Opinion

Hirschbach v. Cincinnati Gas & Electric Co.

  • 6 Ohio St. 3d 206
  • 6 Ohio B. 259
  • 452 N.E.2d 326
  • 1983 Ohio LEXIS 807
Court
Ohio Supreme Court
Filed
Aug 10, 1983
Status
Published
Author
Locher
On the bench
Brown, Celebrezze, Holmes, Locher, Resnick, Sixth, Sweeney
Cited by
124 cases
Authority
More cited than 15.1%

finding active participation where the defendant’s inspector specifically denied the request of the independent contractor’s employees to re-position a winch tractor, resulting in the plaintiffs injury

How later courts described this case

  • finding active participation where the defendant’s inspector specifically denied the request of the independent contractor’s employees to re-position a winch tractor, resulting in the plaintiffs injury
  • explaining that “actual participation” includes retaining “sole control over the safety features necessary to eliminate the hazard”
  • where the owner directed the manner in which an independent contractor performed an inherently dangerous job
  • “By denying the Wagner-Smith crew its request to reposition the winch tractor … CG & E actually participated in the job operation by dictating the manner and mode in which the winching phase of the job was to be performed.”

Written by the judges who cited it.

Distinguished

  • Distinguished by Dramble v. Marc W. Lawrence Bldg. Corp., Unpublished Decision (9-10-2002) (2002)

    Appellant, therefore, argues that the "actual participation" exception ofHirschbach was inapplicable to this case, thereby leaving appellant without a duty to appellee, pursuant to Wellman.
    Ohio Court of AppealsSep 10, 2002Read it
  • Distinguished by Church v. Whirlpool Corp., 727 F. Supp. 355 (1989)

    Hirschbach is distinguishable on its facts as imposing liability on one who engages the services of an independent contractor where he actually participates in the job operation performed by the contractor’s employee and thereby fails to eliminate a hazard which could have been eliminated in the exercise of ordinary care.
    District Court, N.D. OhioFeb 28, 1989Read it
  • Distinguished by Marshall v. Aaron, 15 Ohio St. 3d 48 (1984)

    Co. (1983), 6 Ohio St. 3d 206, is distinguishable from the instant cause.
    Ohio Supreme CourtDec 28, 1984Read it

The opinion

Locher, J.,

dissenting. I share the conclusions expressed by Justice William B. Brown in his dissent and, thus, cannot join with the majority in its decision. Moreover, I must further reject the court’s analysis for the reasons articulated in the dissent in Anderson v. Ceccardi (1983), 6 Ohio St. 3d 110 , as I do not believe that the enactment of R.C. 2315.19 resulted in the merger of the defense of assumption of risk with that of contributory negligence.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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