Pusey v. Bator

Cook, J.,

concurring in judgment only. A majority of this court holds that the provision of “armed security guards to protect property” triggers, as a matter of law, the “inherently-dangerous-work exception” to the general rule that an employer is not vicariously liable for the negligence of its independent contractor. 3 Accordingly, the majority decides that Greif Brothers may be vicariously liable if the jury finds that Eric Bator acted negligently in shooting Derrell Pusey. Although I agree with the majority’s decision to reverse the judgment and remand the cause, I would decline to hold that the work contracted by Greif Brothers to Youngstown Security Patrol (“YSP”) was “inherently dangerous” to others as a matter of Ohio law. Further, I disagree with the majority’s suggestion that Greif Brothers should be held liable for any negligence of YSP beyond the failure to take reasonable precautions against a recognized danger.

Like the majority, I agree that certain provisions of the Restatement of Torts should inform our interpretation of the scope of Ohio’s inherently-dangerous-work exception. See, generally, 2 Restatement of the Law 2d, Torts (1965), Chapter 15, Sections 409-429 (“Restatement”). Of particular significance is Section 427, which provides:

“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate *283 when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”

The Restatement emphasizes that an independent contractor’s work need not be “ ‘intrinsically’ or ‘inherently’ dangerous” in order to pose a “special danger” to others within the meaning of Section 427. Id. at 416, Comment b. “It is sufficient that work of any kind involves a risk, recognizable in advance, of physical harm to others which is inherent in the work itself, or normally to be expected in the ordinary course of the usual or prescribed way of doing it, or that the employer has special reason to contemplate such a risk under the particular circumstances under which the work is to be done.” Id.; see, also, 2 Restatement at 385-386, Section 413, Comment b (similarly defining the type of work that poses a “peculiar risk” of harm to others). Endorsing Comment b to Section 427, as well as Comment b to Section 413, the majority incorporates aspects of the Restatement’s “peculiar risk”/“special danger” doctrine into Ohio’s inherently-dangerous-work exception. 4 Relying on these concepts, the majority ultimately concludes that the provision of armed security falls within the inherently-dangerous-work exception as a matter of law.

Unlike the majority, I would decline to hold that the work contracted by Greif Brothers to YSP — premises security to deter thieves and vandals — was “inherently dangerous” to others as a matter of Ohio law. As this court has recognized, the issue of whether an employer may be liable for the negligence of an independent contractor is not always determinable as a matter of law. Rather, the question “may be one of law, or of fact, or of mixed law and fact, depending upon the circumstances of the particular case.” Warden v. Pennsylvania RR. Co. (1931), 123 Ohio St. 304, 307-308 , 175 N.E. 207, 208 . As the Warden court explained:

“The circumstances surrounding the execution of a contract by an independent contractor might be such that it could properly be stated that, as a matter of law, there would be no liability on the part of the owner. On the other hand, the circumstances might be such as to make it very clear that the owner would carry a legal responsibility for the negligence of the contractor, to be determined by the court without submission to the jury. Between these two extremes, the circumstances may be so complicated that minds might easily differ as to the danger attendant upon the execution of the work, resulting in different conclusions as to the duty of the owner to exercise care to avoid injury to third persons.” Id., 123 Ohio St. at 308 , 175 N.E. at 208 .

*284 If an independent contractor’s work is “generically hazardous,” such that the activity poses an inherent danger to others regardless of the skill with which the contractor performs the work, it is understandable how a court may find that the work falls within the inherently-dangerous-work exception as a matter of law. See Wilson v. Good Humor Corp. (C.A.D.C.1985), 757 F.2d 1293, 1303-1304 . But as the majority expressly recognizes today, the exception extends beyond such “generically hazardous” activities. Under the Restatement’s “peculiar risk”/ “special danger” doctrine, an activity may be fairly characterized as “inherently dangerous” even if it can be performed safely by taking proper precautions. See Huddleston v. Union Rural Elec. Assn. (Colo.1992), 841 P.2d 282, 290 ; see, also, Scott Fetzer Co. v. Read (Tex.App.1997), 945 S.W.2d 854, 861-862 . Specifically, the exception applies “when an employer has reason to know that his independent contractor is likely, under particular circumstances, to endanger others absent reasonable precautions.” (Emphasis sic.) Wilson, 757 F.2d at 1303 . Thus, when the activity at issue is not “generically hazardous,” the applicability of the exception “depends not only on the generic nature of an independent contractor’s work but also on the fact-specific, particular circumstances under which any task is to be performed.” Id. at 1304 .

I do not view the work YSP contracted to perform — providing security guards to protect Greif Brothers property — as falling within the “generically hazardous” branch of the inherently-dangerous-work exception. 5 Whether the presence of security guards poses a peculiar risk to others depends on the particular circumstances of the job, such as the location of the guarded premises and the likelihood of the guards being armed. See 2 Restatement at 385, Section 413, Comment b (noting that a “peculiar risk” may arise out of the “character” of the work “or out of the place where it is to be done”). But even though the provision of security is not generically hazardous, there remains a genuine issue as to whether the “special danger”/“peculiar risk” branch of the inherently-dangerous-work exception applies here.

Greif Brothers hired YSP only after it had experienced numerous thefts of property from the premises. Further, Eric Bator testified that the Greif Brothers’ property was “scary” at night, making him uneasy to be on duty *285 without a weapon when there had been “a lot of homicides in the city.” It was therefore conceivable for a reasonable jury to conclude that Greif Brothers should have recognized a risk that a security guard would likely confront individuals on its property who would be suspected — rightfully or not — of nefarious activity. The jury could also conclude that the contemplated risk was heightened by the possibility that YSP’s guards would be armed — a circumstance that Greif Brothers knew about during the course of YSP’s performance of the contract. In turn, the jury could find that these risks necessitated certain precautions by YSP, such as reasonable supervision of inexperienced guards or training related to the rules of engagement with suspected wrongdoers. Of course, the jury could also find that the security work did not pose peculiar risks or that YSP did, in fact, take reasonable precautions against risks associated with guarding Greif Brothers property. Either way, we should allow the trier of fact to decide whether the facts and circumstances surrounding this case bring YSP’s work within the purview of the “peculiar risk”/“special danger” branch of the inherently-dangerous-work exception.

Because I disagree with the majority’s characterization of security work as inherently dangerous as a matter of law in the “generically hazardous” sense of the term), I also disagree with the majority’s determination that Greif Brothers may be held vicariously liable for any negligence of Bator (or YSP) that caused Pusey’s death. Admittedly, this court’s precedent supports the imposition on the employer of vicarious liability for the independent contractor’s negligent performance of work that falls within the inherently-dangerous-work exception. See, e.g., Richman Bros. Co. v. Miller (1936), 131 Ohio St. 424 , 6 O.O. 119 , 3 N.E.2d 360 , paragraph one of the syllabus; Covington & Cincinnati Bridge Co. v. Steinbrock (1899), 61 Ohio St. 215 , 55 N.E. 618 , paragraph one of the syllabus. And indeed, I offer no disagreement with this rule when the work involved is inherently dangerous in the “generically hazardous” sense. But insofar as this court has chosen to weave the “peculiar risk”/“special danger” doctrine of the Restatement into the fabric of Ohio’s inherently-dangerous-work exception, I would more closely track the Restatement’s explanation of when the employer will be liable for physical harm caused by the independent contractor’s work.

When an employer engages an independent contractor to perform work that involves a peculiar risk or special danger to others due to the circumstances under which it is to be performed, the Restatement does not subject the employer to liability for any and all negligence of the contractor. The Restatement makes clear that the employer is not liable for any negligence of the independent contractor that is “collateral” to the contemplated risk. 2 Restatement at 413-414, Section 426 and Comment a; see, also, 2 Restatement at 417, Section 427, Comment d (noting that the rule stated in Section 427 “should be read together” with Section 426). Thus, an employer will not be liable for physical harm caused *286 by “abnormal or unusual kinds of negligence on the part of the contractor, or negligence in the performance of operative details of the work which ordinarily may be expected to be carried" out with proper care.” 2 Restatement at 414, Section 426, Comment b. The question of whether a contractor’s negligence was “collateral,” like the related issue of whether there was a peculiar risk inherent in the work being performed, is generally an issue for the trier of fact to resolve. Caudel v. E. Bay Mun. Util. Dist. (1985), 165 Cal.App.3d 1, 9 , 211 Cal.Rptr. 222, 227 .

Percy Squire and Lloyd Pierre-Louis, for appellant.

Comstock, Springer & Wilson Co., L.P.A., and William Scott Fowler, for appellee.

Furthermore, the Restatement expressly limits employer liability under the “peculiar risk” and “special danger” doctrine to physical harm caused by the contractor’s failure to take reasonable precautions against a danger contemplated by the employer. See 2 Restatement at 417, Section 427, Comment d. In other words, the liability of the employer depends not on the failure of the contractor to exercise reasonable care in performing the work but, rather, on the failure of the contractor to take a reasonable precaution against a special danger or peculiar risk that the employer should have recognized. See Saiz v. Belen School Dist. (1992), 113 N.M. 387, 395 , 827 P.2d 102, 110 . I would therefore hold that Greif Brothers may be held liable under the inherently-dangerous-work exception only if the trier of fact finds that YSP failed to take reasonable precautions against a special danger or peculiar risk that Greif Brothers should have recognized as inherent in the security work. If, on the other hand, the trier of fact finds that YSP did, in fact, take reasonable precautions against a special danger or peculiar risk, then liability should not attach.

With these reservations, I concur in the judgment.

Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing opinion.

. At least three courts have held that the provision of armed security personnel is not, in and of itself, an inherently dangerous activity. See Ross v. Texas One Partnership (Tex.App.1990), 796 S.W.2d 206, 214-215 ; Brien v. 18925 Collins Avenue Corp. (Fla.App.1970), 233 So.2d 847 , 38 A.L.R.3d 1328 ; Schreiber v. Camm (D.N.J.1994), 848 F.Supp. 1170, 1177-1180 .

. Many courts view the terms “peculiar risk” and “special danger” as being equivalent. See, e.g., Huddleston v. Union Rural Elec. Assn. (Colo.1992), 841 P.2d 282, 290, fn. 9 ; Saiz v. Belen School Dist. (1992), 113 N.M. 387, 394 , 827 P.2d 102, 109 , in. 6.

. In finding the inherently-dangerous-work exception applicable as a matter of law, the majority emphasizes that Greif Brothers hired YSP to provide armed guards. As the majority itself acknowledges, however, the contract between Greif Brothers and YSP did not specify whether guards were to be armed or unarmed. Indeed, one YSP employee testified that he performed services at Greif Brothers both armed and unarmed. This is not to say that YSP’s provision of armed guards is irrelevant to the fact finder’s determination of whether the security work was inherently dangerous. Whether the guards were armed is simply one of the particular facts and circumstances that the jury may consider in ultimately determining the applicability of the inherently-dangerous-work exception.