In Circelli v. Keenan Constr. (10th Dist. 2006), 165 Ohio App. 3d 494, Truberry Group was hired to construct a new home for Harold McClune. Truberry served as the general contractor and subcontracted with Keenan Construction to build the frame of the house and with Frank Circelli to install the plumbing. As part of its responsibilities, Keenan installed a temporary prefabricated staircase from the first floor of the home to the basement. The staircase collapsed as Circelli and McClune were descending, and Circelli sustained physical injuries from the twelve-foot fall.
Circelli alleged that Keenan negligently installed the staircase and that Truberry violated its duty to keep the premises safe and either negligently installed the staircase or caused them to be negligently installed. The Court of Appeals for the 10th District addressed the claim against Keenan first. The “frequenter” statutes, specifically R.C. 4101.11, impose an affirmative duty upon an employer to keep its property in a reasonably safe condition for the welfare of its employees and frequenters of the workplace. However, an independent contractor who lacks a contractual relationship with a second independent contractor owes no affirmative duty beyond that of ordinary care to the employees of the second independent contractor as long as the first contractor does not supervise or actively participate in the work of the second contractor. The court held that engaging in work on the same premises does not implicate the frequenter statute. The court found, however, that there was a question of fact as to whether Keenan exercised ordinary care while installing the stairs. Thus, sustaining Keenan’s motion for summary judgment was improper. The court did not address the second issue as to whether Truberry owed a duty to Circelli, its subcontractor, because the denial of the motion for summary judgment did not constitute a final appealable order.