[Cite as Phillips v. Am. Elec. Power Co., 2011-Ohio-6731.] STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
MATTHEW PATRICK PHILLIPS, et al. ) CASE NO. 10 JE 13 ) PLAINTIFFS-APPELLANTS ) ) VS. ) OPINION ) AMERICAN ELECTRIC POWER, et al. ) ) DEFENDANTS-APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio Case Nos. 07 CV 684; 09 CV 226
JUDGMENT: Affirmed.
APPEARANCES: For Plaintiffs-Appellants: Atty. Frank Bruzzese Bruzzese & Calabria P.O. Box 1506 100 N. Fourth Street Steubenville, Ohio 43952
For Defendant-Appellee: Atty. Karen E. Kahle Asplundh Tree Expert Co. Steptoe & Johns, PLLC 1233 Main Street, Suite 3000 P.O. Box 751 Wheeling, WV 26003
Atty. Amy M. Smith Steptoe & Johns, PLLC Chase Tower – Sixth Floor P.O. Box 2190 Clarksburg, WV 26302-2190
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: December 22, 2011 [Cite as Phillips v. Am. Elec. Power Co., 2011-Ohio-6731.] WAITE, P.J.
{¶1} Appellant, Matthew Patrick Phillips (“Matthew” or “Appellant”), by and
through his duly appointed guardians, Paula and Martin Phillips, appeals the entry of
summary judgment against him and in favor of Appellee, Asplundh Tree Expert
Company (“Asplundh” or “Appellee”), by the Jefferson County Court of Common
Pleas in this negligence action. In 2007, Matthew suffered severe injuries allegedly
caused by a short circuit in a 7200-volt distribution line owned by Defendant, Ohio
Power Company dba American Electric Power Ohio (“AEP”). Appellants contend that
a rotted and hollow wild cherry tree fell onto the overhead primary line of AEP’s
electrical power distribution system in the woods behind Matthew’s home, which
started a chain of events that proximately caused his injuries. Appellants further
contend that AEP and Asplundh, one of AEP’s independent contractors hired for
tree-trimming purposes, failed to inspect, trim, and manage the tree at issue in this
case in conformity with AEP’s vegetation management program policies and industry
standards.
{¶2} The record fails to show that Appellee, as an independent contractor,
was directed by AEP to perform tree service in the area in which the tree at issue
was located; was obligated under its contract with AEP to independently determine
which parts of AEP's distribution circuit were to be trimmed; or that Appellee actually
participated in any decision-making process regarding AEP's vegetation
management plan that would have affected the tree at issue. Appellants cannot
establish evidence of any duty owed by Appellee to Matthew, and without proof of
such a duty there can be no negligence. The judgment of the trial court is affirmed. -2-
History of the Case
{¶3} On March 1, 2007, a thunderstorm occurred in the area where
Appellant Matthew Phillips and his parents, Martin and Paula Phillips lived. Their
house was located in the Stanton Woods subdivision of Wintersville, Ohio. During
the storm, a branch from a tree fell across an Ohio Power electrical distribution line
located behind the Phillips' home. Severance of the line caused a power outage at
the Phillips' home. Matthew and his father attempted to power their home by means
of a portable electric generator. In the process of trying to operate the portable
generator, Matthew received an electrical shock and suffered very severe injuries,
including permanent brain injuries.
{¶4} On December 31, 2007, Appellants sued American Electric Power
Company, Inc., AEP Ohio, Ohio Power Co., Ohio Power Company Inc., AEP Energy
Services Inc., and Columbus Southern Power Co. The defendants will be collectively
referred to as AEP or the AEP defendants. On November 7, 2008, Appellants
amended their complaint to add Asplundh as a defendant. On April 29, 2009,
Appellants filed a separate cause of action against American Electric Power Service
Corporation (“AEP-SC”). Asplundh’s connection to the AEP defendants was through
AEP-SC, in that the two defendants had entered into a contract on April 9, 2002, for
Asplundh to perform right of way tree maintenance services.
{¶5} Appellants’ theory as to how Asplundh’s liability for Matthew’s injuries,
as far as we are able to surmise, is as follows. Appellants allege that a severe
thunderstorm blew down one or more rotted trees or branches behind their home. -3-
The fallen trees or branches apparently hit an AEP power line, causing the power to
go out at Appellants’ residence. This caused them to try to connect their portable
generator. The power line in this case consists of two main wires; one of the wires is
traditionally designated as the “hot” wire, and the other as neutral. Appellants allege
that the two wires became coupled due to the fallen branches, creating a completed
electrical circuit. Appellants theorize that the electricity from this circuit somehow
traveled around the electrical transformer on the pole outside Appellants’ house,
bypassed the grounding wires located at the pole, traveled down the service line to
Appellants’ house, through the meter box, into their breaker box, bypassed the
grounding line at the breaker box, traveled through the ground circuit wiring of the
house, went around an electrical generator transfer switch installed by Appellants,
continued through the grounding line to a secondary electrical outlet box, and then
connected to the metal chassis of the outlet box. Appellants then posit a variety of
theories as to how the electricity passed through Matthew via the outlet box, the
portable generator, or from the ground.
{¶6} On December 13, 2010, Appellants entered into a settlement with all of
the AEP defendants except for Asplundh, and all claims against those defendants
were dismissed. This settlement included the dismissal of all claims against AEP-
SC, with whom Asplundh had contracted to do right of way tree maintenance. The
only claims remaining in the lawsuit were directed at Appellee.
{¶7} Appellants’ complaint raises a variety of claims against Asplundh.
Appellants asserted an ordinary negligence claim, alleging that Asplundh failed to -4-
maintain AEP's easement, failed to remove foreseeable safety hazards, and failed to
fulfill its contractual duties to inspect and manage vegetation for AEP. Appellants
allege that they were subjected to an ultra-hazardous danger by Asplundh's
recklessness. Appellants allege that Asplundh breached a duty imposed by safety
statutes and regulations regarding electrical and hazardous substances and
vegetation management. Appellants argue that Asplundh failed to warn, prevent or
remedy unnamed defects. Finally, Appellants claim that Asplundh caused them to be
exposed to hazardous or toxic substances. Appellants’ allegations against Asplundh
are intrinsically connected to the contract to perform right of way maintenance. Thus,
the overall claim is for negligent or reckless performance of a contract. Every claim
raised by Appellants is dependent on the existence and terms of the contract. The
issue on appeal is whether summary judgment was properly granted to Asplundh on
the grounds that Asplundh owed no duty of care to Appellants (and therefore
breached no duty of care) in light of the contract that Asplundh entered into with
AEP-SC.
{¶8} On February 8, 2010, Appellee filed a motion for summary judgment.
Appellee argued that it owed no duty of care to Matthew because AEP determined
the locations at which Appellee was assigned to work, and because AEP never
assigned Asplundh to inspect or service the area at issue in this case. On May 10,
2010, the trial court granted Appellee’s motion for summary judgment. The trial court
found no evidence of a duty owed by Asplundh to Appellants: -5-
{¶9} “The record contains no evidence that the Defendant Ohio Power
Company or the AEP Defendants assigned Defendant Asplundh to work on the
portion of the electrical circuit in the area of the tree which allegedly caused the
injuries to the Plaintiff. Nor have the Plaintiffs produced evidence that it was the
responsibility, or duty, of Defendant Asplundh to determine which parts of the AEP
distribution circuit were to be trimmed. Rather the evidence establishes that, at most,
the AEP Defendants determined what trimming was to be done and then would
assign that work to Defendant Asplundh.
{¶10} “The record contains no evidence that Defendant Asplundh created a
condition which caused the subject tree to fall or failed to trim said tree after being put
on notice, in any manner, of the need or obligation to trim said tree.” (5/10/10 J.E., p.
2.)
{¶11} The trial court issued a nunc pro tunc judgment entry on May 25, 2010,
adding the “no just reason for delay” language required by Civ.R. 54(B) in order that
the judgment would be final and appealable. This appeal followed.
{¶12} In the first eight of Appellants’ assignments of error they argue that
summary judgment was inappropriate based on a duty on the part of Appellee toward
Appellants, either contractual or implied. For this reason, they will be addressed
together for the purposes of judicial economy. The ninth assignment of error deals
with the question of joint liability and will be treated separately.
Summary Judgment Standard -6-
{¶13} An appellate court conducts a de novo review of a trial court’s decision
to grant summary judgment, using the same standards as the trial court as set forth
in Civ.R. 56(C). Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671
N.E.2d 241. Before summary judgment can be granted, the trial court must
determine that (1) no genuine issue as to any material fact 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 the
evidence most favorably in favor of the party against whom the motion for summary
judgment is made, the conclusion is adverse to that party. Temple v. Wean United,
Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267. When a court considers a
motion for summary judgment, the facts must be taken in the light most favorable to
the nonmoving party. Id.
{¶14} “[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party's claim.” (Emphasis deleted.) Dresher v. Burt (1996), 75 Ohio
St.3d 280, 296, 662 N.E.2d 264. If the moving party carries its burden, the
nonmoving party has the reciprocal burden of setting forth specific facts showing that
there is a genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, in the
face of a properly supported motion for summary judgment, the nonmoving party
must produce some evidence that suggests that a reasonable factfinder could rule in -7-
that party’s favor. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378,
386, 701 N.E.2d 1023.
ASSIGNMENT OF ERROR NO. 1
{¶15} “DUTY TO INSPECT—ASPLUNDH NEGLIGENTLY FAILED TO
INSPECT THE VEGETATION WHICH OBVIOUSLY THREATENED THE POWER
LINES”
ASSIGNMENT OF ERROR NO. 2
{¶16} “AN ACT OF OMISSION CAN BE NEGLIGENCE”
ASSIGNMENT OF ERROR NO. 3
{¶17} “THE TRIAL COURT ERRED WHEN IT HELD THAT ASPLUNDH
OWED NO DUTY AS A MATTER OF LAW”
ASSIGNMENT OF ERROR NO. 4
{¶18} “FORESEEABILITY—ASPLUNDH HAD A DUTY TO ANTICIPATE”
ASSIGNMENT OF ERROR NO. 5
{¶19} “ASPLUNDH WAS ALLOWED TO TRIM THE TREE—THE TREE
OWNER HAS NO CONTROL OR DUTY”
ASSIGNMENT OF ERROR NO. 6
{¶20} “THE DEFENDANTS WERE FIGHTING AMONG THEMSELVES-
THEREBY CREATING AN ISSUE OF FACT”
ASSIGNMENT OF ERROR NO. 7
{¶21} “THE HAZARDS OF TREES KNOCKING DOWN POWER LINES AND
RESULTANT ELECTRICAL SHOCK INJURY ARE FORESEEABLE” -8-
ASSIGNMENT OF ERROR NO. 8
{¶22} “DUTY TO TRIM TREES. BOTH—THE UTILITY AND TREE-
TRIMMING CONTRACTOR HAVE THE DUTY TO IDENTIFY AND TRIM DANGER
[SIC] TREES”
{¶23} The crux of Appellants’ appeal is their fundamental disagreement with
the trial court’s conclusion that Asplundh owed no duty of care to them. The parties
in this case agree that if no duty of care is owed, then the trial court properly granted
summary judgment to Asplundh. The existence of a duty of care is fundamental to a
negligence claim: “It 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. The existence of a duty depends on the foreseeability of the
injury.” (Citations omitted.) Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio
St.3d 75, 77, 472 N.E.2d 707. “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.” Commerce &
Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98, 543 N.E.2d 1188.
{¶24} Appellants contend that Asplundh did owe them a duty of care, despite
the absence of anything specific in the Asplundh contract that would have required
the removal of the tree that apparently fell in Appellants’ yard. Appellants contend
that Asplundh should have inspected the area near their home because there had
been many prior electrical outages in their general area. They contend that Asplundh
was involved in the decision-making process to select which of AEP’s circuit areas -9-
were to be trimmed each year, despite the evidence establishing that AEP and its
related companies, alone, made the final decisions about where Asplundh would
conduct its vegetation maintenance and trimming. Appellants contend that
Asplundh’s authority to make suggestions at their annual meeting with AEP to
determine vegetation maintenance gave rise to a duty to protect Appellants from a
dangerous tree in the vicinity of their yard. Appellants appear to argue that
Asplundh’s failure to convince AEP to conduct tree maintenance on or near
Appellants’ property is itself a form of negligence. Appellants submit that it was
Asplundh’s failure to act that was the breach of their duty of care, and that the trial
court erred by finding no proof Appellee owed them a duty of care and, thus, that
there was no negligence. None of these arguments are supported by this record.
{¶25} In this case, the claim against Asplundh is one of failure to act.
Appellants take issue with Appellees’ failure to inspect Appellants’ power lines and
failure to remove the tree that supposedly fell and began the complicated chain of
events leading to Matthew’s injury. In a case of nonfeasance, the existence of a
legal duty is critical and, unless a duty is established, the defendant's failure to act
cannot and does not create liability. Clemets v. Heston (1985), 20 Ohio App.3d 132,
135, 20 OBR 166, 485 N.E.2d 287; Taylor v. Continental Cas. Co. (1945), 75 Ohio
App. 299, 61 N.E.2d 919. The existence of a duty is a question of law for a court to
determine. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265.
{¶26} Relevant to the motion for summary judgment were the depositions of
Ernest DiBacco, one of Appellee’s general foremen; Michael Chedester, a forestry -10-
supervisor for AEP; and Andrew Mitchell, a service field forester for AEP. Appellants
do not appear to contest the fact that Chedester and Mitchell were responsible on
AEP’s behalf for the Wintersville/Wintersville circuit that included Appellants’ home.
We again note that Appellants have settled their claims against all of the AEP
defendants, and Asplundh is the sole remaining defendant in this case.
{¶27} Chedester explained that the selection of circuits to be serviced
involved an elaborate process at the start of each work year. (Chedester Depo., p.
21.) Chedester and his supervisors, in conjunction with systems distribution
supervisors at AEP, would “analyze data, historical data regarding a circuit’s
particular performance regarding various causes of power interruptions, including
vegetation.” He testified that “collaboratively, [they] would reach an agreement on a
work plan for a set group of circuits, or areas within circuits.” (Chedester Depo., p.
21.) According to Chedester, Appellee only works where it is told to work by
representatives of AEP. (Chedester Depo., pp. 107, 190-191.)
{¶28} According to Chedester, Appellee was the sole source for tree-trimming
services to AEP from 2002 to the present. (Chedester Depo., pp. 106-107.)
Chedester also testified that there was no record of any inspection of the Stanton
Woods subdivision distribution line by an AEP employee between 2002 and 2007.
(Chedester Depo., p. 40.) Chedester stated that the last foot patrol that he could
recall with certainty that was conducted in the Wintersville/Wintersville circuit (which
services Appellants) was in 1998. (Chedester Depo., p. 59.) Nelson Tree Service,
Appellee’s direct predecessor in performing tree-trimming maintenance, conducted -11-
the 1998 foot patrol pursuant to a cyclic program that was abolished in 2000-2001
based on changes in management philosophy. (Chedester Depo., pp. 186-188.)
{¶29} Mitchell testified that Appellee was never assigned to trim trees in the
Stanton Woods subdivision. (Mitchell Depo., p. 78.) Mitchell further testified that
Appellee was to patrol only those areas identified by AEP. (Mitchell Depo., p. 32.)
He testified that it was Mr. Chedester who decided the circuits and partial circuits that
would be trimmed each year. (Mitchell Depo., p. 17.) This decision was solely in the
hands of Mr. Chedester, and was made prior to the annual meeting that was set to
map out the work plan for the year. (Mitchell Depo., p. 17.) AEP devoted their
attention to the 8% of circuits with the worst performance in the previous year.
(Mitchell Depo., p. 10.) AEP would then prioritize the list based on a variety of
criteria. (Mitchell Depo., p. 14.) AEP assigned work only to certain well-defined
sections of the circuit. (Mitchell Depo., p. 16.) AEP would prioritize the work it
wanted to have done, and then mark these work areas on maps. (Mitchell Depo., pp.
15-16.) Asplundh was instructed to take these maps and perform only the work that
was marked on the maps. (Mitchell Depo., p. 15.) Mitchell testified that Asplundh
could not trim areas outside the map, and that there was no independent decision-
making or freelancing involved on Asplundh’s part. (Mitchell Depo., p. 31.)
{¶30} Andrew DiBacco testified that AEP made the decisions regarding which
circuits were the worst performing circuits, not Asplundh. (DiBacco Depo., p. 86.) He
further stated that AEP alone made the decisions regarding what work Asplundh was
to perform each year. (DiBacco Depo., p. 14.) AEP prepares maps for Asplundh -12-
marking the worst performing areas, and Asplundh would work in those areas.
(DiBacco Depo., p. 15.) He also testified that within these assigned areas Asplundh
work crews could decide which individual trees would be cut down or not. (DiBacco
Depo, p. 92.) He noted that some Asplundh workers could add their suggestions and
input at the annual planning meeting to decide what vegetation maintenance would
take place for the year. (DiBacco Depo., pp. 85-86.)
{¶31} Appellants rely primarily on the deposition testimony of these three men
to attempt to establish that Asplundh owed a duty to trim the tree in their yard and
prevent the accident that occurred. However, this testimony does not support
Appellants’ conclusion. The testimony establishes that AEP, not Asplundh, made the
decision regarding which circuit areas to trim, and Appellants’ home was never
included in Asplundh’s assigned work areas. While some of Asplundh’s employees
may have made suggestions at the annual planning meetings, the record clearly
reflects that the final decision was made by AEP, and there is no evidence of record
to contradict this conclusion. Actually, the testimony indicates that the decision as to
which circuits to include in the yearly maintenance was made prior to the annual
meeting.
{¶32} As earlier mentioned, the circuit encompassing Appellants’ residence is
referred to as the Wintersville/Wintersville circuit. It contains 23 miles of power lines.
Appellants’ house is located in Stanton Woods subdivision of the
Wintersville/Wintersville circuit. The testimony of Mr. Chedester and Mr. Mitchell
were in agreement that AEP never assigned Asplundh to work in the Stanton Woods -13-
subdivision prior to the accident on March 1, 2007. The record reflects that Asplundh
was assigned to inspect the area only on May 1, 2007, two months after Matthew’s
accident. The previous Stanton Woods subdivision inspection was conducted in
1998, and that inspection did not involve Asplundh, but rather, Nelson Tree Service,
Asplundh’s predecessor.
{¶33} Appellee correctly states that it could not have a duty to trim a tree in
Appellants’ yard unless it first had a right to do so, and there are very specific
statutes which prohibit a person from cutting, removing or injuring trees on private
property. See, e.g., R.C. 901.51. If Appellee had no contractual authority to act as
AEP’s agent and enter the area where the tree was located, it would not only have
been trespassing to have entered the property, but Asplundh would have risked
committing a fourth degree misdemeanor crime and may have been liable for treble
damages. R.C. 901.51.
{¶34} Appellants argue a number of times that Matthew’s injury was
foreseeable, and that the foreseeability of the injury in and of itself creates a duty for
Appellee to remove the dangerous trees in and around their yard. This argument is
incorrect. “[F]oreseeability alone is not always sufficient to establish the existence of
a duty.” Estates of Morgan v. Fairfield Family Counseling Ctr. (1997), 77 Ohio St.3d
284, 293, 673 N.E.2d 1311. This is especially true in nonfeasance situations in
which the plaintiff is alleging that the defendant failed to affirmatively act to come to
aid of a person in danger or failed to prevent a third party from harming another.
Littleton v. Good Samaritan Hosp. & Health Center (1988), 39 Ohio St.3d 86, 92, 529 -14-
N.E.2d 449; Gonzalez v. Posner, 10th Dist. No. F-09-107, 2010-Ohio-2117, ¶13-15.
In such situations, a duty arises only if the defendant shares a “special relation” with
the plaintiff or the third person that justifies the imposition of the duty. Estates of
Morgan, supra, at 293-294; Fed. Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45
Ohio St.3d 171, 173, 543 N.E.2d 769. In this appeal, the alleged relationship
between Appellee Asplundh and Appellants only exists by virtue of the tree-trimming
contract between Asplundh and AEP. No amount of foreseeability can create a
contractual duty where none otherwise exists. Appellants’ reliance on the
foreseeability of Matthew’s injury is misplaced and cannot support a reversal of the
trial court’s judgment.
{¶35} Appellants also argue that Asplundh had actual notice of the dangerous
tree, but they have not submitted any proof such notice exists. Even if actual notice
was proven in the record, this would not establish the existence of a duty. Actual
notice relates to foreseeability, and as previously stated, foreseeability alone does
not create a duty or liability for negligence. “Under the law of negligence, a
defendant's duty to a plaintiff depends upon the relationship between the parties and
the foreseeability of injury to someone in the plaintiff's position.” Simmers v. Bentley
Constr. Co. (1992), 64 Ohio St.3d 642, 645, 597 N.E.2d 504.
{¶36} Appellants rely on Brady-Fray v. Toledo Edison Co., 6th Dist. No. L-02-
1260, 2003-Ohio-3422, in an attempt to claim that Asplundh can be held liable for
failure to properly trim trees and branches. In Brady-Fray, the plaintiff, Steven
Kampfer, was electrocuted when he attempted to trim some dead tree limbs near a -15-
power line owned by Toledo Edison. Asplundh was under contract to conduct tree-
trimming services for Toledo Edison. The evidence was clear in Brady-Fray that
Asplundh was under a contractual duty to inspect and maintain the area where the
accident occurred: “It is also undisputed that Edison contracted with Asplundh to trim
trees in the area of the Kampfer properties.” Id. at ¶24. This single fact distinguishes
Brady-Fray from the instant appeal and renders it inapplicable, because in the matter
before us there is no evidence that Asplundh was under any contractual obligation to
inspect or trim trees at or near Appellants’ home. In fact, the evidence reflects just
the opposite.
{¶37} Appellee has interpreted Appellants’ arguments as an attempt to
impose some type of rescue requirement, or some duty to take positive action in aid
of another regardless of the relationship of the parties. This does appear to be
Appellants’ theory, and this theory is not consistent with Ohio law. “The law imposes
a duty to refrain from active misconduct that causes a positive injury to others, but
does not impose a duty to take affirmative action to aid or protect another.” Homan v.
George (1998), 127 Ohio App.3d 472, 475, 713 N.E.2d 432. As we have previously
stated: “The general rule is that a person owes no duty to act for the protection of
others: ‘The fact that the actor realizes or should realize that action on his part is
necessary for another's aid or protection does not of itself impose upon him a duty to
take such action.’ Restatement of the Law 2d, Torts (1965), Section 314.” Mullins v.
Comprehensive Pediatric & Adult Medicine, Inc., 7th Dist. No. 07 MA 144, 2009-
Ohio-1310, ¶76. Although negligence can occur through a failure to act when one -16-
has a duty to act, a plaintiff must still prove at the outset that there was a duty to act.
The fact that a tree maintenance contractor such as Asplundh may be able to help
prevent potential harm from old or rotting trees does not create a duty to do so.
{¶38} Appellants have not established that Appellee Asplundh had a duty to
inspect or trim the tree that allegedly caused the accident on March 1, 2007. The
decision as to where Asplundh was to perform its contract for vegetation
maintenance services was determined solely by the AEP defendants, and they are
no longer a part of this case. The record reveals that Asplundh was not assigned to
trim vegetation near Appellants’ home. The mere fact that Asplundh might have
been able to trim the tree outside of its contractual duties, or may even have known
that a tree may be a potential hazard, does not create a duty to act. Appellants’ first
eight assignments of error are without merit and are overruled.
ASSIGNMENT OF ERROR NO. 9
{¶39} “THE LIABILITY OF THE AEP DEFENDANTS AND ASPLUNDH IS
JOINT LIABILITY.”
{¶40} Appellants argue that joint liability exists between Asplundh and AEP in
this matter. Appellants cite Logsdon v. Main-Nottingham Inv. Co. (1956), 103 Ohio
App. 233, 141 N.E.2d 216, in support of their argument. Logsdon is a landlord/tenant
case involving facts that are difficult to correlate to the facts in the instant appeal.
More importantly, however, Appellants entered into a settlement involving all claims
and disputes against AEP, AEP Ohio, Ohio Power Company, and American Electric -17-
Power Service Corporation. These claims were dismissed on December 13, 2010,
pursuant to the settlement. Hence, any issue involving joint liability is now moot.
{¶41} In addition, no liability exists for the principal if the agent who is alleged
to have committed the negligence has no liability. Comer v. Risko, 106 Ohio St.3d
185, 2005-Ohio-4559, 833 N.E.2d 712, ¶20. As the trial court correctly determined
that Asplundh (the agent) owed no duty to Appellants, the record reflects no
negligence and, thus, no secondary liability on the part of AEP. Appellants’ ninth
assignment of error is overruled.
Conclusion
{¶42} The trial court correctly concluded that Asplundh was under no
contractual obligation to investigate or perform tree maintenance services in the area
of Appellants’ residence where this unquestionably tragic accident occurred. There is
no other basis on which to find that Asplundh owed a duty to Appellants. Without the
existence of a duty, there can be no finding that negligence occurred. Appellants’
first eight assignments of error deal in one respect or another with the duty element
of a negligence claim. Because there is no proof in this record that a duty existed,
the trial court was correct in its judgment. Appellants’ first eight assignments of error
are overruled. In Appellants’ ninth assignment of error they assert that there is joint
liability between AEP and Asplundh. The record reveals that the AEP defendants
have been dismissed from the matter. Therefore, the issue of joint liability is moot.
The judgment of the trial court is affirmed.
Donofrio, J., concurs. -18-
Vukovich, J., concurs.
APPROVED:
_____________________________ CHERYL L. WAITE, JUDGE