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Court of Appeals of Ohio,Eighth District, Cuyahoga County.

CEFARATTI et al., Appellants, v. MASON STRUCTURAL STEEL CO., INC. et al.;  Panzica Construction Company, Inc., Appellee.

No. 76100.

Decided: December 06, 1999

Seaman & Associates and Christian R. Patno, Cleveland, for appellants. Alan B. Glassman, Lakewood;  Davis & Young and Michael J. Creagan, Cleveland, for defendants. Davis & Young and Henry A. Hentemann, Cleveland, for appellee Panzica Construction Co.

This is the second time this case has been before this court.   In the first appeal, this court held that the property owner owed no duty to appellant Eliseo Cefaratti.  Cefaratti v. Mason Structural Steel Co., Inc. (May 22, 1997), Cuyahoga App. No. 70971, unreported, 1997 WL 272376.   The Ohio Supreme Court reversed that decision and returned the matter to the trial court to rethink  Cefaratti in light of its decision in Sopkovich v. Ohio Edison Co. (1998), 81 Ohio St.3d 628, 693 N.E.2d 233.   See Cefaratti v. Mason Structural Steel Co. (1998), 82 Ohio St.3d 121, 694 N.E.2d 915.   The trial court again granted summary judgment in favor of appellee Panzica Construction Co.

 We now review, in this accelerated appeal, appellant's sole assigned error that the trial court erred in granting summary judgment to appellee in view of Sopkovich.   We agree and note that in an accelerated appeal, App.R. 11.1 allows for our decision to be in brief, conclusory form.   Consequently, this opinion will not contain a “comprehensive exposition of our reasons” for reversing the trial court's decision.   See Crawford v. Eastland Shopping Mall Assoc. (1983), 11 Ohio App.3d 158, 11 OBR 240, 463 N.E.2d 655.   Cefaratti assigns the following error for our review:

“The trial court erred in granting summary judgment since there exist genuine issues of material fact under Sopkovich v. Ohio Edison Co. and other existing case law.”

Having reviewed the record and the legal arguments of the parties, we reverse the decision of the trial court.   The apposite facts follow.

Cefaratti, an employee of independent subcontractor American Piping, fell from a stairwell while installing pipes at appellee's building construction site.   Prior to the fall, appellee had a guard rail on the stairwell, which evidenced an appreciation for the danger.   However, appellee removed the rail without warning the workers to avoid the area.   Appellee's removal of the rail “interfered with appellant's work by creating a condition that required him either to cease work altogether or to work in an unsafe area.”  Cefaratti v. Mason Structural Steel Co. (May 22, 1997), Cuyahoga App. No. 70971, unreported, 1997 WL 272376 (Karpinski, J., dissenting).

 In light of the Ohio Supreme Court's remand of Cefaratti, the issue for us in this accelerated appeal is whether appellee retained control over a critical variable in the workplace and, therefore, is liable for the injuries sustained by appellant.

 In Sopkovich v. Ohio Edison Co., the Supreme Court of Ohio refined the law on the liability of general contractors in Ohio. In Sopkovich, the court held that a general contractor can be held liable to the independent contractor's employees if (1) the general contractor exercises control over the work activities or (2) the general contractor retains control over a critical variable in the workplace.  Id. at 643, 693 N.E.2d at 243-244.

In the instant case, appellant asserts that appellee, as the general contractor, retained and exercised exclusive control over a critical variable in the working  environment, i.e., the metal staircase frame, without temporary safety railing.   Appellant notes that temporary safety railing is required by OSHA, the Ohio Administrative Code, and the industry custom.   However, appellant alleges that appellee removed the temporary safety railing and that appellant's accident occurred before appellee installed the permanent railings.

We find that, notwithstanding the fact that appellee did not actively participate in the specific job activities of appellant, there is still a genuine issue of material fact as to whether appellee is responsible for the absence of guard railing and whether the absence of guard railing constituted a critical variable in the workplace.   Appellant has presented evidence, sufficient to defeat a motion for summary judgment, that appellee retained control over the staircase (without railing) and that this was a critical variable in the workplace.   Thus, pursuant to Sopkovich, summary judgment was improper.

Consequently, these facts are not controlled by the work-activities cases of Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, 21 OBR 416, 488 N.E.2d 189;  Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629;  and Bond v. Howard Corp. (1995), 72 Ohio St.3d 332, 650 N.E.2d 416, but is a work environment case in line with Sopkovich and Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326.   This case is a work environment case, which means the appellee controlled the danger, not the employee.

Accordingly, appellant's assignment of error is sustained.   The judgment of the trial court is reversed, and this case is remanded for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.


SPELLACY, J., concurs. O'DONNELL, P.J., dissents.

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Docket No: No. 76100.

Decided: December 06, 1999

Court: Court of Appeals of Ohio,Eighth District, Cuyahoga County.

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