Federal Steel & Wire Corp. v. Ruhlin Const. Co.

• Citation: 543 N.E.2d 769,45 Ohio St.3d 171
• Decision Date: 23 August 1989
• Docket Number: No. 88-1364,88-1364
• Court: United States State Supreme Court of Ohio
• Parties: FEDERAL STEEL & WIRE CORPORATION, Appellee, v. RUHLIN CONSTRUCTION COMPANY, Appellant.

Page 171

45 Ohio St.3d 171

543 N.E.2d 769

FEDERAL STEEL & WIRE CORPORATION, Appellee, v. RUHLIN CONSTRUCTION COMPANY, Appellant.

No. 88-1364.

Supreme Court of Ohio.

Submitted June 7, 1989.

Decided Aug. 23, 1989.

Syllabus by the Court

If a person exercises control over real or personal property and such person is aware that the property is subject to repeated third-party vandalism, causing injury to or affecting parties off the controller's premises, then a special duty may arise, to those parties whose injuries are reasonably foreseeable, to take adequate measures under the circumstances to prevent future vandalism.

In October 1980, appellant, Ruhlin Construction Company ("Ruhlin"), undertook to refurbish and repair portions of the Lorain-Carnegie Bridge located in Cleveland, Ohio. The appellee's, Federal Steel & Wire Corporation's ("Federal"), place of business is located directly underneath the west end of the bridge. The bridge is supported in part by a pylon which is based one hundred feet from the building and premises occupied by Federal. The entire bridge project was scheduled to be divided into two segments, one of which extended above and over Federal's premises. During the refurbishing and repair operation, Ruhlin was in exclusive control and management of the segment extending over Federal's business.

When work commenced on the bridge, chain-link barbed wire fences were erected at the east and west ends of the job site in order to keep vandals and the general public off the bridge while it was undergoing repairs. Despite the precautions taken by Ruhlin, the job site was accessible to those individuals who either walked around or climbed over the fences.

From the very beginning of the project, Ruhlin was aware of severe theft and vandalism problems common to the area. Specifically, both the job superintendent, James Knapp, and project manager for the job site, Ronald Kurtz, testified that the extraordinary crime problems were obvious and known to Ruhlin at least after the first month on the job. The severity of the vandalism and theft problems was partially attributed to the inner-city location of the project, coupled with the fact that the work site was a bridge.

Specific instances of vandalism and theft were noted by Ruhlin's employees during the course of the project. Of particular importance was the fact that prior to the acts which caused Federal's damages, separate instances of vandals throwing "rebar" and other construction materials off the bridge had been reported to Ruhlin. Other instances of vandalism and theft were stolen cables, batteries and doors, and broken glass windows, paint poured into gas tanks, and punctured tires.

Aware of these problems, Ruhlin took certain security measures by posting security guards on the bridge. The guards were on the job site after Ruhlin's workers left for the day and remained on the site until they returned the next morning. Knapp testified that when the security personnel were posted there was a notable decrease in vandalism and theft on the job site.

In November 1982, Ruhlin ceased work on the project for the winter. The project was shut down and work was to resume in the spring of 1983, weather permitting. While the project was dormant for the winter, Ruhlin left building materials on the bridge, which included significant quantities of "rebar," "high chairs" or steel chairs and concrete. However, for security reasons and other considerations, Ruhlin did remove its heavy equipment from the bridge and vandalism-prone areas to the grounds of Cleveland Builders Supply. Also, Ruhlin did not post any security guards on the bridge during the winter months when the project was dormant, specifically during the time when the alleged vandalism against Federal took place. Moreover, Ruhlin did not reinstall the barbed wire fences on the west end of the bridge during this period. Instead, steel beams were positioned horizontally, thirty inches off the ground to block cars and trucks, and a simple snow fence was erected.

In mid-December 1982, over one thousand windows were broken on Federal's premises when quantities of construction materials were thrown from the bridge onto Federal's property below. As a consequence of the vandalism, Federal's property allegedly suffered damage and loss of use. The building materials used to damage Federal's property were determined to be concrete, "rebar," and "high chairs."

As a result of the damage to Federal's premises, Federal filed suit naming Ruhlin and its insurer, Liberty Mutual Insurance Company. The trial court granted Liberty Mutual's motion to dismiss. The ruling was appealed by Federal and the court of appeals affirmed.

Therefore, the only remaining defendant was appellant Ruhlin, and the matter was tried to a jury. At the conclusion of Federal's case against Ruhlin, Ruhlin moved for a directed verdict pursuant to Civ.R. 50(A), on the grounds that it owed no special duty to Federal to prevent vandals from damaging Federal's building. The trial court granted Ruhlin's motion and Federal appealed.

The court of appeals reversed and remanded, holding that Ruhlin had a duty to undertake reasonable measures to prevent vandalism of Federal's premises during the dormant winter months.

This cause is before the court pursuant to the allowance of a motion to certify the record.

McIntyre, Kahn & Kruse Co., L.P.A., Scott H. Kahn and Mark F. Kruse, Cleveland, for appellee.

Law Offices of Jan A. Saurman and John V. Rasmussen, Lakewood, for appellant.

Millisor & Nobil, Roger L. Sabo and Gwen M. Ralph, Columbus, urging reversal for amicus curiae, Ohio Contractors Ass'n.

HOLMES, Justice.

The key issue in this case is whether Ruhlin, as the contractor for the bridge repair work, had a duty to maintain its job site in such a way as to protect against the vandalism that caused damage to Federal's property located beneath the bridge. For the reasons which follow, we hold that reasonable minds could have determined that Ruhlin had a duty toward Federal to take measures to protect against vandalism, and thus we affirm the court of appeals.

As a threshold to our inquiry, we note that in order for a trial court to grant a directed verdict pursuant to Civ.R. 50(A), it must construe the evidence most strongly in favor of the nonmoving party, and if reasonable minds could come to but one conclusion, the motion should be granted in favor of the moving party. In applying this legal standard, we must determine whether reasonable minds could have concluded that Ruhlin owed a duty to Federal to take adequate measures to protect against vandalism during the months in which Ruhlin's job site was left dormant.

The crux of Ruhlin's argument is that there was no duty owed to Federal to control the criminal conduct of unknown third persons who were throwing objects from Ruhlin's job site. We disagree.

It is fundamental that in order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury proximately resulting therefrom. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180, 472 N.E.2d 707, 710; Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732; Feldman v. Howard (1967), 10 Ohio St.2d 189, 39 O.O.2d 228, 226 N.E.2d 564. Ordinarily, there is no duty to control the conduct of a third person by preventing him or her from causing harm to another, except in cases where there exists a special relationship between the actor and the third person which gives rise to a duty to control, or between the actor and another which gives the other the right to protection. ¹ See Littleton v. Good Samaritan Hospital & Health Center (1988), 39 Ohio St.3d 86, 92, 529 N.E.2d 449, 455; Gelbman v. Second Natl. Bank of Warren (1984), 9 Ohio St.3d 77, 78, 9 OBR 280, 281, 458 N.E.2d 1262, 1263; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Potter (1925), 113 Ohio St. 591, 150 N.E. 44; Restatement of the Law 2d, Torts (1965) 122, Section 315. Thus, liability in negligence will not lie in the absence of a special duty owed by a particular defendant. Hill v. Sonitrol of Southwestern Ohio, Inc. (1988), 36 Ohio St.3d 36, 38, 521 N.E.2d 780, 782; Gelbman, supra; see, also, Feldman v. Howard, supra, at 193, 39 O.O.2d at 230, 226 N.E.2d at 567; Kauffman v. First-Central Trust Co. (1949), 151 Ohio St. 298, 306, 39 O.O. 137, 141, 85 N.E.2d 796, 800; Baier v. Cleveland Ry. Co. (1937), 132 Ohio St. 388, 391, 8 O.O. 208, 209, 8 N.E.2d 1, 2.

We have found that "[t]he existence of a duty depends on the foreseeability of the injury. * * * " Menifee v. Ohio Welding Products, Inc., supra, at 77, 15 OBR at 180, 472 N.E.2d at 710, citing Ford Motor Co. v. Tomlinson (C.A. 6, 1956), 229 F.2d 873, 59 O.O. 345; Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 190 N.E. 924; see, also, Hill v. Sonitrol of Southwestern Ohio, Inc., supra. The court in Menifee, supra, set forth the following test to be used in order to determine foreseeability: "[W]hether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act." Menifee, supra, at 77, 15 OBR at 180, 472 N.E.2d at 710, citing Freeman v. United States (C.A. 6, 1975), 509 F.2d 626; Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116, 38 O.O.2d 294, 224 N.E.2d 131; Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31, 41 O.O. 117, 90 N.E.2d 859. We recognize that there is no common-law duty to anticipate or foresee criminal activity. ² Prosser & Keeton, Law of Torts (5 Ed.1979) 201-203, Section 33; see, also, Tarasoff v. Regents of the Univ. of Cal. (1976), 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (explaining the role of special relationships, and that, absent such special relationship, a defendant has no duty to control the conduct of third persons for the benefit of others). Thus, the law usually does not require the...