Wills v. Frank Hoover Supply

497 N.E.2d 1118, 26 Ohio St. 3d 186, 91 Oil & Gas Rep. 565, 26 Ohio B. 160, 1986 Ohio LEXIS 764

• Court: Ohio Supreme Court
• Decided: August 25, 1986
• Docket: No. 85-1872
• Status: Published

Opinions

Per Curiam.

The sole issue before this court is whether the trial court erred in granting the appellants’ motions for summary judgment. For the reasons set forth below, the decision of the court of appeals is reversed as to appellant Bowerston, and affirmed as to appellant Hoover.

It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the opposing party. Civ. R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317 [4 O.O.3d 466].

Liability for negligence is predicated upon injury caused by the failure to discharge a duty owed to the injured party. As such, whether the granting of summary judgment was appropriate in this case depends upon whether any disputed issues of fact exist regarding what duty of care was owed to appellees by appellants. As noted above, appellant Hoover is the owner of the oil well equipment which caused appellees’ injuries. On the other hand, appellant Bowerston is the lessor of the land upon which Brent was injured. Determination of appellants’ liability, if any, is predicated on different rules in light of their differing relationships to appellees. Accordingly, we review the propriety of the granting of their summary judgment motions separately.

I

Appellant Bowerston contends that the trial court properly granted its motion for summary judgment because Bowerston is an owner out of possession or control of the premises where the injuries to Brent occurred. As such, this appellant asserts it is not liable as a matter of law. Appellees dispute this claim arguing that Bowerston continued to exercise control over the land leased to Hoover in that Bowerston granted permission to others to cut wood on the property.

This court has stated that the test to be applied in every case involving the liability of a property owner for injuries arising from the defective condition of premises under lease to another is whether the landowner was in possession or control of the premises, or the part thereof, the disrepair of which caused the injury. Berkowitz v. Winston (1934), 128 Ohio St. 611, 612 [1 O.O. 269]. The lessor is not liable for injuries to a third party in the absence of authority to exercise control over the premises to the exclusion of any control by the lessee. Ripple v. Mahoning Natl. Bank (1944), 143 Ohio St. 614 [28 O.O. 508]. 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 involves a substantial exercise of that right and power. Cooper v. Roose (1949), 151 Ohio St. 316 [39 O.O. 145]; Brown v. Cleveland Baseball Co. (1952), 158 Ohio St. 1 [47 O.O. 478], In the instant case, appellees attribute their injuries to an operating oil well pump owned by Hoover, but located on Bowerston’s land pursuant to an oil and gas lease. The well and the well site were exclusively controlled by Hoover, and the record in this case is totally devoid of any facts to the contrary. The fact that Bowerston may have given others permission to cut wood from the land does not alter this reality. The pump existed in an area cleared of trees. Even if Bowerston gave its permission to cut trees on other parts of the land, there is no indication that such activity would place such invitees on the pump site. In the absence of either occupation or control of the pump site itself, to wit: the part of the premises the disrepair of which caused the injury, Bowerston owed no duty to persons entering this area and the trial court was correct in granting summary judgment as to this appellant. Accordingly, we reverse the decision of the court of appeals and enter final judgment for appellant Bowerston Shale Company.

II

With regard to appellant Hoover, appellees contend that the facts submitted to the trial court under the summary judgment procedure were sufficient, if believed, to warrant presentation of the case to the jury under authority of Coy v. Columbus, Delaware & Marion Electric Co. (1932), 125 Ohio St. 283. In Coy, a six-year-old plaintiff was injured by electric shock from a high voltage transformer owned by the defendant electric company. The transformer was located on vacant premises bounded on one side by a pathway used by pedestrians generally and by children continuously as a playground. Knowing that children and adults were in close proximity to the transformer, the defendant erected a protective picket fence. However, over a period of time, the defendant allowed the fence to deteriorate and become loose enough to form large openings. The plaintiff was injured when he and his brother climbed through the fence and the plaintiff came into contact with the transformer. Despite the fact that the plaintiff was trespassing at the time the injury occurred, this court ruled that the plaintiffs petition presented a legally cognizable cause of action by alleging the negligent operation of a highly dangerous piece of equipment on premises where the defendant, for several years, allowed a protective fence to deteriorate despite full knowledge of the continuous presence of children. In Coy, the sufficiency of the plaintiffs petition was analyzed in light of this court’s rulings in two earlier cases. In Railroad Co. v. Harvey (1907), 77 Ohio St. 235, this court held in the first paragraph of the syllabus that:

“It is not the duty of an occupier of land to exercise care to make it safe for infant children who come upon it without invitation but merely by sufferance.”

However, in Ziehm v. Vale (1918), 98 Ohio St. 306, the applicability of the Harvey doctrine of non-liability was distinguished in the second paragraph of the syllabus, which stated that:

“The principle of non-liability applied in the Harvey case, supra, does not apply where the statical condition of the premises is made perilous by the active and negligent operation thereof by the owner.”

Applying those principles, this court in Coy at 289 concluded:

“The instant petition alleged the maintenance of an electrical transformer in active operation containing a powerful and dangerous electric current, situated upon premises frequented by children, together with the allegation that the company knew that children often congregated upon such premises. Therefore, within the doctrine of the Ziehm case, both knowledge of the probable presence of the infant and the employment of the active force which caused the injury were alleged. As set forth in the petition, this is not a case of a mere visible dangerous statical condition of the premises. This is an alleged case of negligent operation of a highly powerful and dangerous unit of electrical machinery upon premises where, with knowledge of the continuous presence of minors, for several years the company operating the electrical unit had permitted the fence protecting the machinery to become rotten and out of repair.” (Emphasis added.)

Accordingly, and based upon this reasoning, this court held in the first paragraph of the syllabus of Coy.

“Where the statical condition of premises is made perilous by the active and negligent operation of apparatus thereon by the person owning or controlling the same, a liability arises for injury resulting therefrom.” (Emphasis added.)

As noted by the court of appeals in this case, appellees claim that the evidentiary materials submitted below were sufficient to justify a conclusion on the part of a reasonable fact-finder that appellant Hoover knew young children were regularly on the property and that they would not be mature enough to appreciate the dangers inherent to the pumping equipment. As such, appellees claim that even if Brent were a trespasser,¹ appellant had a duty to fence or otherwise enclose the premises because of the existence of hazardous machinery. At a minimum, appellees claim that appellant had a duty to warn of the equipment’s presence.

We find appellees’ argument persuasive, notwithstanding appellant’s assertion that this court’s decision in Elliott v. Nagy (1986), 22 Ohio St. 3d 58, is controlling. In Nagy, supra, as in the other cases cited as support by the appellant, the linchpin was foreseeability. While declining to adopt the doctrine of attractive nuisance (which is not necessary in deciding this case), this court stated at 61:

“We thus decline appellant’s invitation to adopt the attractive nuisance doctrine and conclude that summary judgment was proper. We hold that the attractive nuisance doctrine will not extend tort liability to the owner of a home swimming pool where the presence of a child who was injured or drowned therein was not foreseeable by the property owner. ” (Emphasis added.)

Similarly in Soles v. Ohio Edison Co. (1945), 144 Ohio St. 373 [29 O.O. 559], this court, commenting on Coy and Ziehm, stated at 378-379:

“It is significant that in each of these cases the defendant had knowledge of the fact that children were playing in close proximity to the instrumentality which caused the injury. ” (Emphasis added.)

In rendering final judgment for the defendant in Soles, we stated at 379:

“Here we are not dealing with a child but with a young man almost nineteen years of age, * * * and here there is no evidence that the defendant had any knowledge that part of the fence forming one wall of the enclosure was down, or that any one [sic], either child or adult, ever went within the enclosure. ”2 (Emphasis added.)

Because the record in this case does include evidence which, if believed, could establish that the injuries to appellees were or should have been within the contemplation of appellant Hoover, we find that the granting of summary judgment below to this appellant was improper.

Accordingly, with regard to appellant Hoover, we affirm the decision of the court of appeals and remand the case of this appellant to the trial court for further proceedings consistent with this opinion.

Judgment reversed in part, affirmed in part and cause remanded.

Celebrezze, C.J., Sweeney, C. Brown and Douglas, JJ., concur. Wright, J., concurs separately. Locher and Holmes, JJ., concur in part and dissent in part.

1 Appellees claim that a factual dispute exists with regard to their status at the time of the accident. Appellees contend alternatively that they were licensees by virtue of appellant’s acquiescence in their presence on the property, see Hannan v. Ehrlich (1921), 102 Ohio St. 176; or frequenters as defined by R.C. 4101.01(E); or recreational users as defined by R.C. 1533.18(B). We join the lower courts in rejecting appellees’ claim that they were recreational users of the property. We also reject appellees’ claim that R.C. 4101.01(E) defines the nature of their presence, as this “frequenter” statute is applicable only to workmen, invitees or business visitors and not to gratuitous licensees or others on the premises of another solely for purposes of their own. However, we do agree with appellees that the evidence presented below does raise issues of fact regarding whether Hoover acquiesced in Brent’s presence thereby making him a licensee, or whether the children’s visits were merely instances of trespassing.

2 See, also, Railroad Co. v. Harvey, supra, at paragraph three of the syllabus: “A water works company is not liable for the death * * * of an infant who comes upon its land without invitation * * * while playing about it without the knowledge of the company” (emphasis added); Brooks v. Norfolk & Western Ry. Co. (1976), 45 Ohio St. 2d 34 [74 O.O.2d 53]: “* * * [T]here is no evidence in the record, direct or inferential, * * * which indicates that Norfolk & Western knew that the operation of its freight train * * * on its right-of-way * * * would, in all common probability, result in injury to anyone” (emphasis added). Id. at 37-38.