Benlehr v. Shell Oil Co.

• Decision Date: 20 December 1978
• Citation: 62 Ohio App.2d 1,402 N.E.2d 1203
• Parties: , 16 O.O.3d 27 BENLEHR et al., Appellants, v. SHELL OIL CO. et al.; Landrum Oil Co., Inc., Appellee. *
• Court: Ohio Court of Appeals

Page 1

62 Ohio App.2d 1

402 N.E.2d 1203, 16 O.O.3d 27

BENLEHR et al., Appellants, v. SHELL OIL CO. et al.; Landrum Oil Co., Inc., Appellee. ^*

Court of Appeals of Ohio, First District, Clinton County.

Dec. 20, 1978.

Syllabus by the Court

Where an owner of real property leases such for a use involving a recognized potentially dangerous risk to the public, he is under a duty to use a reasonable degree of care in selecting a competent lessee.

Nelson Lancione, Columbus, and J. D. Bryant, Wilmington, for appellants.

Young & Alexander, Dayton, for appellee.

PALMER, Presiding Judge.

Plaintiffs sustained serious burns over a significant portion of their bodies in an explosion and fire occurring on the premises of an automobile service station in Wilmington, Ohio. The lawsuits which followed these injuries joined as defendants the individual lessee of the service station, one Harley Doss; the Shell Oil Company, whose products were sold at the station; and the appellee herein, Landrum Oil, Inc., the lessor of the service station premises and a distributor or jobber for the Shell Oil Company. Prior to trial, the Shell Oil Company settled its differences with the plaintiffs and was dismissed upon a covenant not to sue.

The cause proceeded to trial upon the question of liability only, the issue of damages having been earlier separated by order of the trial court, and resulted in a jury verdict against the individual Doss. The defendant, Landrum Oil, Inc. (Landrum), was, however, dismissed upon a motion at the conclusion of the plaintiff's case. This appeal followed with a single assignment of error, asserting that the trial court erred in sustaining the Civ.R. 50(A) motion of the defendant Landrum because, it is argued, reasonable minds could have differed upon the issue of Landrum's liability in negligently entrusting a dangerous instrumentality to an untrained and unskilled lessee. ¹

The evidence before the trial court at the conclusion of the plaintiff's case may be summarized as follows. The president of Landrum testified, as upon cross examination, that his company was the distributor for Shell Oil Company in Highland and Clinton Counties, and that Landrum owned five service stations within the territory, including the Wilmington service station in question, which it had leased to various lessees over a ten year period. In 1973, the Wilmington station became vacant and Landrum negotiated with Harley Doss to operate the station as lessee.

Questioned as to an investigation into the experience and capacities of its prospective lessee, the president of Landrum stated that while "we normally check the appearance of a man and what his capabilities are," and that "I would ask if he had ever been a mechanic if he knew anything," he did not recall asking these questions of Doss, or what his answers, if any, may have been. Reminded that Doss's background included work principally as a kitchen helper, the defendant's president was asked:

"Q. Let's assume for purposes of this question, Mr. McCoy, that your inquiry or background check would have revealed what I have just said, would you still have leased the station to Mr. Doss?

"A. That would be questionable, sir, at the present time how far you can say whether a man is qualified sir.

"Q. In other words, there is some question in your mind, that if you had the facts as I have related them to you, as to whether or not you would lease the station to Mr. Doss?

"A. It would be a question in anyone's mind on their qualifications I do not recall exactly his qualifications, sir."

The witness stated that Shell Oil Co. conducted training programs for service station operators such as Doss, but that he did not require that Doss enroll in such programs. He issued no guidelines or instructions for the operation of the station, or the manner of conducting business, but an employee of Landrum periodically visited the premises to check the amount of gasoline used. No other recommendations or instructions in the usage of the premises were issued to lessees.

The lessee, Doss, testified that he had a ninth grade education, and that his prior work experience included "factory work" and "kitchen work," in which he ran a rough grinder and a dishwasher, respectively, and a short period behind the counter selling dairy products. He appears to have had limited experience in working on cars, and stated that he had never before worked at a service station.

Doss then testified as to the events preceding and following the explosion and fire which resulted in the injuries to plaintiffs. Doss and an employee of his had been working on an automobile inside the enclosed station premises. The automobile had apparently leaked oil and Doss's employee filled a five gallon can with gasoline from a pump and broadcast it on the floor in order to cut and disperse the spilled oil. They had commenced to sweep the resultant liquid into a drain when the gasoline was ignited by the open gas flame of a hot water heater within the building, and a flash explosion and fire rapidly followed. Doss and his employee managed to extricate themselves moments before the explosion, but the two plaintiffs, who were inside the garage area, ² were not so fortunate.

The final witness for plaintiffs was the chief of the Wilmington Fire Department, who responded to the disaster and made an investigation of the circumstances thereafter. Much of his testimony corroborated the foregoing, but in addition after being qualified as an expert therein by virtue of his experience and training both as a fireman and as the owner of a service station for about 30 years in the Wilmington area he testified as to the extraordinarily explosive capabilities of gasoline, when mixed with oxygen.

"Q. Just tell us briefly in connection with its properties for instance, whether or not it is dangerous how it should be used and handled?

"A. It is very dangerous in fact, it is more dangerous than dynamite. You can do things with gasoline one day and tried (sic ) it the next and it will blow you up. So it is classified as more dangerous than dynamite. * * * "

The Chief stated that he would never recommend gasoline as a cleaning agent, but that if it is so utilized, it should only be used outside in order to minimize the danger of explosion and fire. He stated that nonflammable solvents were available to disperse oil and grease, but that Doss had purchased or used none of these products. He also testified that he had both owned and leased service stations himself, and had engaged employees, but that he would never turn a service station over to an individual without some supervision and instruction. He further stated that he had never used gasoline as a cleaning agent in any interior space because of its dangerous propensities.

Landrum defends the granting of the motion for a directed verdict by relying on the ancient but substantially unimpeached doctrine that a lessor not in possession and control ³ is not responsible for injuries resulting from conditions on the premises or acts of negligence committed thereon by his tenant or others. Cooper v. Roose (1949), 151 Ohio St. 316, 85 N.E.2d 545; Ripple v. Mahoning National Bank (1944), 143 Ohio St. 614, 56 N.E.2d 289; Berkowitz v. Winston (1934), 128 Ohio St. 611, 193 N.E. 343; Riley v. Housing Authority (1973), 36 Ohio App.2d 44, 301 N.E.2d 884; 52 C.J.S. 32, Landlord and Tenant, § 417(3). While the doctrine is not without its critics, and not without some exceptions of recent origin (Prosser, Law of Torts 400, Section 62 (4th ed. 1971)), the general rule remains as stated in 2 Restatement of Torts 2d 239, Section 355 (1965):

"Except as stated in §§ 357 and 360-362, a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sublessee for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession."

Somewhat more relaxed rules have been applied in the case of injuries to those outside the leased premises (e. g., 2 Restatement of Torts 2d 283, Section 379A (1965) and comment b thereto), but the point is irrelevant to the instant inquiry. The theory of immunity from tort liability derives from the obvious analogy of a lease of land to a sale of land; the lessee, like the vendee, acquires an estate in the land, although for a term only, and becomes for that term the owner and occupier thereof, subject to all liabilities that attach to the possessor. See, e. g., Artman v. Cities Service Oil Co. (1960), Ohio App., 164 N.E.2d 750, 83 Ohio Law Abs. 123, for the traditional approach to the problem in a case with substantial factual similarities to the instant case, but where no issue was raised by the plaintiff that the lessor's negligence consisted in a want of due care in entrusting dangerous facilities to an unskilled tenant. The defendant, Landrum, vigorously urges this rule as dispositive.

The plaintiffs, on their part, recognizing the impediment offered by the foregoing, presented their case to the trial court as they argue here, on a theory of liability for negligent entrustment. We have accordingly been cited by plaintiffs to a variety of cases from various jurisdictions in which an employer has been held liable upon engaging an independent contractor with knowledge that the latter does not possess the requisite skill to perform the contracted work. Covington and Cincinnati Bridge Co. v. Steinbrock & Patrick (1899), 61 Ohio St. 215, 55 N.E. 618; 28 Ohio Jurisprudence 2d 357, Independent Contractors, Section 16; Annotation 8 A.L.R.2d 267, and cases cited therein. The rule is particularly apt, argue plaintiffs, when, as here, the work to be performed by the contractor is intrinsically or inherently dangerous, Pendergrass v. Lovelace (1953), 57 N.M. 661, 262 P.2d 231, or where the financial responsibility of the contractor is inadequate, Majestic Realty Associates, Inc. v. Toti...