Holcomb v. Holcomb , 2014 Ohio 3081 ( 2014 )

[Cite as Holcomb v. Holcomb, 2014-Ohio-3081.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
MICHAEL S. HOLCOMB, :
Plaintiff-Appellant, : CASE NO. CA2013-10-080
: OPINION
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:
THOMAS HOLCOMB, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2012 CVC 01990
Carl W. Zugelter, 1295 West Ohio Pike, Amelia, Ohio 45102, for plaintiff-appellant
Freund, Freeze & Arnold, Lucinda C. Shirooni, 105 East Fourth Street, Suite 1400,
Cincinnati, Ohio 45202, for defendant-appellee, Thomas Holcomb
RINGLAND, P.J.
{¶ 1} Plaintiff-appellant, Michael S. Holcomb, appeals from a decision in the
Clermont County Court of Common Pleas granting summary judgment to defendant-
appellee, Thomas Holcomb. For the reasons outlined below, we affirm the judgment of the
trial court.
{¶ 2} Michael was injured when working with his father, Thomas, who was an
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independent contractor for Red Bank Transport, Inc. (Red Bank).1 Thomas owned a truck
which he used to pull a trailer owned by Red Bank to haul aggregate. The trailer had a hand-
crank system to pull a tarpaulin (tarp) across the top of the trailer used to secure the
aggregate. Due to previous shoulder injuries, Thomas was unable to use the hand-crank
system. On October 22, 2010, Red Bank granted Michael permission to ride with Thomas in
order to "tarp & untarp" the trailer.
{¶ 3} On October 23, 2010, Michael began riding with Thomas. On the first day,
Thomas instructed Michael on how to operate the hand-crank system. While Michael had
worked as a truck driver in the late 1990's, he had not previously used a hand-crank tarp
system. The first day proceeded without incident.
{¶ 4} On October 26, 2010, as they were finishing the last load on the second day, a
strong gust of wind caught hold of the tarp while it was unsecured. Thomas and Michael
knew this was the last load of the day because of the weather conditions consisting of strong
winds and a steady rain. The gust of wind caused the tarp to fall underneath the cap of the
truck. Thomas and Michael attempted to loosen the tarp with a shovel to no avail. Thomas
then told Michael "you're going to have to get up in the truck and get the tarp out." In
response, Michael stated that he did not want to because "[i]t's raining, it's sandy, it's dirty, it
smells." Michael stated that "[y]ou go climbing in the inside of the truck, you're wearing that
for the rest of the day." Thomas assured Michael that he had "done it a thousand times, it
ain't no big deal." In fact, however, the tarp had only fallen under the cap twice in fifteen
years. Additionally, Thomas indicated to Michael that the tarp had to be secure before they
could leave.
{¶ 5} In his deposition, Michael testified that climbing on the back of the trailer was
1. While Red Bank was initially a named party, Michael voluntarily dismissed all claims against Red Bank.
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the only way to reach the tarp and that Thomas told him to climb on the side and around to
the back of the trailer. To climb up on the side of the trailer, Michael used the ladder as a
hand grip, climbed up on one of the wheels, and stepped onto the aluminum fender, which
sloped at a 45-degree angle. While Michael testified that it did not occur to him that the
fender would be slick prior to climbing on the trailer, he testified that in fact the fender was
slick. Michael was initially able to maintain his footing. With his hands on the top edge of the
trailer and his feet on the fender, Michael negotiated his way from the side of the trailer to the
back of the trailer. When he reached the back of the trailer with his hands on the top of the
tailgate and his feet on the back fender, Michael noticed that the fender was covered in
aggregate from a previous load and sloped at a slightly greater angle of approximately 50
degrees.
{¶ 6} Michael was able to free the tarp from the back of the trailer. Michael then
negotiated his way to the side of the trailer the same way he came. After reaching the side,
when he went to reach for the ladder with his left hand, he lost his grip with his right hand and
fell backwards. Michael landed with the majority of his weight on his right leg and foot and
was injured.
{¶ 7} Thomas knew Red Bank provided mechanics if called. David Jackson, the
operations manager for Red Bank, indicated that mechanics had been dispatched in other
instances to fix similar issues. Curt Foster, the shop foreman, stated that he would have sent
a service truck to free the tarp if one had been requested. Jackson and Foster also indicated
that climbing onto the trailer in the manner Michael did was "extremely risky" and "very
dangerous."
{¶ 8} Michael filed a complaint against Thomas. Michael alleged several causes of
action, including that Thomas was negligent under the frequenter statutes and general
negligence applied. Thomas moved for summary judgment. In granting Thomas' motion for
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summary judgment, the trial court found that Michael constituted a frequenter. The trial court
found that the truck and trailer constituted Thomas' place of employment and that Michael
was a person in a place of employment who was not a trespasser. Consequently, the trial
court found that Thomas owed a duty to Michael to keep the premises in a reasonably safe
condition. Nevertheless, the trial court found that because the danger was open and
obvious, any duty was negated. Additionally, the trial court found that Thomas was not liable
to Michael under general negligence principles.
{¶ 9} Michael now appeals and asserts one assignment of error for review.
{¶ 10} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT.
{¶ 11} Michael argues that the trial court erred in granting Thomas' summary judgment
motion for several reasons, three of which relate to duty. First, Michael argues that because
he was a frequenter, Thomas owed him a duty to keep the premises in a reasonably safe
condition. Michael contends that the open and obvious doctrine does not abrogate the duty
Thomas owed to Michael as a frequenter because there is a genuine issue of material fact as
to whether the danger was open and obvious in light of statements Thomas made.
Additionally, Michael asserts that there is a genuine issue of material fact as to whether
attendant circumstances existed. Second, Michael argues that statements made by Thomas
instructing him on how to free the tarp constituted active negligence. Third, Michael argues
that Thomas assumed a duty to Michael by giving him instructions on how to free the tarp.
Finally, Michael argues that a jury question exists as to whether any actions of Thomas
leading to him climbing on the side of the trailer were a proximate cause of his injuries.
Standard of Review
{¶ 12} This court's review of a trial court's ruling on a summary judgment motion is de
novo. McQueen v. Kings Island, 12th Dist. Warren No. CA2011-11-117, 2012-Ohio-3539, ¶
6. Civ.R. 56 sets forth the summary judgment standard and requires that (1) there be no
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genuine issues of material fact to be litigated, (2) the moving party is entitled to judgment as
a matter of law, and (3) reasonable minds can come to only one conclusion being adverse to
the nonmoving party. Slowey v. Midland Acres, Inc., 12th Dist. Fayette No. CA2007-08-030,
2008-Ohio-3077, ¶ 8. The moving party has the burden of demonstrating that there is no
genuine issue of material fact. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66
(1978).
{¶ 13} The nonmoving party "may not rest on the mere allegations of his pleading, but
his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts
showing the existence of a genuine triable issue." Mootispaw v. Eckstein, 76 Ohio St.3d 383,
385 (1996). A dispute of fact can be considered "material" if it affects the outcome of the
litigation. Myers v. Jamar Ents., 12th Dist. Clermont No. CA2001-06-056, 2001 WL
1567352,*2 (Dec. 10, 2001). A dispute of fact can be considered "genuine" if it is supported
by substantial evidence that exceeds the allegations in the complaint. Id.Negligence
{¶ 14} In order to avoid summary judgment in a negligence action, the plaintiff must
show the following: (1) the defendant owed plaintiff a duty of care; (2) the defendant
breached the duty of care; and (3) as a direct and proximate result of defendant's breach,
plaintiff was injured. Barnett v. Beazer Homes Invests., L.L.C., 180 Ohio App.3d 272, 2008-
Ohio-6756, ¶ 12 (12th Dist.). Ordinarily, the existence of a legal duty in a negligence action is
a question of law for the court, and there is no expressed formula for determining whether a
duty exists. Mussivand v. David, 45 Ohio St.3d 314, 318 (1989). "Legal duty" has been
defined as an obligation imposed by law on one person to act for the benefit of another
person due to a relationship between them. Berdyck v. Shinde, 66 Ohio St.3d 573, 578
(1993).
Duty to Keep Premises in Safe Condition
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{¶ 15} The trial court found that Michael was a frequenter and the truck and trailer
constituted a place of employment, which is not disputed on appeal. R.C. 4121.01 defines
"frequenter" as "every person, other than an employee, who may go in or be in a place of
employment under circumstances which render the person other than a trespasser." R.C.
4121.01; Wyczalek v. Rowe Constr. Servs. Co., 148 Ohio App.3d 328, 335 (6th Dist.). A duty
is imposed by R.C. 4101.11 upon an employer to protect employees and frequenters.
Speaks v. Rich Housh Servs, Inc., 12th Dist. Warren No. CA95-02-012, 1995 WL 447795, *2
(July 31, 1995). R.C. 4101.12, in turn, imposes on an employer the duty to furnish to
employees and frequenters a safe place of employment. Id.Duty Negated by Open and Obvious Doctrine
{¶ 16} The duty owed to frequenters is no more than a codification of the common-law
duty owed by an owner or occupier of premises to invitees. Eicher v. U.S. Steel Corp., 32
Ohio St.3d 248, 249 (1987). Such a duty consists of keeping the premises in a reasonably
safe condition, and giving a warning of dangers of which he has knowledge. Id. Although an
owner or occupier owes a duty to its invitees to exercise ordinary care in maintaining its
premises, the open and obvious doctrine, when applicable, obviates the duty to warn and
acts as a complete bar to any negligence claims. McQueen v. Kings Island, 12th Dist.
Warren No. CA2011-11-117, 2012-Ohio-3539, ¶ 25, citing Armstrong v. Best Buy Co., Inc.,
99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 5. Thus, where there is an open and obvious danger,
an owner or occupier "owes no duty of care to individuals lawfully on the premises."
Armstrong at ¶ 14. The rationale behind this rule is that "the open and obvious nature of the
hazard itself serves as a warning." Armstrong at ¶ 5. Whether a condition is open and
obvious, "the determinative question is whether the condition was discoverable or discernible
by one acting with ordinary care under the circumstances." Vanderbilt v. Pier 27, LLC, 12th
Dist. Butler No. CA2013-02-029, 2013-Ohio-5205, ¶ 12. "Open and obvious hazards are
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those hazards that are not concealed and are discoverable by ordinary inspection." Lykins v.
Fun Spot Trampolines, 12th Dist. Clinton No. CA2006-05-018, 2007-Ohio-1800, ¶ 22.
{¶ 17} Michael argues that reasonable minds could differ as to whether the danger
was apparent because of Thomas' statements to Michael implying safety. Michael cites to
one Ohio case to support his argument, Waleszewski v. Angstadt, 11th Dist. Lake No. 2002-
L-113, 2004-Ohio-335. Waleszewski involved a real estate transaction where the buyers
viewed a home, including the basement, and specifically asked the seller if there were any
problems with water seepage. Waleszewski at ¶ 21. At the time of the viewings, the
basement walls were "covered or visibly limited." Id. The seller assured the buyers that
there were no problems with water seepage. Id. In precluding summary judgment, the
Eleventh District found that there was a genuine issue of material fact as to whether the
conditions were open and obvious because there was an issue as to whether the sellers
intentionally concealed the water seepage problem. Id.{¶ 18} In the case at bar, while Thomas stated he had "done it a thousand times, it
ain't no big deal," the condition of the fender was still readily apparent to Michael. The
conditions of the trailer were discoverable and discernable. The fender on the side of the
trailer angled at 45 degrees. There were strong winds and a heavy rain. Additionally,
aggregate was on the fender. Consequently, we find that reasonable minds can only come
to one conclusion, that the conditions surrounding Michael's fall were open and obvious.
{¶ 19} Michael also asserts that attendant circumstances were present to negate the
open and obvious doctrine. Attendant circumstances are an exception to the open and
obvious doctrine. Williamson v. Geeting, 12th Dist. Preble No. CA2011-09-011, 2012-Ohio-
2849, ¶ 22. The phrase refers to all facts relating to the event, and includes such
circumstances as time of day, lack of familiarity with the route taken, and lighting conditions.
Galinari v. Michael Koop, 12th Dist. Clermont No. CA2006-10-086, 2007-Ohio-4540, ¶ 21.
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"An attendant circumstance must divert the attention of the injured party, significantly
enhance the danger of the defect, and contribute to the fall." Williamson at ¶ 23.
"Additionally, an attendant circumstance is one that is beyond the control of the injured
party." Id.{¶ 20} Michael states attendant circumstances surrounding the event include Thomas'
assurance that it was not a "big deal" to climb on the trailer and that he had done so
numerous times before. Additionally, Michael states that Thomas pulling on the tarp while
Michael was trying to straighten it constituted an attendant circumstance. We find that these
actions did not create attendant circumstances precluding summary judgment. There is no
evidence that anything Thomas said to Michael diverted Michael's attention from the danger
presented as he was traversing the fender of the trailer. Michael testified that when he
initially climbed up on to the fender that it was slick and also testified to the severity of the
angle. Anyone engaging in traversing the trailer would have to notice the possible danger as
it is an affirmative act to climb up onto the trailer and walk across the fender. With or without
Thomas' assurances, traversing the fender of the trailer presented itself as a danger.
Additionally, the act of Thomas straightening the tarp did not contribute to Michael's fall
because Thomas straightened the tarp when Michael was still on the back of the trailer and
Michael fell after he had returned to the side of the trailer. Consequently, we find that there is
no genuine issue of material fact regarding whether attendant circumstances existed at the
time of Michael's fall.
No Duty Due to Active Negligence
{¶ 21} Michael next asserts that statements made by Thomas instructing him on how
to free the tarp constituted active negligence, and thus the open and obvious doctrine does
not apply. Premises tort claims where the alleged negligence arises from static or passive
conditions, such as preexisting latent defects, are legally distinct from claims arising from
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active negligence by act or omission. Simmons v. Am. Pacific Ent., L.L.C., 164 Ohio App.3d
763, 2005-Ohio-6957, ¶ 20 (10th Dist.). This distinction is important because the two claims
correspond to separate duties. "[S]tatic conditions relate to the owner's duty to maintain its
premises in a reasonably safe condition, including an obligation to warn its invitees of latent
or hidden dangers, while * * * active negligence relates to the owner's duty not to injure its
invitees by negligent activities conducted on the premises." Id., citing Perry v. Eastgreen
Realty Co., 53 Ohio St.2d 51 (1978).
{¶ 22} Thomas telling Michael "you're going to have to get up in the truck and get the
tarp out" or any other instruction provided by Thomas did not constitute active negligence.
The danger presented of the 45-degree angle of the fender covered in wet aggregate was a
static condition immediately observable by Michael despite any instruction provided by
Thomas. In fact, Michael stated that "it's raining, it's sandy, it's dirty, it smells." As the trial
court stated:
This is not an instance where Thomas Holcomb removed part of
the fender on which Michael was walking while he was on the
truck or where Thomas sprayed the truck with water and
aggregate as Michael was working on the tarp.
It was not any instruction of Thomas that caused Michael's fall, but rather the condition of the
fender itself. Consequently, there is no genuine issue of material fact regarding whether
statements made by Thomas constitute active negligence.
No Assumed Duty
{¶ 23} Michael contends that Thomas assumed a duty of care to Michael by
specifically instructing Michael on how to negotiate the side of the trailer in order to free the
tarp. Michael bases his argument on Restatement of the Law 2d, Torts, Section 323 (1965),
entitled "Negligent Performance of Undertaking to Render Services," which states:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
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the protection of the other's person or things, is subject to liability
to the other for physical harm resulting from his failure to
exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such
harm, or
(b) the harm is suffered because of the other's reliance upon the
undertaking.
{¶ 24} "Cases interpreting Section 323(a) have made clear that the increase in the risk
of harm required is not simply that which occurs when a person fails to do something that he
or she reasonably should have" because "the risk of harm to the beneficiary of a service is
always greater when the service is performed without due care." Wissel v. Ohio High School
Athletic Assn., 78 Ohio App.3d 529, 540 (1st Dist.1992). Instead, Section 323(a) "applies
only when the defendant's actions increased the risk of harm to the plaintiff relative to the risk
that would have existed had the defendant never provided the services initially." Id., citing
Turbe v. Govt. of Virgin Islands, 938 F.2d 427, 432 (3d Cir.1991). A "defendant's negligent
performance must somehow put the plaintiff in a worse situation than if the defendant had
never begun the performance." Wissel at 529, citing Turbe at 432. To prevail, a plaintiff
must "identify sins of commission rather than omission." Wissel at 529, citing Turbe at 432.
{¶ 25} In order to impose liability under Section 323(b), courts have generally required
that the plaintiff "show actual or affirmative reliance, i.e., reliance 'based on specific actions
or representations which cause the persons to forego other alternatives of protecting
themselves.'" Power v. Boles, 110 Ohio App.3d 29, 36 (10th Dist.1996), quoting Cracraft v.
City of St. Louis Park, 279 N.W.2d 801, 807 (Minn.1979).
{¶ 26} In this instance, no services were rendered. Thomas did not provide specifics
to Michael on how to navigate the trailer in order to free the tarp. While Thomas told Michael
to climb on the side and around to the back of the trailer, Michael stated in his deposition:
Q. Okay. I guess, you explained how you climbed up the ladder
and how you made your way around to the back, you reached in.
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Was that your decision where to go and how to reach in, or was
Tom giving you some go this way and move to the right, move to
the left kind of instructions?
A. Well, you just - - you couldn't reach the tarp without being on
the back.
Q. So you just went where you had to go to get to the tarp?
A. I guess, yes.
Q. You don’t remember him saying anything to you?
A. No, no.
{¶ 27} Even if Thomas had provided specifics to Michael, any statements made by
Thomas, including that he had "done it a thousand times, it ain't no big deal," when referring
to climbing onto the trailer, in no way placed Michael in a worse situation. Michael admitted
that the only way to reach the tarp was from the back of the trailer. Furthermore, Michael did
not rely on these statements. When asked whether Michael was concerned about the fender
being slick, Michael stated that he was more concerned about getting dirty at the time. He
thought he "could get up the ladder, make [his] way around, get it done and be done with it."
Consequently, there is no genuine issue of material fact regarding whether Thomas assumed
a duty to Michael.
{¶ 28} Because we find that there is no genuine issue of material fact regarding any
duty Thomas owed Michael, any argument as to proximate cause is rendered moot. Thomas
is entitled to judgment as a matter of law.
{¶ 29} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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