[Cite as Martin v. Lambert, 2014-Ohio-715.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
BREWCE MARTIN, : : Plaintiff-Appellant, : Case No. 12CA7 : v. : : RAY LAMBERT, : DECISION AND JUDGMENT ENTRY : Defendant-Appellee. : : RELEASED: 2/25/14 ________________________________________________________________ APPEARANCES:
Janet G. Abaray, Calvin S. Tregre, Jr., and David C. Harman, BURG SIMPSON ELDREDGE HERSH & JARDINE, P.C., Cincinnati, Ohio, for Appellant.
Deborah J. Mandt, Columbus, Ohio, for Appellee. ________________________________________________________________ Harsha, J.
{¶1} Brewce Martin suffered an injury on property Ray Lambert owned,
but had allowed his son to use as an automobile service center. Martin appeals
a summary judgment in Lambert’s1 favor on Martin’s negligence and negligent
entrustment claims. Martin argues the trial court erred as a matter of law
because Lambert owed Martin a duty to warn him of the son’s unsafe business
practices and incompetency to operate an automobile service center. Martin
additionally contends that genuine issues of material fact remain about whether
Lambert breached his duty to exercise reasonable care and whether Lambert’s
breach of duty proximately caused Martin’s injuries. Because Lambert did not
occupy or control his son’s business premises, Lambert did not owe Martin a
1 Unless the context suggests otherwise, “Lambert” refers to Ray Lambert. Meigs App. No. 12CA7 2
duty to protect Martin from the conduct or condition that caused Martin's injury.
Consequently, the trial court properly entered summary judgment in Lambert’s
favor on Martin’s negligence claim.
{¶2} Martin also asserts that Lambert negligently entrusted the business
premises to his son. Martin claims Lambert’s son lacked the experience and
expertise to operate an automobile service center; thus, allowing the son to use
the premises resulted in an inherent danger. Even if we agree with Martin that a
landowner may be liable under a negligent entrustment theory when entrusting
real property to another for an inherently dangerous use, as a matter of law
Lambert’s son’s automobile service center was not inherently dangerous.
Accordingly, we overrule Martin’s assignment of error and affirm the trial court’s
judgment.
I. FACTS
{¶3} After purchasing a used truck, Martin needed to put new rims on it.
He removed the existing rims and tires and looked in his collection of rims to find
suitable ones to put on the truck. Martin believed he chose four 16-inch rims, but
he mistakenly chose four 16.5-inch rims. Martin then took his 16.5-inch rims and
16-inch tires to Rutland Service Center in order to have the tires placed on the
rims.
{¶4} Shawn Lambert, Ray Lambert’s son, owned and operated Rutland
Service Center, although Ray Lambert owned the property where the business
was located. The Lamberts did not enter into any formal written or verbal
agreement governing this relationship, but Ray allowed Shawn to open the Meigs App. No. 12CA7 3
business in 2003. Shawn had owned and operated it, rent-free, continuously
since that time.
{¶5} When Martin arrived at Rutland for the “ten[th] to a hundred[th]
time,” he instructed Shawn to put the tires on the rims he brought to the shop. At
the time no one recognized that the rims and the tires were mismatched. Martin
entered the service area and assisted Shawn with mounting the tires. As Martin
used an air hose while attempting to place one of the 16-inch tires on a 16.5-inch
rim, the tire exploded and injured Martin.
{¶6} Martin subsequently filed a complaint against Ray Lambert and
alleged that Lambert failed to maintain the premises in a reasonably safe
condition and that he negligently entrusted the premises to his son.
{¶7} Lambert filed a summary judgment motion and conceded that
Martin was a business invitee and that Lambert owed him a duty to warn of any
latent dangers Martin himself had created. However, Lambert asserted he did
not own, operate, or control the business but merely owned the land. Therefore,
he could not be held liable for Martin’s injury, which occurred on his son’s
business premises and arose out of his son’s business operation. Essentially,
Lambert contended that he did not owe any duty to Martin for the premises or
conditions outside his control. Lambert also denied that he negligently entrusted
the property to his son.
{¶8} The trial court granted Lambert’s summary judgment motion. The
court determined that Lambert did not negligently entrust the building to his son
and that Lambert was not negligent under a premises liability theory because “an Meigs App. No. 12CA7 4
owner of property [does not have] a duty to warn invitees about the alleged
incompetency of its tenants.”
II. ASSIGNMENT OF ERROR
Appellant raises one assignment of error:
“The trial court erred to the prejudice of plaintiff-appellant in granting defendant-appellee’s motion for summary judgment.”
III. ANALYSIS
{¶9} In his sole assignment of error, Martin argues that the trial court
erred by entering summary judgment in Lambert’s favor. Although he raises
several reasons why the court improperly entered summary judgment in
Lambert’s favor, we find the question of Lambert’s duty to be dispositive of this
case.
{¶10} Martin contends that the court incorrectly determined that Lambert
did not owe him a duty. Martin asserts that Lambert, the owner of the property
upon which Martin suffered his injury, owed him a duty to exercise ordinary care
and to protect Martin by maintaining the premises in a reasonably safe condition
and by warning him of any dangers of which Lambert had knowledge. Martin
argues that this duty required Lambert to warn Martin of his son’s alleged
inexperience and incompetence, which Martin asserts was a defect in the
premises. Martin claims that Lambert owed him this duty even though Lambert
did not own or operate his son’s business. Martin contends that because
Lambert was the ultimate owner of the property where his son operated the
business, Lambert necessarily maintained control of the business premises and Meigs App. No. 12CA7 5
thus had a duty to warn Martin of the latent danger associated with his son’s
alleged incompetency. Martin argues that the landlord-out-of-possession-and-
control exception does not absolve Lambert of liability for negligence because
Lambert and his son had not entered into a formal lease agreement.
{¶11} Martin also argues that Lambert may be liable for negligently
entrusting the property to his son for an alleged inherently dangerous use.
{¶12} Lambert agrees that Martin was a business invitee and that
Lambert owed Martin a duty to warn of “any latent or hidden danger with regard
to the building or grounds.” However, Lambert contends this duty is limited to the
buildings or grounds that Lambert occupied and controlled but does not extend to
any buildings or grounds that he merely owned and permitted his son to use.
Lambert asserts that he did not owe Martin any duty relating to his son’s
business or business premises because Lambert did not own or have any control
over his son’s business operation, which was the ultimate cause of Martin’s
injury.
{¶13} Lambert also asserts that his son's business operation is not an
inherently dangerous use as a matter of law, so negligent entrustment does not
apply.
A. STANDARD OF REVIEW
{¶14} We review a trial court’s summary judgment decision using a de
novo standard of review. Comer v. Risko, 106 Ohio St.3d 185, 2005–Ohio–4559,
833 N.E.2d 712, ¶8. Under Civ.R. 56, a trial court may grant summary judgment
when the movant establishes that “‘(1) [n]o genuine issue as to any material fact Meigs App. No. 12CA7 6
remains to be litigated; (2) the moving party is entitled to judgment as a matter of
law; and (3) it appears from the evidence that reasonable minds can come to but
one conclusion, and viewing such evidence most strongly in favor of the party
against whom the motion for summary judgment is made, that conclusion is
adverse to that party.’” M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-
5336, 979 N.E.2d 1261, ¶12, quoting Temple v. Wean United, Inc., 50 Ohio St.2d
317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C); accord Esber Beverage
Co. v. Labatt USA Operating Co., L.L.C., --- Ohio St.3d ---, 2013-Ohio-4544, ---
N.E.2d ---, ¶9.
B. NEGLIGENCE
{¶15} A successful negligence action requires a plaintiff to establish that
(1) the defendant owed the plaintiff a duty of care; (2) the defendant breached
the duty of care; and (3) as a direct and proximate result of the defendant’s
breach, the plaintiff suffered injury. E.g., Texler v. D.O. Summers Cleaners, 81
Ohio St.3d 677, 680, 693 N.E.2d 217 (1998); Jeffers v. Olexo, 43 Ohio St.3d 140,
142, 539 N.E.2d 614 (1989); Menifee v. Ohio Welding Products, Inc., 15 Ohio
St.3d 75, 472 N.E.2d 707 (1984). If a defendant points to evidence illustrating
that the plaintiff will be unable to prove any one of the foregoing elements, and if
the plaintiff fails to respond as Civ.R.56 provides, the defendant is entitled to
judgment as a matter of law. Lang v. Holly Hill Motel, Inc., 4th Dist. Jackson No.
06CA18, 2007–Ohio–3898, ¶19, affirmed, 122 Ohio St.3d 120, 2009–Ohio–2495,
909 N.E.2d 120.
1. DUTY Meigs App. No. 12CA7 7
{¶16} Duty is a threshold question in a negligence case. Armstrong v.
Best Buy Co., Inc., 99 Ohio St.3d 79, 2003–Ohio–2573, 788 N.E.2d 1088 ¶13;
Jackson v. Pike County Bd. Of Commr., 4th Dist. Pike No. 10CA805, 2010-Ohio-
4875, 2010 WL 3902618, ¶15. “’Duty, as used in Ohio tort law, refers to the
relationship between the plaintiff and the defendant from which arises an
obligation on the part of the defendant to exercise due care toward the plaintiff.’”
Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773
N.E.2d 1018, ¶23, quoting Commerce & Industry Ins. Co. v. Toledo, 45 Ohio
St.3d 96, 98, 543 N.E.2d 1188 (1989). “’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.’” Jeffers, 43 Ohio St.3d at 142,
quoting 70 Ohio Jurisprudence 3d (1986) 53–54, Negligence, Section 13
(footnotes omitted).
{¶17} The existence of a duty is a question of law for a court to decide,
even if resolving that question requires the court to consider the facts or
evidence. Grover v. Eli Lilly & Co., 63 Ohio St.3d 756, 762, 591 N.E.2d 696
(1992); Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989);
Ruta v. Breckenridge–Remy Co., 69 Ohio St.2d 66, 68, 23 O.O.3d 115, 430
N.E.2d 935 (1982) (“Simply because resolution of a question of law involves a
consideration of the evidence does not mean that the question of law is
converted into a question of fact or that a factual issue is raised.”); O’Day v.
Webb, 29 Ohio St.2d 215, 219, 280 N.E.2d 896 (1972) (“[A] review of the
evidence is more often than not vital to the resolution of a question of law. But Meigs App. No. 12CA7 8
the fact that a question of law involves a consideration of the facts or the
evidence does not turn it into a question of fact.”).
{¶18} In a premises liability case, the relationship between the owner or
occupier of the premises and the injured party determines the duty owed. E.g.,
Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662
N.E.2d 287 (1996); Shump v. First Continental–Robinwood Assocs., 71 Ohio
St.3d 414, 417, 644 N.E.2d 291 (1994). A business premises owner or occupier
owes its invitees a duty to exercise ordinary care to maintain its premises in a
reasonably safe condition and to warn invitees of known latent or hidden
dangers. E.g., Armstrong at ¶5; Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio
St.3d 203, 203, 480 N.E.2d 474 (1985); Ray v. Wal-Mart Stores, Inc., --- Ohio
App.3d ---, 2013-Ohio-2684, 993 N.E.2d 808 (4th Dist.), ¶18. However, this “duty
does not extend to premises not in the possession and control of the business
owner.” Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130, 135, 652 N.E.2d
702 (1995).
{¶19} In this case, the parties agree that Lambert was the owner of the
property, that his son occupied the premises and owned the business where
Martin suffered his injury, and that Martin was his son’s business invitee.
Lambert further agrees that he owed Martin a duty of care applicable to business
invitees. However, Lambert asserts that his duty to keep the premises in a
reasonably safe condition extends only to the premises he occupied and
controlled. Lambert contends that he did not owe Martin any duty relating to
conditions that arose after he passed control of the premises to his son. Lambert Meigs App. No. 12CA7 9
thus argues that because he did not occupy or control his son’s automobile
service center—the premises upon which Martin suffered his injury—then he did
not owe Martin a duty.
2. LANDOWNER’S DUTY
{¶20} “Historically, a landowner’s liability in tort is incident to the
occupation or control of the land, which involves the owner’s right and power to
admit and exclude people from the premises.” Simmers v. Bentley Constr. Co.,
64 Ohio St.3d 642, 644-645, 597 N.E.2d 504 (1992); Torchik v. Boyce, 121 Ohio
St.3d 440, 2009-Ohio-1248, 905 N.E.2d 179, ¶12 (“A landowner’s or occupier’s
liability in tort to persons injured upon their premises is based on the owner’s or
occupier’s power and right to admit people to the premises and to exclude people
from it.”). “It is fundamental that to have a duty to keep premises safe for others
one must be in possession and control of the premises.” Simpson, 73 Ohio St.3d
at 132. “Courts have consistently required control as a predicate to liability
because the possessor of land is in the best position to diminish the danger to
invitees.” Id. at 133. Thus, a landowner who has “neither possession nor control
of premises is ordinarily not liable for damages resulting from the condition of the
premises.” Hendrix v. Eighth and Walnut Corp., 1 Ohio St.3d 205, 207, 438
N.E.2d 1149 (1982); Beaney v. Carlson (1963), 174 Ohio St. 409, 411, 189
N.E.2d 880, 881 (“Liability is an incident of occupation or control of the
premises.”); Simpson at syllabus (stating that business owner’s duty extends only
to premises “in the possession and control of the business owner”).
{¶21} “The test to be applied in determining control has been expressed Meigs App. No. 12CA7 10
as ‘the power and right to admit people to the premises and to exclude people
from it, and involves a substantial exercise of that right and power.’” Simpson, 73
Ohio St.3d at 132, quoting Wills v. Frank Hoover Supply, 26 Ohio St.3d 186, 188,
497 N.E.2d 1118 (1986); accord Mitchell v. Cleveland Elec. Illum. Co., 30 Ohio
St.3d 92, 94, 507 N.E.2d 352 (1987) (“The control necessary as the basis for tort
liability implies the power and the right to admit people to the premises and to
exclude people from it and the substantial exercise of that right and power.”).
“The quantum of control necessary for premises liability is one that is physical
and actual, and not one that is merely legal or theoretical.” Monnin v. Fifth Third
Bank of Miami Valley, N.A., 103 Ohio App.3d 213, 222, 658 N.E.2d 1140 (2nd
Dist.,1995).
{¶22} “Because one person is usually both the owner and possessor of
real estate, in many premises liability cases no question arises as to who has the
responsibility to maintain a premises in a safe condition.” Shump, 71 Ohio St.3d
at 417. However, when “a party other than the owner possesses a premises (as
in the case of a leased premises), under the common law of premises liability,
the possessor or occupier and not the owner owes the applicable legal duty to
the entrant.” Id. (citations omitted).
{¶23} Thus, “’[a]t common law, subject to certain exceptions, the occupier
or tenant, and not the landlord, [is] liable for injuries occurring to a third person on
or off the premises. * * * A tenant in possession is practically the owner of the
property. If the building afterwards becomes dangerous in law, the owner [is] not
liable for an injury occurring thereon.’” Kauffman v. First Central Trust Co., 151 Meigs App. No. 12CA7 11
Ohio St. 298, 304, 85 N.E.2d 796 (1949), quoting Harte v. Jones, 287 Pa. 37, 39,
134 A. 467; Grieser v. Huntington Nat. Bank of Columbus, 176 Ohio St. 291, 295,
199 N.E.2d 556 (1964), quoting 32 Am.Jur. 695, Section 817 (“’A tenant having
control of the demised premises is, so far as third persons or the public are
concerned, the owner, and in the cases of injuries to third parties, whether on or
off the premises occasioned by the condition or the use of the premises, it is the
general rule that prima facie, the breach of duty, and therefore the liability, is that
of the tenant and not that of the landlord.’”). Accordingly, “[t]he duty of a
[commercial] landlord to keep the demised premises or part of them in repair is
coextensive with the control retained by him * * *.” Beaney v. Carlson, 174 Ohio
St. 409, 412, 189 N.E.2d 880 (1964), quoting 32 Am.Jur. 654, Section 768;
Grieser, 176 Ohio St. at 293, quoting Shindelbeck v. Moon, 32 Ohio St. 264, 30
Am. Rep. 584 (1877) (“’A landlord who has demised property, parting with
possession and control thereof to a tenant in occupation, is not responsible for
injuries arising from defective condition of such premises, when that defect arises
during the continuance of the lease.’”); Rosen v. Concordia Evangelical Lutheran
Church, Inc., 111 Ohio App. 54, 58, 167 N.E.2d 671 (8th Dist., 1960) (“[A]
landlord out of possession and control owes no duty, either towards his tenant or
toward any other person who enters on the premises during the tenancy, to take
care that the premises are safe, either at the commencement of the tenancy or
during its continuance unless there be concealment of known dangers not readily
discoverable”). Moreover, a commercial landlord will not be liable for injuries a
third person sustains on the tenant’s premises if the landlord is “in no way linked Meigs App. No. 12CA7 12
with management or direction of the affairs being conducted on such premises.”
Kauffman, 151 Ohio St. at 305.
{¶24} To exercise control over the property sufficient to impose liability,
the landlord must do more than retain authority over “routine and common acts
by a landlord [such as having the authority to approve or disapprove any
structural changes, being responsible for making repairs, and having the power
to evict the tenant] * * *.” Richeson v. Leist, 12th Dist. Warren No. CA2006-11-
138, 2007-Ohio-3610, ¶15; Hendrix, 1 Ohio St.3d at 207 (stating that reserving a
right to inspect the premises to enter the premises to make repairs “does not
justify a finding that the lessor retained control of the premises”); accord
Monahan v. Duke Realty Corp., 1st Dist. Hamilton No. C-070318, 2008-Ohio-
1113, ¶23 (“[N]either the reserved right of inspection nor the agreement of the
lessor to make repairs is sufficient to impose liability on a commercial landlord for
injuries to a third person on the premises.”). Instead, to have possession and
control over the premises, the landlord must “retain an absolute right to admit or
exclude persons from the area.” Monahan at ¶22; accord Richeson at ¶15 (“The
control necessary as the basis for liability in tort implies the power and right to
admit people to an area on the leased premises and to exclude people from it.”).
{¶25} In Grieser, for instance, the court refused to impose liability upon
the property owners when they did not occupy or control the premises. In that
case, the tenant (Mrs. Wilders) leased property from the fee owners and then, in
turn, rented part of the property to a third party. The third party died as a result of
inhaling carbon monoxide fumes from a heater that Mrs. Wilders’ husband had Meigs App. No. 12CA7 13
installed twenty-four years earlier. The Grieser court refused to impose liability
on the fee owners and explained: “[T]he fee owners of the property, out of
possession and control, knew nothing about the existing conditions, including the
presence of the heaters, had no right to intrude into the premises, and were
under no obligation to manage and supervise the activities being conducted
there.” Id. The court further ruled that the fee owners’ “right to terminate the
tenancy after the expiration of the renewed lease did not” affect their non-liability.
Id.
{¶26} In Currier v. Penn-Ohio Logistics, 187 Ohio App.3d 32, 2010-Ohio-
198, 931 N.E.2d 129 (11th Dist.), an employee suffered fatal injuries while
working on premises that his employer leased. The employee’s estate
subsequently filed a negligence complaint against the landlord and others. The
trial court entered summary judgment in the landlord’s favor, determining that the
landlord did not retain possession and control even though the landlord often
visited the premises and retained the right to inspect the premises and establish
rules. The appellate court affirmed the trial court’s judgment and noted that no
evidence existed that the landlord retained the right to admit or exclude
individuals from the premises or ever exercised such a right. “[T]he retention of
control on the part of the landlord that * * * gives rise to liability to third parties
require[s] actual, physical control, not just a legal right to control.” Id. at ¶28.
The court explained: “[I]n order for a commercial landlord to be held to have
retained possession and control of the leased premises based on his retention of
the right to give consent to additions or alterations, it must be demonstrated that Meigs App. No. 12CA7 14
the landlord actually exercised physical control; it is not sufficient that he merely
retained the legal or technical right to give consent to alterations or additions. Id.
at ¶31.
{¶27} In Monnin v. Fifth Third Bank of Miami Valley, N.A., 103 Ohio
App.3d 213, 658 N.E.2d 1140 (2nd Dist.,1995), the court refused to impose
liability upon the holding company that owned—but did not operate—a bank
branch. In Monnin, Fifth Third Bank of Miami Valley owned and operated a
branch that Fifth Third Bank of Cincinnati and Fifth Third Bankcorp owned as the
holding company. The plaintiffs asserted that the holding company was liable for
two individuals’ death resulting from an armed robbery, which the plaintiffs
asserted resulted from a lack of appropriate security measures undertaken at the
branch. The appellate court determined that the holding company could not be
liable because no evidence existed that it “had control over the decisions
regarding security at the * * * branch * * *, that this control was sufficient to
exclude people from the [branch] premises, and that [the holding company was]
in fact exercising that power.” Id. at 222.
{¶28} Here, Martin’s attempt to hold Lambert liable for injuries suffered on
the business premises that his son occupied is nearly identical to the plaintiffs’
attempts to impose liability on the holding company in Monnin and the property
owners in Grieser and Currier. In both Monnin and this case, someone other
than the occupier of the business premises held ultimate ownership of the
property and retained some degree of legal authority over it. However, just as in
Monnin, in this case there is no evidence that Lambert ever substantially Meigs App. No. 12CA7 15
exercised any right he possessed to exclude or admit people from the premises
or otherwise exercised any degree of control over his son’s business. Indeed, as
Martin readily admits, Lambert took a “hands-off approach to his son’s business.”
{¶29} Furthermore, even if Lambert retained the right to remove his son
from the property, this right to terminate the tenancy does not constitute the
control necessary to impose a duty upon him. Grieser. Likewise, any theoretical
rights of control that Lambert retained do not demonstrate “control.” Currier.
Instead, for Lambert to have a duty to Martin for injuries suffered on Lambert’s
son’s business premises, Lambert must have “actually exercised physical
control,” not simply theoretical control, over the property. Currier. Even if
Lambert retained a right to inspect his son’s business operation or premises, to
establish rules, or to consent to additions or alterations to the premises, his
retention of these rights does not demonstrate that he exercised “control” so as
to give rise to liability for Martin’s injuries. Currier; accord Simpson v. Big Bear,
73 Ohio St.3d at 132 (holding that property owner must substantially exercise
right of control before liability may be imposed). There is no evidence that
Lambert ever substantially exercised any rights of control. In fact as already
noted, Martin never even argues that Lambert substantially exercised any right of
control. Martin’s assertions are based upon theoretical possibilities only—what
Lambert could have done. Although Lambert theoretically could have excluded
third parties from the premises or theoretically could have told his son what he
could and could not do with regard to the business, there simply is no evidence
that Lambert ever did so. Thus, because Lambert did not actually or Meigs App. No. 12CA7 16
substantially exercise any control over the premises, he did not “control” them for
purposes of premises liability. Monnin, 103 Ohio App.3d at 222 (stating that
“quantum of control necessary for premises liability is one that is physical and
actual, and not one that is merely legal or theoretical”).
{¶30} Additionally, like Grieser, here Martin’s injury resulted from a
condition that the property owner did not create. In Grieser, the tenant created
the alleged danger, i.e., the heater; likewise in the case at bar, Lambert’s son
created the alleged danger, i.e., the son’s failure to recognize that Martin
requested the son to inflate 16-inch tires on 16.5-inch rims. This supposed
dangerous condition of the premises arose during Lambert’s son’s tenancy, did
not pre-date the tenancy, and was not a pre-existing condition on the premises.
Consequently, Lambert cannot be liable for an alleged hazard that arose during
his son’s tenancy. Instead, Lambert’s son, the tenant, owed a duty to Martin and
bears liability for any negligence arising from an alleged hazardous condition that
the son created.
{¶31} Martin nonetheless argues that the following facts demonstrate that
Lambert “[w]ithout question * * * retained ownership, possession, and control of
the property at all times:” (1) Lambert admits that he allowed his son to use the
building; (2) Lambert agrees that he and his son did not enter into a written lease;
and (3) Lambert admits that he owns the building but he does not have a
business relationship with Rutland; and (4) Lambert admits that he and his son
had not entered into any lease. Martin argues that these facts create a genuine
issue of material fact as to whether Lambert retained control over his son’s Meigs App. No. 12CA7 17
automobile service center, the employees, or the equipment. As a matter of law
none of these facts, even if disputed, demonstrate the quantum of control
necessary to impose a duty upon Lambert as the property owner. None of these
facts show that Lambert actually or substantially exercised control over the
business premises. Even though Martin asserts that he “has argued throughout
this case that Ray Lambert maintained sole control over his property, including
control of the Rutland Service Center,” this is a conclusory allegation. The record
does not contain any facts to show that Lambert maintained sole control over his
son’s business premises or any “control” sufficient to impose liability. As noted
above, the facts Martin claims show that Lambert exercised sole control are not
sufficient as a matter of law to constitute the “control” necessary to impose a duty
upon Lambert.
{¶32} In sum, absolutely nothing in the record shows that Lambert
actually or substantially exercised control over his son’s business operation or
business premises. Under these circumstances, Lambert was not in possession
and control of the premises upon which Martin suffered his injury. Consequently,
Lambert did not owe Martin a duty concerning Martin's injury on those premises.
{¶33} Moreover, even though Martin argues that Lambert was not a
landlord and thus that the out-of-possession-and-control doctrine does not apply,
this doctrine is not limited to the landlord-tenant situation. Instead, the principle
is applicable to a landowner as well as a landlord (at least in the commercial
setting). Simmers, 64 Ohio St.3d at 644-645 (“a landowner’s liability in tort”);
Simpson, 73 Ohio St.3d at 132 (stating that “one must be in possession and Meigs App. No. 12CA7 18
control”); Beaney v. Carlson, supra; Wolfe v. Bison Baseball, Inc., 10th Dist.
Franklin No. 09AP-905, 2010-Ohio-1390, ¶8 (“landowner’s liability in tort”).
Furthermore, in Simpson the Ohio Supreme Court set forth the rule in terms of a
“business owner’s” duty to a business invitee—it did not state the rule in terms of
the landowner’s duty to a business invitee when the landowner is not also the
business owner. The court stated: “A business owner has a duty to warn or
protect its business invitees * * *.” Id. at syllabus (emphasis added). Cf.
Restatement of the Law 2d, Torts 170, Section 328E (1965)2 (defining
“possessor” as “a person who is in occupation of the land with intent to control
it”); Grieser, 176 Ohio St. at 294-295 (construing term “owner” for purposes of
statute that imposed duties upon “owners and operators of shops and factories”
to prevent injuries to third persons “and came to the conclusion that the term,
‘owner,’ meant and comprehended the one conducting and in control of the
business activities being conducted on the premises and not the owner in fee of
the premises out of possession and control thereof”).
{¶34} Even if this exception were limited to the landlord-tenant situation,
the facts demonstrate that the legal effect of Lambert’s and his son’s relationship
was that of landlord and tenant. “[I]n the absence of a written, enforceable lease,
a tenancy at will is created.” Reid v. Plainsboro Partners III, 10th Dist. Nos.
2 The Restatement (Third) of Torts is intended to replace the Restatement (Second) of Torts. It has been drafted in various stages with the most recent release being the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010). However, the Ohio Supreme Court has not adopted any of its provisions. In fact, the Ohio Supreme Court continues to apply the Restatement (Second) of Torts. Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. Meigs App. No. 12CA7 19
09AP-442 and 09AP-456, 2010-Ohio-4373, ¶33; accord New York Life Ins. Co. v.
Simplex Products Corp., 135 Ohio St. 501, 507, 21 N.E. 585 (1939) (noting that
any person who occupies premises “under bare permission” is a tenant at will).
Lambert gave his son “bare permission” to use the property for a business
purpose. Consequently, his son became a tenant at will and a tenancy at will
existed.
{¶35} Martin additionally asserts that Lambert is liable for failing to protect
him from his son’s reasonably foreseeable negligence. Martin argues that a
property owner can be liable for negligence under a premises liability theory if the
property owner fails to protect invitees from reasonably foreseeable harm
presented by third parties. The rule Martin cites states:
A breach of the standard of care can be predicated upon the action of a third party which takes place on premises which are controlled by the possessor:
“[A]n owner and occupier of land breaches his duty to invitees who are injured by the negligent acts of third persons, where such owner and occupier fails to exercise reasonable care to discover that such negligent acts of third persons are being done or are likely to be done and fails to give a warning adequate to enable such invitees to avoid harm, or fails to act to protect such invitees against such negligent acts of third parties.”
Cassano v. Antenan-Stewart, Inc., 87 Ohio App.3d 7, 9-10, 621 N.E.2d 826 (12th
Dist.,1993) (emphasis added), quoting Holdshoe v. Whinery, 14 Ohio St.2d 134,
43 O.O.2d 240, 237 N.E.2d 127 (1968), paragraph four of the syllabus.
{¶36} A plain reading of this rule shows that it relates to a different fact
pattern then that presented here. The rule provides for potential liability of a
possessor of property when a business invitee is injured on the premises by the
foreseeable act of a negligent third party. For instance, in Cassano as the Meigs App. No. 12CA7 20
plaintiff was walking on the sidewalk in front of the pharmacy, she was struck by
an automobile that had been parked in front of the store by a business invitee of
Rite Aid. While the business invitee of the pharmacy was in the store, an
occupant of the vehicle "engaged the automobile", causing it to strike the plaintiff
on the sidewalk in front of the store. The appellate court cited the rule noted by
our appellant to hold the issue of whether Rite Aid, which was the
possessor/occupier of the store, could be held liable for the injury caused by a
third person turned on whether the injury was foreseeable. Clearly the rule has
no application to our facts. First, the rule deals with those in possession of the
premises. Second, it addresses the element of a breach; it does not create a
duty. Rather it applies foreseeability to determine whether an existing duty has
been breached. Consequently, the trial court did not err by entering summary
judgment regarding Martin’s negligence claim.
C. NEGLIGENT ENTRUSTMENT
{¶37} Martin also seeks to hold Lambert liable under a negligent
entrustment theory. Martin asserts that Lambert possessed a duty because the
subject matter of the lease between Lambert and his son, i.e., the automobile
service center, involved an inherent danger when placed in the hands of
Lambert’s son, who Martin claims was inexperienced and incompetent to operate
it.
{¶38} “’The theory of negligent entrustment as a basis for liability arises
from the principle that “[a]nyone with normal experience is required to have
knowledge of the traits and habits of * * * other human beings, and to govern Meigs App. No. 12CA7 21
accordingly.” Prosser and Keeton On Torts, Fifth Ed., Chp. 5, p. 197–198. To the
extent that the negligence of another causes the harm involved, “[t]he duty arises
* * * only where a reasonable person would recognize the existence of an
unreasonable risk of harm to others through the intervention of such negligence.”
Id., at p. 199.’” Wesley v. Walraven, 4th Dist. Washington No. 12CA18, 2013-
Ohio-473, ¶45, quoting Deangelis v. Donley, 2nd Dist. Montgomery No. 17223
(Jan. 29, 1999) and assuming without deciding that negligent entrustment
doctrine applies to a person's home. We do likewise here, i.e., we assume the
doctrine applies to the business without expressly deciding so.
{¶39} Few cases have considered whether a property owner may be
liable for negligently entrusting real property to another. Some courts have held
that there is no such thing as “negligently leasing” property to another. Willis v.
Omega Oil Co., 2nd Dist. Montgomery No. 11546 (Apr. 10, 1990). As the Willis
court explained: “We do not consider land to be so inherently hazardous that an
owner can be held liable in tort for negligently entrusting possession of land to a
tenant.” Accord Long v. Tokai Bank of California, 114 Ohio App.3d 116, 127, 682
N.E.2d 1052 (2nd Dist. 1996) (refusing to hold financial lessor liable under
negligent leasing theory when lessor did not have any direct involvement with the
leased instrumentality).
{¶40} However, a case from 1978 appears to recognize the concept of
negligent leasing or negligently entrusting real property to another. Benlehr v.
Shell Oil Co., 62 Ohio App.2d 1, 6-7, 402 N.E.2d 1203 (1st Dist., 1978). In
Benlehr, the plaintiffs asserted that the landlord was liable for negligently Meigs App. No. 12CA7 22
entrusting an automobile service station to the tenant. On appeal the court
framed the issue as “whether there are activities or situations involving a risk to
the public so material that the law will impose a duty on a landlord to exercise
due care in placing the activity within the control of a tenant.” Id. The court
agreed with the plaintiffs that “the subject matter of the lease between [the
landlord] and [the tenant] was one involving a use which may fairly be said to be
either inherently dangerous, or possessed of dangerous potentialities.” Id. The
court observed that the fire chief testified regarding “the explosive potential of
gasoline” and that when combined with fire, a service station that serves as a
repository of gasoline and petroleum products “is a potential disaster are awaiting
only the congruence of the two elements.” Id. The court determined that “[t]he
act of operating a gasoline service station obviously involves a substantial risk of
harm to others.” Id. at 9. “[T]he risk of entrusting its operation to an untrained or
incompetent operator would seem to invoke a peril of a magnitude sufficient to
charge the lessor with a duty of acting reasonably to protect others from harm.”
The court thus held that when “a lessor seeks to lease property for a use which is
inherently dangerous or has highly dangerous potentialities involving a
substantial risk to the general public, and such danger or risk to the public is such
that it may be foreseen by the lessor, the lessor owes a duty of reasonable care
in selecting and entrusting such property to a lessee." Id. at 10.
{¶41} Even if we were to agree with the Benlehr court that a landlord may
be liable for negligently entrusting property involving an inherently dangerous
use, Lambert’s son’s operation of the automobile service station did not involve Meigs App. No. 12CA7 23
such a use. Sun Ins., Inc. v. Edwards, 97 Ohio App.3d 239, 243, 646 N.E.2d 535
(1st Dist., 1994) (stating that whether object is a dangerous instrumentality
constitutes a question of law); Frost v. Dayton Power and Light Co., 138 Ohio
App.3d 182, 189, 740 N.E.2d 734, fn.3 (4th Dist., 2000) (observing that whether
work is inherently dangerous is a question of law).
{¶42} Something is "inherently dangerous" when it is dangerous per se,
without requiring human intervention to produce the harmful effects. It is not the
danger arising from the collateral negligence of others under the particular
circumstances. See Black's Law Dictionary, (6th Edition 1991). Thus a business
or piece of equipment would be inherently dangerous if it was one from which the
risks cannot be eliminated.
{¶43} In Pusey v. Bator, 94 Ohio St.3d 275, 279, 762 N.E.2d 968 (2002),
the Supreme Court of Ohio determined that work is inherently dangerous when it
presents “a risk that is not a normal, routine matter of customary human activity,
such as driving an automobile, but *** rather [presents] a special danger to those
in the vicinity arising out of the particular situation created, and calling for special
precautions.” Id. at 280 (citations omitted). In other words, work is not inherently
dangerous if there is only a general anticipation of the possibility that negligence
may occur and thereby cause harm to a third party. Id. Simply because the
property owner may generally anticipate that the tenant might be negligent and
cause harm to a third party does not mean that the tenant’s occupancy and use
of the premises involves an inherent danger.
{¶44} Here, Lambert’s son’s automobile service center did not involve Meigs App. No. 12CA7 24
special risks that were inherent without human intervention; instead it involved
ordinary and customary dangers that may arise when performing automobile
services, including filling tires with air. Here Martin has not identified any specific
objects or activities within the automobile service center that were inherently
dangerous, i.e., dangerous by their very nature. An air hose may become
dangerous but it is not dangerous by its very nature. It becomes potentially
dangerous when used improperly, just as almost any tool or piece of equipment
may become dangerous if used improperly.
{¶45} Although it is foreseeable that negligence may occur when
performing the ordinary and common activities of a automobile service center,
this general anticipation does not cause the service center to be inherently
dangerous. Filling tires with air and performing routine maintenance on
automobiles does not create a special danger sufficient to conclude that the
activity is inherently dangerous. Unlike the service station in Benlehr in this case
no evidence exists that Lambert’s son’s business housed gasoline or other
explosives or that it otherwise posed a risk of serious harm to the public.
{¶46} Martin argues that the presence of signs warning customers to stay
out of the service area for safety reasons by itself shows that the business
carried the potential for inherent dangers. Martin further asserts that Shawn’s
inexperience and routine practice of permitting customers into the service area
“made the service station even more dangerous and posed a substantial risk of
harm to customers.” Neither the presence of warning signs nor Shawn’s alleged
lack of experience involves an activity or situation presenting a risk to the public Meigs App. No. 12CA7 25
so material that the law will impose a duty on a landlord to exercise due care in
placing the activity within the control of a tenant. Consequently, the trial court did
not err by entering summary judgment in Lambert’s favor regarding Martin’s
negligent entrustment claim.
{¶47} Accordingly, we overrule Martin’s assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED. Meigs App. No. 12CA7 26
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.