This month we have two cases from the Ohio Court of Claims both involving the Ohio Department of Transportation (ODOT). In the first case, the court was asked to determine if ODOT had a duty to regulate jobsite safety for the protection of the contractor’s employees. The court stated that under Ohio law, an owner owes no duty to an employee of an independent contractor to ensure such employee’s safety unless the owner actively participates in the contractor’s work. In our second case, the issue before the court was whether the routing of stormwater flow from a highway onto private property was an unreasonable interference with the flow of surface water. The court applied the reasonable use doctrine to balance the gravity of the harm with the utility of the defendant’s conduct.

Court Determines Owner Is Not Responsible for Safety of Contractor’s Employee

In Poneris et al. v. ODOT, 2009-Ohio-7104, the Ohio Court of Claims determined that an owner of a construction project is not liable for the safety of an employee of a contractor where the owner only maintains a supervisory role over the project and does not actively direct or exercise control over the work.

In Poneris, ODOT entered into a contract with A&L Painting for A&L to perform painting work on the Lorain-Carnegie Bridge Project. The Plaintiff in this case was an employee of A&L Painting and was assigned to the Lorain-Carnegie Bridge Project. As part of his job responsibilities on the project, the employee was required to perform work on scaffolding that was not equipped with guardrails. The employee also alleged that he was not provided with any safety harness or other personal protective devices for the work he was performing on the project. While working on the project, the employee fell from the scaffolding to the decking below and suffered bodily injuries.

Following the accident, the employee filed a complaint against ODOT for damages related to his injuries. The employee alleged that ODOT negligently failed to ensure that he was provided with adequate personal protective gear for the work he was performing on the project. The employee further alleged that ODOT was contractually responsible for protecting employees of contractors working for ODOT.

The employee’s theory of liability against ODOT was twofold. First, the employee argued that because ODOT had a duty to enforce safety measures to protect ODOT’s own employees, ODOT also owed the employee a duty to make sure he had the proper safety equipment. Second, the employee argued that terms and conditions in the contract between ODOT and A&L imposed the responsibility for project safety on ODOT.

Specifically, the employee argued that because the contract between ODOT and A&L included a provision whereby ODOT reserved the right to suspend work on the project if ODOT determined that conditions on the project were unsafe, ODOT had the responsibility to regulate workplace safety and to ascertain whether the work was performed in a manner that would not unduly harm A&L’s employees.

ODOT disputed the employee’s allegations and interpretation of the contract. Specifically, it was ODOT’s position that the contract between ODOT and A&L imposed a duty upon A&L to provide safety measures for its own employees working on the project and that ODOT owed no duty to the employee for safety protection on the project.

The court ultimately did not agree with the employee’s allegations and ruled in favor of ODOT. In finding for ODOT, the court stated that under Ohio law, an owner owes no duty to an employee of an independent contractor to ensure such employee’s safety unless the owner actively participates in the contractor’s work. The court went on to say that active participation occurs when the owner “directs or exercises control over the work or a critical element of the work” as opposed to exercising a general supervisory role.

Although the contract in the present case stated that ODOT would monitor the progress of the work and retain supervisory authority over the project, these actions do not constitute active participation by ODOT. Therefore, because A&L had sole responsibility under the contract for the safety of the workers, including the Plaintiff, the claims against ODOT were dismissed.

Surface Water Discharges and the Reasonable Use Doctrine

Litigation over the flow of surface water from one property to another is nothing new. Where surface water flows from one property to another, courts determine whether a party breached a duty to its neighbor by applying the reasonable use doctrine. Ohio is no different. Long ago, the Supreme Court of Ohio implemented the reasonable use doctrine to resolve such surface water disputes.

The Court of Claims of Ohio recently dealt with the issue of trespass of surface water in Schultz v. Ohio Department of Transportation, 2010 Ohio Misc. LEXIS 6. In Schultz, a property owner living near a newly constructed highway bypass brought a trespass claim against the State of Ohio based on the routing of stormwater flow from the highway onto private property. Using the reasonable use doctrine, the court determined that the property owner failed to prove that the direction of stormwater was an unreasonable interference with the flow of surface water. The State, therefore, was not negligent for alleged damages due to stormwater discharge.

Unwanted surface water discharge from one property to another generally invokes the tort claim of negligence—even where a plaintiff claims nuisance or trespass. To prove negligence, a plaintiff must demonstrate that a defendant owed the plaintiff a duty, the defendant breached that duty, the plaintiff suffered some sort of harm, and the harm was proximately caused by the defendants breach of its duty. In cases involving surface water discharge, a court must determine that the breach was unreasonable in order to find the possessor of land liable in such a negligence action.

Under the reasonable use doctrine, a possessor of land may not discharge surface water anywhere he or she wishes. The law, however, does not prohibit the possessor of land from altering the natural flow of surface water to the detriment of other property owners. A possessor of land is “legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered… and causes some harm to others….” In such a situation, the possessor of land incurs liability only where his or her interference is unreasonable.

The court determines whether there is an unreasonable interference by “balancing the gravity of the harm caused by the interference against the utility of the defendant’s conduct.” Cases involving the flow of surface water are typically fact dependant. The facts in Schultz were especially straight forward.

The plaintiffs failed to prove that, absent the highway, surface water would flow away from the property. In addition, the property was located at the base of a valley. As a result, water naturally accumulated on the property. Based on eyewitness testimony, the court found that the flow from the highway did not unreasonably contribute to the accumulation of water on the property.