Wigton v. Lavender , 70 Ohio App. 2d 241 ( 1980 )

This is an appeal from a directed verdict as to liability rendered in favor of defendant-appellee, Michael Kibler, and against plaintiffs at the close of plaintiffs' case in a trial to a jury.

The active allegations giving rise to the issues before us are set forth in the amended complaint of plaintiffs, Eldon D. Wigton, Grange Mutual Casualty Company, Lightning Rod Mutual Insurance Company and Aetna Insurance Company. The first paragraph of the amended complaint alleged:

"On or about February 18, 1977, defendants, William Lavender, Clyde L. Ward and Michael Kibler, all of whom were then minors, unlawfully entered a barn located at 8526 Kilbourne Road, Sunbury, Ohio and willfully, maliciously, or negligently, burned, damaged and destroyed said barn and its contents."

The evidence at the trial itself indicated that defendants Lavender, Ward and Kibler, agreed to "toilet paper" the premises of Eldon D. Wigton who was an instructor of Lavender and Kibler. Neither Lavender nor Kibler particularly liked Wigton.

Kibler drove Lavender and Ward to the premises of plaintiff Eldon D. Wigton and parked down the road. All three defendants climbed a fence, walked up behind Wigton's barn and entered the rear of the barn. The three did not "toilet paper" the premises because of the lights on the property.

While all three were in the barn, Lavender testified that the following conversation took place:

"Q. What was the conversation, if any, that transpired after Clyde Ward said something to the effect that, ``Let's burn the barn.'

"A. Well, me and Clyde said, ``Okay.'

"Q. I beg your pardon?

"A. Me and Clyde said, ``Okay.' And Mike [appellee Michael Kibler] said, ``No, we better not.' And Clyde goes, ``Yes. Let's do it.'

"And when I started to light the match, that's when Mike turned around and started for the door."

However, Kibler testified that he merely stated, "No" in his testimony:

"Q. On page 22, line 8, do you recall Mr. Vatsures asking you the following question: ``What did you do when you saw a match, what was your first course of action?'

"A. I don't remember that, no.

"Q. Mr. Kibler, at any point in time, did you attempt to prevent, in any manner, either Mr. Lavender or Mr. Ward from lighting the matches?

"A. Yes, when Clyde suggested it, I said ``No', and I turned around and started walking out.

"Q. That is the only course of action that you took?

"A. Yes."

Lavender stated that his first match went out and that he had to throw down another match at the time Kibler had left the barn.

At the trial, Kibler testified that he was not aware of the fire until everyone had returned to his car and they were driving down the road; at which time, he saw a glow against the sky. However, a detective of the Delaware County Sheriff's Office testified that Kibler stated to him on, February 22, 1977 (four days after the fire), that "he [Kibler] noticed it first as he was leaving the barn."

As hereinbefore indicated, the trial court, at the close of plaintiffs' case, directed a verdict in favor of defendant Michael Kibler (and his parents, who were also defendants at that time) on all issues, as the court found no duty existed from Michael Kibler to Eldon D. Wigton.

All issues as to the other parties were resolved in the trial court, and a timely notice of appeal was filed by the appellant, Aetna Insurance Company, as to the final order of the court.

Appellant appeals only as to the verdict in favor of Michael Kibler and only as the directed verdict relates to the claimed cause of action arising from negligence. Appellant assigns the following as error:

"1. The trial court erred in granting [the] motion for a directed verdict of appellee, Michael Kibler, holding that Michael Kibler was not negligent as a matter of law.

"2. The trial court erred in not allowing the jury to decide whether appellee, Michael Kibler, was negligent."

The initial question before this court is whether defendant Michael Kibler is in the same position as an idle observer who can watch a blind man walk over a cliff and has no duty to cry out a warning or to take any action to save him. If defendant Kibler is in such a position, then the trial court was correct in its action.

We cannot so hold.

The evidence clearly established that defendant Michael Kibler agreed to trespass on Wigton's land with Lavender and Ward. While the agreed trespass was not for the purpose of burning Wigton's barn, the trespass was still continuing at the time the fire started.

In a scholarly review of tort principles, the late Judge Hart, in Taylor v. Cincinnati (1944), 143 Ohio St. 426, at page 432, said:

"To properly consider and determine tortious liability in accordance with legal principles, it is necessary to differentiate and classify the several types of tortious conduct. In general, they may be designated as follows: (1) Culpable and intentional acts resulting in harm; (2) actsinvolving culpable and unlawful conduct causing unintentionalharm; (3) non-culpable acts or conduct resulting in accidental harm for which, because of the hazards involved, the law imposes strict or absolute liability notwithstanding the absence of fault; and (4) culpable acts of inadvertence involving unreasonable risks of harm." (Emphasis added.)

Judge Hart later cites, at page 440, a case involving an "* * * action for damages for * * * permitting inmates to terrorize plaintiff and to trespass upon his property * * *."

Surely an actual trespass creates at least an equal duty with permitting a trespass.

As was stated in Cincinnati Suburban Bell Telephone Co. v.Eadler (1944), 75 Ohio App. 258, at pages 260-261:

"* * * Whenever and wherever one person comes into proximity to the person or property of another, a duty arises to refrain from conduct likely to cause injury or damage."

While defendant Kibler's claimed acts of negligence are of omission rather than of commission, this is not a valid distinction in Ohio. The court in Harriman v. Ry. Co. (1887),45 Ohio St. 11, at page 24, stated:

"* * * If the neglect be the proximate cause of the injury, it is of no consequence whether it be omission or commission. * * *"

We find that when a person trespasses on the lands of another that, while the trespass continues, he owes a duty of care to the owner of the premises; and, such duty includes the obligation to protect the property from harm as a result of the trespass.

For the foregoing reasons the assignments of error are sustained. The judgment herein appealed from is reversed and this cause is remanded to the Court of Common Pleas of Delaware County for further proceedings according to law.

Judgment reversed andcause remanded.

PUTMAN, P. J., concurs.