Our first case for the month of October comes from the Court of Appeals for Ohio, Eighth Appellate District. The court was asked to determine whether a general contractor owed a subcontractor a duty to provide a reasonably safe jobsite under Ohio’s frequenter statute. Our second case comes from the Court of Appeals of Indiana where the court looked at Indiana’s version of the doctrine of implied warranty of merchantability.

Protections of Ohio’s Frequenter Statute Do Not Extend to Independent Contractor Performing an Inherently Dangerous Task

When a does a general contractor owe a subcontractor a duty to provide a reasonably safe jobsite under Ohio’s frequenter statute? Under the holding in Anderson v. Snider Cannata Co., et al, 2009-Ohio-4363, the answer to this question may be never.

In 2004, Aaron Anderson was painting a house that was under construction when he stepped backwards into an open stairwell. Anderson fall down into a basement and suffered significant injuries. He sued the general contractor and carpentry subcontractor claiming that they had a duty to keep the construction site reasonably safe under Ohio’s frequenter statute and that they were negligent for failing to erect a barrier around the stairwell.

Ohio’s frequenter statute, R.C. 4101.11, requires an employer to provide a safe workplace, to not only its employees, but also to non-employees, or “frequenters,” who may go in or be on the employer’s premises. Courts in Ohio, however, have carved out several exceptions to the liability created by the frequenter statute related to independent contractors.

In Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, the Ohio Supreme Court refused to extend the general duty of employers to provide a reasonably safe workplace to independent contractors who undertake work on a premise that is “an inherently dangerous task.” Moreover, in McClary v. M/I Schottenstein Homes, Inc., 2004-Ohio-7047, the court refused to attach liability to an owner of a premise when the independent contractor or its employee is aware that real or potential dangers surround the performance of the task being performed.

In addition, in Ganobcik v. Industrial First, Inc. (1991), 72 Ohio App. 3d 619, the court held that the duties created under the frequenter statute do not apply unless the employer is in exclusive custody or control of the premises.

The Eighth District Court closely evaluated Anderson’s claim under these exceptions. First, the court found that painting on a construction site is inherently dangerous for the simple reason that a construction site is “an inherently dangerous setting.”

Further, the court found that Anderson knew of the dangerous condition at the stairwell because he admitted that he had been painting the interior of the house for at least five days prior to the accident and had even painted the trim on the floor around the stairwell opening.

The court found that Anderson could not show who, if anybody, was in exclusive control of the project because Anderson could not remember any supervisors’ names, could not say who was the general contractor, and could not identify anyone who had custody or control over the premise.

The appellate court thus found that the general contractor and carpentry subcontractor did not owe Anderson a duty to provide a reasonably safe worksite and were not responsible for Anderson’s injuries that resulted from his fall through the open stairwell.

Indiana Homeowners Recover Under the Doctrine of Implied Warranty of Merchantability

The implied warranty of merchantability is a legal doctrine where the seller warrants that a good is fit for the ordinary purpose for which it is used. The Court of Appeals of Indiana in Irmscher Suppliers, Inc. v. Schuler, 909 N.E.2d 1040, upheld a decision of a lower court that allowed homeowners to recover against a window supplier and a manufacturer for a breach of implied warranty of merchantability in a case involving defective window screens.

In Schuler, the homeowners purchased 32 windows with Rolscreens when they remodeled their country home. Rolscreens are screens that can be rolled down to prevent the entry of insects or rolled up to allow for an aesthetic view. Prior to the remodel, the homeowners experienced normal numbers of insects in their home. After the remodel, however, the homeowners experienced an unusually high number of insects in their home. The homeowners attributed the increased number of insect to the new windows. The homeowners contacted the supplier of the windows in order to resolve the insect problem. The supplier attempted to resolve the problem, but nothing the supplier did succeeded in keeping the insects out of the house. The supplier eventually contacted the manufacturer to determine a solution.

The homeowners supplied a videotape of the insects entering a window. Upon inspecting the videotape, an employee of the manufacturer determined that the Rolscreens were defectively designed.

The concept of implied warranty of merchantability is set forth within the Uniform Commercial Code and is adopted in Indiana under Indiana Code § 26-1-2- 314(1). Indiana code provides “a warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind,” and also, “for goods to be merchantable, they must at least be such as are fit for the ordinary purposes for which such goods are used.” In summary, there is a doctrine implied in the law that the seller warrants that goods are fit for the ordinary purposes for which they are used.

To prove a breach of implied warranty of merchantability, a party may introduce evidence that a product fails to meet the industry standard or show that “the good is not fit for the ordinary purposes for which it was used.”

The ordinary purpose of windows is to provide a view to the outside while keeping the elements and insects out. Windows that do not keep insects out do not conform to the ordinary purpose of windows. By introducing videotaped evidence of insects entering the home through the Rolscreens and evidence of the supplier and manufacturer declaring that the design was defective, the homeowners showed that the windows did, in fact, breach an implied warranty of merchantability.

In Ohio, this warranty is adopted in Revised Code § 1302.27.