Jones v. Action Now Pest Control , 2010 Ohio 1543 ( 2010 )


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  • [Cite as Jones v. Action Now Pest Control, 
    2010-Ohio-1543
    .]
    STATE OF OHIO, HARRISON COUNTY
    IN THE COURT OF APPEALS
    SEVENTH DISTRICT
    ROBERT E. JONES, et al.,         )
    )                        CASE NO. 08 HA 6
    PLAINTIFFS-APPELLANTS,      )
    )
    - VS -                      )                              OPINION
    )
    ACTION NOW PEST CONTROL, et al., )
    )
    DEFENDANTS-APPELLEES.       )
    CHARACTER OF PROCEEDINGS:                                 Civil Appeal from Common Pleas
    Court, Case No. 02-352-CR.
    JUDGMENT:                                                 Affirmed.
    APPEARANCES:
    For Plaintiffs-Appellants:                                Attorney Aaron Berg
    Caravone & Czack, PPL
    50 Public Square, The Terminal Tower
    Suite 1900
    Cleveland, OH 44113
    Attorney Michael Shaheen
    227 E. Main Street
    St. Clairsville, OH 43950
    For Defendants-Appellees:                                 Attorney Patrick McCaffrey
    Attorney Audrey E. Varwig
    Golian & McCaffrey, LLC
    2109 Stella Court
    Columbus, OH 43215
    JUDGES:
    Hon. Mary DeGenaro
    Hon. Joseph J. Vukovich
    Hon. Gene Donofrio
    Dated: March 29, 2010
    -2-
    DeGenaro, J.
    {¶1}    This timely appeal comes for consideration upon the record in the trial court,
    the parties’ briefs, and their oral arguments before this court. Plaintiff-Appellant Jones
    appeals the October 17, 2008 decision of the Harrison County Court of Common Pleas
    that granted summary judgment in favor of Defendant-Appellee, Action Now Pest Control.
    Jones asserts that his negligence claim should not have been dismissed via summary
    judgment, because he presented a genuine question of material fact as to whether Action
    Now had negligently performed its contractual duty to "seal building for bats."
    {¶2}    Upon review, the trial court correctly concluded that the duties of Action Now
    claimed by Jones were not included in the contract between Action Now and the Conotton
    Valley School District. Action Now did not owe Jones a duty to complete a more thorough
    inspection of the interior of the school building in excess of its contractual duties.
    Because there is no factual dispute that Action Now satisfactorily completed its
    obligations according to the plain meaning of the contract terms, and because Action Now
    did not owe Jones any legal duty to affirmatively act, the trial court's summary judgment
    dismissal of Jones's negligence claim is affirmed.
    Facts and Procedural History
    {¶3}    Jones began his position as the principal of the Bowerston Elementary
    School in 2000. The custodian at the school, Elizabeth F. West, pointed out the presence
    of bats to Jones shortly after he began working at the school. According to West’s
    deposition testimony, there was already a bat infestation on the school building when
    West began working at Bowerston around 1988. Jones noticed bat droppings on the
    back end of the school building's exterior, and did not notice any droppings inside the
    building. Jones reported the problem to the Conotton Superintendent, Thomas A. Wolfe,
    in 2000. Between 2000 and 2002, as the accumulation of bat droppings outside the
    building worsened, Jones repeatedly reported the issue to Wolfe. Wolfe advised Jones to
    find a pest control company to expel the bats, and Action Now was contacted to come to
    the school to provide an estimate.
    {¶4}    In September 2002, Action Now sent a representative to Bowerston. Jones
    indicated to the representative where he thought the bats were exiting at the rear of the
    -3-
    building, asked Action Now to make sure that was the only place they were accessing the
    building, and asked them to clean off the guano that had accumulated on the window
    ledges. Jones did not ask Action Now to look inside the school building or ventilation
    system for bats or droppings. After meeting with Jones, Action Now sent a service
    agreement to Wolfe at Conotton, stating that Action Now would seal the building for bats
    and clean the guano off of the rear of the building for $900.00. Wolfe believed that the
    instructions to seal the building for bats and clean the rear exterior were an accurate
    description of the work that Conotton wanted Action Now to do. Conotton agreed to the
    service agreement, and Action Now completed the bat exclusion service at Bowerston
    over one weekend.
    {¶5}   Daniel L. Tope, the then maintenance supervisor for Conotton, was present
    at Bowerston while Action Now performed their services. Tope provided access to the
    school building if it was needed for Action Now to get to the roof of the building, though
    Action Now was able to access the bat roosting areas without entering the building. Tope
    did not recall any reports of bat problems after Action Now completed their job. Wolfe did
    not receive any reports of bat problems after Action Now completed the work, and did not
    see further presence of bats at Bowerston. West did not remember any further presence
    of bats at the school afterwards. However, Jones noticed approximately four bats inside
    the building during the week following Action Now's services, and stated that he reported
    the issue to Wolfe and Tope. Jones did not notice any further presence of bats following
    that time. Jones ceased working at Bowerston in June of 2003, and in March of 2004,
    Jones was diagnosed with Histoplasmosis.
    {¶6}   Jones's 2005 complaint alleged that Conotton Valley Union Local Schools
    ("Conotton") had hired Action Now "for purposes of maintenance and/or inspection and/or
    pest control of Bowerston Elementary School * * * which included sealing the building for
    bats, washing and/or otherwise removing bat droppings from the ventilation air ducts and
    other areas throughout the building," and that Action Now negligently and/or recklessly
    performed such services, causing Jones to contract Histoplasmosis.
    {¶7}   Action Now filed a Motion for Summary Judgment, supported by
    depositions, claiming that Jones had failed to allege that Action Now negligently
    -4-
    performed its contractual duties, and that Action Now did not have the duty to inspect or
    clean Bowerston's ventilation system. Action Now further stated that the foreseeable
    risks of their undertaking included the return of a bat infestation, which did not occur. In
    his Brief in Opposition, which also included deposition testimony, Jones argued that a
    reasonably prudent person in Action Now's position would have foreseen that people in
    the school were at risk of contracting Histoplasmosis, and that after taking on the
    responsibility of providing pest control services for the school, Action Now was obligated
    to conduct a more thorough inspection and warn Bowerston personnel of the risks of
    exposure to bat guano.
    {¶8}     After further reply and sur-reply from each party, the trial court filed a
    judgment entry on October 17, 2008, granting Action Now's motion for summary judgment
    and dismissing Jones's claim. The trial court held that, in a light most favorable to Jones,
    Action Now's duty existed pursuant to its contractual terms, it did not breach its duty of
    care in completing the contract, and it did not have the duty to complete more
    comprehensive or beneficial services to the school outside those services specifically
    requested in the contract.
    Negligence – Scope of Duty
    {¶9}     In his sole assignment of error, Jones asserts:
    {¶10} "The trial court erred in granting summary judgment in favor of defendant-
    appellee and dismissing the negligence claim of plaintiffs-appellants."
    {¶11} In deciding Jones's negligence claim against Action Now, the trial court
    concluded that Jones failed to establish that Action Now owed Jones a duty of care
    outside the contractual agreement between Action Now and Conotton Schools, and that
    no evidence was presented that Action Now breached its limited duties under the
    contract.     Jones argues that the duties claimed in his complaint were within the
    contractual duties of Action Now, and that a question of material fact remained as to
    whether Action Now negligently performed those duties.
    {¶12} An appellate court reviews a trial court's summary judgment decision de
    novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v.
    -5-
    Harrison, 
    115 Ohio St.3d 241
    , 
    2007-Ohio-4948
    , 
    874 N.E.2d 1155
    , at ¶5. A motion for
    summary judgment is properly granted if the court, upon viewing the evidence in a light
    most favorable to the party against whom the motion is made, determines that: (1) there
    are no genuine issues as to any material facts; (2) the movant is entitled to a judgment as
    a matter of law; and (3) the evidence is such that reasonable minds can come to but one
    conclusion and that conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v.
    Smith, 
    110 Ohio St.3d 24
    , 
    2006-Ohio-3455
    , 
    850 N.E.2d 47
    , at ¶10. Only the substantive
    law applicable to a case will identify what constitutes a material issue, and only the
    disagreements "over facts that might affect the outcome of the suit under the governing
    law" will prevent summary judgment. Byrd at ¶12, citing Anderson v. Liberty Lobby, Inc.
    (1986), 
    477 U.S. 242
    , 248, 
    106 S.Ct. 2505
    , 
    91 L.Ed.2d 202
    .
    {¶13} When moving for summary judgment, "the 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." Dresher v. Burt, 
    75 Ohio St.3d 280
    ,
    296, 
    1996-Ohio-107
    , 
    662 N.E.2d 264
    . The nonmoving party has the reciprocal burden of
    specificity and cannot rest on the mere allegations or denials in the pleadings. Id. at 293.
    {¶14} In order to establish an actionable claim of negligence, a plaintiff must
    establish "(1) the existence of a legal duty, (2) the defendant's breach of that duty, and (3)
    injury that is the proximate cause of the defendant's breach." Wallace v. Ohio Dept. of
    Commerce, 
    96 Ohio St.3d 266
    , 
    2002-Ohio-4210
    , 
    773 N.E.2d 1018
    , at ¶22. The duty
    element of negligence is a question of law for the court to determine. 
    Id.
     "In Ohio it is
    well-established that liability in negligence will not lie in the absence of a special duty
    owed by the defendant." Gelbman v. Second Natl. Bank of Warren (1984), 
    9 Ohio St.3d 77
    , 78, 9 OBR 280, 
    458 N.E.2d 1262
    .
    {¶15} The existence of duty depends on the relationship between the parties.
    Generally, a contracting party owes no duty to a third party who is not privy to a contract.
    See Vistein v. Kenney (1990), 
    71 Ohio App.3d 92
    , 106, 
    593 N.E.2d 52
    . However, in the
    absence of contractual privity, a party to a contract may be liable to a third party if he
    -6-
    performs his contractual duties in a negligent manner which would foreseeably cause the
    third party's injuries. Durham v. The Warner Elevator Mfg. Co. (1956), 
    166 Ohio St. 31
    , 
    1 O.O.2d 181
    , 
    139 N.E.2d 10
    . In other words, by agreeing to perform certain services
    pursuant to a contract, the service provider has assumed the affirmative duty to exercise
    ordinary care to avoid injury to others as a result of its execution of its contractual duties.
    {¶16} Outside the general legal duty of all people not to injure others through
    willful or wanton misconduct, the scope of the service provider's duty to the third party is
    limited, as a matter of law, by the agreement between the contracting parties. See
    Heneghan v. Sears, Roebuck & Co. (1990), 
    67 Ohio App.3d 490
    , 494, 
    587 N.E.2d 854
    ,
    citing Durham, supra. See, also, Church v. Fleishour Homes, Inc., 
    172 Ohio App.3d 205
    ,
    
    2007-Ohio-1806
    , 
    874 N.E.2d 795
    , at ¶69 ("The scope of the contractor's duties to third
    parties is limited to the duties assumed under the contract."). A service provider does not
    have a duty to third parties to act outside the scope of their contract, even if such action
    could have prevented injury. See, e.g., Sabolik v. HGG Chestnut Lake Ltd. Partnership,
    
    180 Ohio App.3d 576
    , 
    2009-Ohio-130
    , 
    906 N.E.2d 488
    , at ¶29 (setting the maximum
    temperature of water heater was outside the scope of the energy-savings-system
    installer’s work, even with the knowledge of the dangers of scalding). Moreover, "the
    mere omission to perform a contract obligation is never a tort unless the omission is also
    the omission to perform a legal duty." Nationwide Mut. Fire Ins. Co. v. Sonitrol, Inc. of
    Cleveland (1996), 
    109 Ohio App.3d 474
    , 485, 
    672 N.E.2d 687
    , quoting Bowman v.
    Goldsmith Bros. Co. (1952), 
    63 Ohio Law Abs. 428
    , 431, 
    109 N.E.2d 556
    .
    {¶17} Jones is alleging that Action Now negligently performed its contractual
    duties and that Jones's contraction of Histoplasmosis was a foreseeable result. Action
    Now argues that it completed all of its contractual duties with the reasonable care owed
    Jones, and that Jones is claiming negligence for failure to either perform activities outside
    the scope of the contract, or for negligent failure to enter into a more comprehensive
    contract with Conotton. In order to identify Action Now's duties under its contract, its
    terms should be reviewed.
    -7-
    {¶18} The purpose of a reviewing court's examination of a contract is to determine
    the intent of the parties. Westfield Ins. Co. v. Galatis, 
    100 Ohio St.3d 216
    , 2003-Ohio-
    5849, 
    797 N.E.2d 1256
    , at ¶11. The assumption is that the intent of the parties is
    reflected in the language used in the contract. 
    Id.
     If the terms of the contract are clear
    and unambiguous, then the contract can be interpreted as a matter of law. 
    Id.
     Contract
    terms should be given their ordinary meaning, unless it would render an absurd result or if
    another meaning is clearly apparent from the contents of the agreement. 
    Id.
    {¶19} The contract between Action Now and Conotton stated that it was a "pest
    control service agreement," and that the pests to be controlled were bats. The contract
    included the following: "Special instruction: Seal building for bats & wash droppings off
    back of building." The contract also states that it is a "one time treatment" with a one-
    year guarantee.
    {¶20} Jones asserts that these terms include the obligations to address all bat
    entrance areas on the building, inspect to determine if guano removal and parasite
    treatment should be performed, inspect the entire exterior and interior of the building, and
    not limit the scope of the exclusionary work to one night. Jones seems to concede that
    the work completed, although insufficient in view of the alleged larger contractual
    obligations, was done "in a satisfactory manner."
    {¶21} The language used by the parties to the contract does not support Jones's
    claims. The plain language of the contract indicates that Action Now was to seal the
    building to exclude the bats; i.e., so that the bats would no longer access the building.
    The parties do not dispute that, shortly after Action Now completed their work, bats
    ceased to access the school building. There is nothing in the plain language of the
    contract indicating that Action Now should perform an interior inspection of the building to
    detect guano or parasites. Instead, the contract language limits Action Now's guano
    cleaning duties to the back side of the building's exterior. The plain language of the
    contract also indicates that Action Now promised to perform further bat-control work
    within one year in the event that Bowerston found the work to be unsatisfactory, which
    would indicate that individuals at Bowerston would contact Action Now to communicate
    any dissatisfaction.
    -8-
    {¶22} The evidence and deposition testimony demonstrate that Action Now
    ascertained the bats' point of access from information provided by Jones and Tope, that
    Action Now sealed the area indicated as the source of the bat infestation, and that no one
    communicated dissatisfaction or any need for follow-up services to Action Now. The
    record also indicates that Action Now cleaned up the guano on the rear of the building
    pursuant to the contract.
    {¶23} Jones’s argument implies that the issue in this case is not whether Action
    Now negligently performed the actions described in the contract, but whether the
    company was negligent in failing to do more. Jones does not necessarily claim that the
    language of Action Now's contract obligated Action Now to inspect the interior of the
    building or warn its occupants of the hazards of exposure to bat guano. Rather, because
    Action Now entered a pest control contract, and because they allegedly held themselves
    out to be experts, they had the duty, based on their expertise and knowledge of the
    hazards of bat guano, to affirmatively act on reasonable inferences from the presence of
    bats in the building.
    {¶24} However, Action Now did not owe Jones the affirmative duty to enter into a
    more comprehensive contract with the Conotton School District, nor did they owe Jones
    the duty to perform or even recommend further services outside the scope of the contract,
    even if they would have reduced the possibility of Jones's injury. Imposing such a duty
    would imply that, due to the possession of specialized knowledge in an industry, a
    company would have the affirmative duty to take preventative action not requested, and
    exercise the highest degree of care. Such a legal duty does not exist in Ohio, and would
    be unduly burdensome on a service provider. See, e.g., Risk v. Woeste Eastside Motors,
    Inc. (1997), 
    119 Ohio App. 3d 761
    , 764-765, 
    696 N.E.2d 283
     (stating that a car repair
    service is not obligated to detect problems in the absence of a request for inspection
    thereof, and is not obligated to inform a customer of further recommended repairs). See,
    also, Landon v. Lee Motors, Inc. (1954), 
    161 Ohio St. 82
    , 
    53 O.O. 25
    , 
    118 N.E.2d 147
    , at
    paragraph seven of the syllabus (holding similarly); Sant v. Hines Interests Ltd.
    Partnership, 10th Dist. No. 05AP-586, 
    2005-Ohio-6640
    , at ¶29 (a service provider is
    -9-
    obligated to take a reasonable course of action, not the best possible course of action);
    Sabolik, 
    supra.
     Thus, Action Now’s alleged status as an expert on bat exclusion did not
    create a legal duty to perform an unrequested interior inspection for bat guano.
    {¶25} As outlined in the foregoing discussion, Action Now sealed the Bowerston
    school building for bats, Action Now’s exclusion efforts were successful as the bat
    infestation did not return to the building, and Action Now cleaned the bat guano off of the
    back of the school building as instructed in the contract. The services that Jones claims
    Action Now should have completed, namely an inspection of the interior and ventilation
    system for bat guano as well as some provision of warnings to school personnel, were
    outside the terms of the contract. Action Now did not breach any duty owed to Jones by
    failing to perform those additional services. Action Now did not owe a duty to Jones to
    affirmatively act outside the scope of its contractual duties with the school, or to avoid a
    contract with limited terms. The scope of Action Now's duty to Jones was limited to the
    exercise of reasonable care in performing the limited duties of its contract with the
    Conotton School District. Jones's negligence claim therefore fails as a matter of law.
    Conclusion
    {¶26} The plain meaning of the contract terms between Action Now and the
    Conotton School District did not impose the additional duties claimed by Jones in his
    complaint or on appeal. Because Jones has failed to demonstrate the legal duty element
    of his negligence claim, Jones's sole assignment of error is meritless. Accordingly, the
    judgment of the trial court is affirmed.
    Vukovich, P.J., concurs.
    Donofrio, J., concurs.
    

Document Info

Docket Number: 08 HA 6

Citation Numbers: 2010 Ohio 1543

Judges: DeGenaro

Filed Date: 3/29/2010

Precedential Status: Precedential

Modified Date: 10/30/2014