Jeffers v. Olexo

539 N.E.2d 614, 43 Ohio St. 3d 140, 1989 Ohio LEXIS 97
CourtOhio Supreme Court
DecidedJune 7, 1989
DocketNo. 88-470
StatusPublished
Cited by374 cases

This text of 539 N.E.2d 614 (Jeffers v. Olexo) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jeffers v. Olexo, 539 N.E.2d 614, 43 Ohio St. 3d 140, 1989 Ohio LEXIS 97 (Ohio 1989).

Opinions

Alice Robie Resnick, J.

We will first consider whether a question of material fact existed as to Dawes, thus making summary judgment inappropriate.

I

The court of appeals held that material questions of fact existed as to Dawes’ duty to control or retrieve the helium tanks in spite of the agreement entered into by the Campaign Committee with Dawes. This action sounds in negligence.

As to the elements of a cause of action in negligence it can be said that “[i]t is rudimentary that in order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom. Di Gildo v. Caponi (1969), 18 Ohio St. 2d 125 [47 O.O. 2d 282]; Feldman v. Howard (1967), 10 Ohio St. 2d 189 [39 O.O. 2d 228]. * * *” Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 180, 472 N.E. 2d 707, 710. See, also, Kauffman v. First-Central Trust Co. (1949), 151 Ohio St. 298, 306, 39 O.O. 137, 141, 85 N.E. 2d 796, 800.

Thus, the existence of a duty is fundamental to establishing actionable negligence. “* * * If there is no duty, then no legal liability can arise on account of negligence. Where there is no obligation of care or caution, there can be no actionable negligence.” (Footnotes omitted.) 70 Ohio Jurisprudence 3d (1986) 53-54, Negligence, Section 13. Only when one fails to discharge an existing duty can there be liability for negligence. See Di Gildo v. Caponi (1969), 18 Ohio St. 2d 125, 127, 47 O.O. 2d 282, 283, 247 N.E. 2d 732, 733.

Whether a duty exists depends largely on the foreseeability of the injury to one in the plaintiff’s position. “* * * Only when the injured person comes within the circle of those to whom injury may reasonably be anticipated does the defendant owe him a duty of care. Drew v. Gross, 112 Ohio St., 485, 489, 147 N.E., 757; Ford v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 107 Ohio St., 100, 140 N.E., 664; 29 Ohio Jurisprudence, 419, 420.” Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 338, 190 N.E. 924, 926; 70 Ohio Jurisprudence 3d (1986) 51, Negligence, Section 11. [143]*143“* * * If the actor’s conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not make the actor liable to the persons so injured.” 2 Restatement of the Law 2d, Torts (1965), Section 281, Comment c.

Hence in Menifee, supra, we focused on whether appellees therein should have foreseen that the air supply system would be used by General Electric for breathing purposes in addition to providing power for air tools. We found that the “* * * foreseeability of harm usually depends on the defendant’s knowledge.” Id. at 77, 15 OBR at 180-181, 472 N.E. 2d at 710. Because none of the appellees knew of this additional use, we held that they “could not have foreseen or reasonably anticipated the decedent’s injuries and, as a matter of law, cannot be held liable for negligence. * * *” Id. at 77, 15 OBR at 181, 472 N.E. 2d at 710.

Likewise in Clemets v. Heston (1985), 20 Ohio App. 3d 132, 138, 20 OBR 166, 172, 485 N.E. 2d 287, 294, the appellate court found that a police officer could not be liable for a man’s suicide. The court noted that no events forewarned the police officer that the man arrested was especially despondent or suicidal. “Under a broader negligence analysis, the officer had no duty to prevent that which he could not have reasonably foreseen, notwithstanding that the custodial relationship had terminated. Justice v. Rose, supra [(1957), 102 Ohio App. 482], at 485; cf. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77 (‘The existence of a duty depends on the foreseeability of the injury.’). * * *” (Emphasis sic.)

In Gedeon, supra, foreseeability again was the central issue. There, defendant’s agent stepped into the middle of traffic on a busy street, causing an accident as well as injury to plaintiff’s decedent. “In delimiting the scope of duty to exercise care, regard must be had for the probability that injury may result from the act complained of. No one is bound to take care to prevent consequences, which, in the light of human experience, are beyond the range of probability.” Id. at 338, 190 N.E. at 926.

Not only must it be shown that Dawes breached a duty to decedent but it must also be determined that Dawes’ alleged negligence proximately caused decedent’s injury. “Proximate cause is a troublesome phrase. It has a particular meaning in the law but is difficult to define. It has been defined as: ‘That which immediately precedes and produces the effect, as distinguished from a remote, mediate, or predisposing cause; that from which the fact might be expected to follow without the concurrence of any unusual circumstance; that without which the accident would not have happened, and from which the injury or a like injury might have been anticipated.’ 65 C. J.S. § 103 Negligence pp. 1130-1131. * * *” Corrigan v. E.W. Bohren Transport Co. (C.A. 6, 1968), 408 F. 2d 301, 303.

The rule of proximate cause “ ‘requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that is, such consequence as under the surrounding circumstances of the particular case might, and should have been foreseen or anticipated by the wrongdoer as likely to follow his negligent act.’ ” Ross v. Nutt (1964), 177 Ohio St. 113, 114, 29 O.O. 2d 313, 314, 203 N.E. 2d 118, 120, quoting Miller v. Baltimore & Ohio Southwestern RR. Co. (1908), 78 Ohio St. 309, 325, 85 N.E. 499, 504. See, also, Pendrey v. Barnes (1985), 18 Ohio St. 3d 27, 18 OBR 23, 479 N.E. 2d [144]*144383; cf. Strother v. Hutchinson (1981), 67 Ohio St. 2d 282, 21 O.O. 3d 177, 423 N.E. 2d 467.

The question of whether Dawes owed a duty of care to decedent thus turns on the foreseeability of the injury and whether any acts or omissions of Dawes proximately caused the death. The events preceding decedent’s death must be scrutinized in order to determine what duty, if any, Dawes owed to decedent. Upon review of these events, we find that Dawes could not reasonably have anticipated the scenario which preceded decedent’s death.

On September 5, 1984, Dawes delivered helium tanks to the Democratic Party tent so that the Campaign Committee could inflate balloons. The Campaign Committee on other occasions had rented helium tanks from Dawes and had returned them. However, the three helium tanks used by the Campaign Committee at the Belmont County Fair were not returned as others had been in the past. Instead they were left leaning against the commercial building at the fairgrounds, behind some bushes but apparently within public view and access. Neither the Agricultural Society, which owned the property on which the tanks were left, nor the School Board removed the tanks.

On September 27, 1984, the day before the incident, a member of the Campaign Committee asked Dawes for another helium tank. At that time Dawes requested the return of the prior tanks if the helium had been used.

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Bluebook (online)
539 N.E.2d 614, 43 Ohio St. 3d 140, 1989 Ohio LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeffers-v-olexo-ohio-1989.