Burned by Cement on a Hired Job in Ohio With No Protective Gear: Who Can Be Liable

Attorney Answer

The honest answer is that a claim against the man who hired you is hard in Ohio, and it depends on how the job was set up. Someone who hires independent contractors is generally not liable for a hazard that comes with the work itself unless he directed the activity that caused the injury. If you were in effect his employees and he was outside the workers' compensation system, he can be sued directly without his usual defenses. A claim against the cement's maker for an inadequate warning is a separate route either way.

If you were independent contractors. The Supreme Court of Ohio held in Bond v. Howard Corp., 72 Ohio St.3d 332, 650 N.E.2d 416 (1995), that one who hires a contractor owes no duty to protect against the hazards of inherently dangerous work unless he actively participated, meaning he directed the activity that caused the injury or gave or denied permission for the critical acts that led to it, rather than just supervising generally. The worker lost in that case. And in Eicher v. United States Steel Corp., 32 Ohio St.3d 248, 512 N.E.2d 1165 (1987), the court held that Ohio's statutory duty to keep workplaces safe does not extend to hazards inherently present in the work when the injured person works for an independent contractor; the owner there had not supplied the worker a face mask, and still won. That statute is Ohio Rev. Code § 4101.11:

Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.

So the questions are what the hirer controlled: whether he chose the material and dictated how you mixed and laid it, whether he refused gear you asked for, and what he knew about the risk that you did not.

If you were his employees. Workers' compensation applies only if he is an employer under its definition, Ohio Rev. Code § 4123.01(B)(1):

(B)(1) "Employer" means:

(b) Every person, firm, professional employer organization, alternate employer organization, and private corporation, including any public service corporation, that (i) has in service one or more employees or shared employees regularly in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written, or (ii) is bound by any such contract of hire or by any other written contract, to pay into the insurance fund the premiums provided by this chapter.

A person who hires for one job may not have employees “regularly”, and for construction work § 4123.01(A)(1)(c) lists factors that decide whether a worker counts as an employee. If he is an employer and was not in the system, Ohio Rev. Code § 4123.77 applies:

Private employers who fail to comply with section 4123.35 of the Revised Code are not entitled to the benefits of sections 4123.01 to 4123.94, inclusive, of the Revised Code, during the period of such noncompliance, but are liable to their employees for damages suffered by reason of personal injuries sustained in the course of employment caused by the wrongful act, neglect, or default of the employer, or any of the employer's officers, agents, or employees, and also to the personal representatives of such employees where death results from such injuries, and in such action the defendant shall not avail self of the following common law defenses:

(A) The defense of the fellow servant rule;

(B) The defense of the assumption of risk;

(C) The defense of contributory negligence.

A claim against the cement's maker. Ohio Rev. Code § 2307.76(A):

(A) Subject to divisions (B) and (C) of this section, a product is defective due to inadequate warning or instruction if either of the following applies:

(1) It is defective due to inadequate warning or instruction at the time of marketing if, when it left the control of its manufacturer, both of the following applied:

(a) The manufacturer knew or, in the exercise of reasonable care, should have known about a risk that is associated with the product and that allegedly caused harm for which the claimant seeks to recover compensatory damages;

(b) The manufacturer failed to provide the warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk, in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover compensatory damages and in light of the likely seriousness of that harm.

But § 2307.76(B):

(B) A product is not defective due to lack of warning or instruction or inadequate warning or instruction as a result of the failure of its manufacturer to warn or instruct about an open and obvious risk or a risk that is a matter of common knowledge.

Whether the label adequately warned about skin contact, and whether the risk was open and obvious, decide that route.

What you can do

1. Get medical care for the burns and keep every record and bill.

2. Keep the cement bag or container and its label, with photos, and the receipt showing who bought it.

3. Write down how the job was arranged: who found the work, who set the hours, who supplied the materials and tools, how you were paid, and who decided how the cement was mixed and laid.

4. Save the online ad and all messages with the man who hired you.

5. Even if you are handling this yourself, you would be best served by a brief phone consultation with a local Ohio attorney before you act. Most lawyers offer a short initial call at no cost, and a few minutes on your specific facts — and on how your court actually handles this — is worth more than any general guidance, including this page.

⏱ Time limits apply. A claim for bodily injury, including a product claim, must be filed within two years under Ohio Rev. Code § 2305.10(A). A workers' compensation claim, if that route applies, has a one-year deadline under Ohio Rev. Code § 4123.84(A).