Highland Park, Inc. (Tex.1978), 

; Woolston v.
Wells (1984), 

, 

; O'Donnell v. Casper
(Wyo. 1985), 

; Cox v. J.C. Penney Co., Inc.
(Mo.1987), 

; Harrison v. Taylor (1989), 

, 

; Riddle v. McLouth Steel Products Corp.
(1990), 

, 

. Other
jurisdictions, however, have retained the doctrine as an
absolute bar, reasoning that it is not incompatible with
comparative negligence. These jurisdictions have concluded
that because defendant's complete lack of duty in such cases
means that he was not negligent at all, there is no negligence
to "compare" with that of the plaintiff. See, e.g., Wald v. K
Mart Corp. (1990), 

, 

. Although I
remain unconvinced that the doctrine has outlived its
usefulness in our jurisdiction, I nevertheless would prefer a
wholesale repudiation of the doctrine to the piecemeal
eradication the majority has initiated today.
     5 One important policy reason for rejecting immunity for
a contractor who acts outside the scope of his contract is to
protect the landowner, his invitees and licensees from the
creation of conditions that, while arguably open and obvious,
are nevertheless dangerous and are unknown to the landowner.
It is only through knowledge that a dangerous condition exists
that a landowner can assess the risk of the hazard and
determine whether, even in an absence of a duty to act, the
hazard should be eliminated or a warning of the hazard should
be given.
     When a contractor acts outside the expectations of the
landowner and creates or maintains a hazard without the
landowner's knowledge, the landowner cannot be expected to
inspect the premises for hazards that are, with reference to
the scope of the contractor's work, unexpected. In order to
promote the repair of or warning about such "unexpected"
hazards, however, it is entirely appropriate to impose upon the
contractor the duty to mitigate the potential danger of the
hazard by repair or through the placement of warnings or
barricades. Although the majority's approach is consistent
with this goal, it reaches too far to include those contractors
who are acting on the landowner's behalf and those hazards that
are well within the expectations of the landowner.