Huff v. Firstenergy Corp.

• Decision Date: 05 October 2011
• Docket Number: No. 2010–0857.,2010–0857.
• Parties: HUFF et al., Appellees, v. FIRSTENERGY CORP. et al.; Ohio Edison Company et al., Appellants.
• Court: Ohio Supreme Court

130 Ohio St.3d 196

2011 -Ohio- 5083

957 N.E.2d 3

HUFF et al., Appellees,

v.FIRSTENERGY CORP. et al.; Ohio Edison Company et al., Appellants.

No. 2010–0857.

Supreme Court of Ohio.

Submitted May 24, 2011.Decided Oct. 5, 2011.

[Ohio St.3d 197] Syllabus of the Court

For an injured third party to qualify as an intended third-party beneficiary under a written contract, the contract must indicate an intention to benefit that third party.

Betras, Kopp & Harshman, L.L.C., and David Betras, Canfield, for appellees.

Harrington, Hoppe & Mitchell, Ltd., and John T. Dellick, Youngstown, for appellant Ohio Edison Company.

Reminger Co., L.P.A., Clifford C. Masch, Brian D. Sullivan, and Martin T. Galvin, Cleveland, for appellant Asplundh Tree Expert Company.LANZINGER, J.

{¶ 1} This discretionary appeal was accepted in a personal-injury case involving a summary judgment that was reversed by the Eleventh District Court of Appeals. We are asked to determine whether a person injured by a falling tree located near, but outside, the utility's easement is an intended third-party beneficiary of a contract between a utility and its service contractor. We hold that under the facts of this case, a contract between a utility and a contractor that provides that “[t]he Contractor shall plan and conduct the work to adequately safeguard all persons and property from injury” does not create a duty on the part of the contractor, once the work has been completed, to protect a third party from injury.

I. Case Background

{¶ 2} In June 2004, appellee Lisa G. Huff was injured during a walk along Kings Grave Road in Hartford Township. She alleges that during a heavy thunderstorm, a large sugar maple tree split in two approximately 25 feet above the ground, and a large limb from the tree struck her, causing serious and permanent injuries. The tree was located on property owned by Gerald and Michelina Braho and stood about 30 feet from the center of Kings Grave Road and 20 feet from utility lines owned and maintained by appellant Ohio Edison Company, a subsidiary of FirstEnergy Corp.

{¶ 3} Ohio Edison maintained an easement near the tree, but the tree was outside the easement. The tree did not present a hazard or threat to the power lines. Ohio Edison had hired appellant Asplundh Tree Expert Company to inspect trees and vegetation along its power lines in this area and to remedy any situation in which trees or vegetation might affect the lines. Ohio Edison and its contractors carry out this work to ensure that adequate clearance is maintained around electric lines. Generally, Ohio Edison deferred to Asplundh's decisions [Ohio St.3d 198] regarding tree and vegetation maintenance and would perform an overview inspection of the electrical circuit only to determine whether any vegetation was growing into the electrical wires or equipment. Asplundh had last been in the area where Huff's injury occurred in May 2001.

{¶ 4} Huff, along with her husband, Reggie D. Huff, and children filed suit against Ohio Edison and Asplundh, as well as FirstEnergy ¹ and the Brahos.² The Huffs alleged that Ohio Edison and Asplundh were liable for Huff's injuries based upon their failure to inspect, maintain, and remove the tree or to warn the landowner and the public of the danger raised by the tree.³

{¶ 5} Ohio Edison and Asplundh filed motions for summary judgment. Ohio Edison argued that it had no prior knowledge that the tree was dangerous, that it owed and assumed no duty to Huff regarding the tree, and that it was not negligent and did not proximately cause or contribute to Huff's injuries. Asplundh argued that it owed no duty to Huff and that its activities did not proximately cause the injury to Huff. The Huffs responded that Ohio Edison had contracted with Asplundh to inspect and maintain trees within the easement and that Asplundh failed to recognize that the tree in question was diseased and a hazard and failed to remove the tree when it was on site in May 2001. The Huffs also argued that Ohio Edison was responsible for maintaining trees within and around its easement, that Ohio Edison was aware of the tree based upon its location within an inspection zone, and that Ohio Edison had a duty to remove the diseased tree.

{¶ 6} The trial court found that while the tree leaned approximately ten degrees away from the power lines, “there is absolutely no credible evidence about when the tree began to lean or if it was leaning because of the way it grew.” It also noted that one of the Huffs' experts admitted that he could not testify to a reasonable degree of probability as to when the tree became a hazard. Finding no evidence that Ohio Edison or Asplundh actually inspected the tree or removed any branches, the court concluded that the Huffs failed to show that appellants ever had actual or constructive notice of any decay of the tree. The court found that due to the tree's location—leaning away from the power lines [Ohio St.3d 199] with no limbs near the power lines—Ohio Edison and Asplundh owed no duty to the Huffs. With respect to Ohio Edison, the court also found that “Ohio Edison * * * did not have actual or constructive notice of any defects in this tree located on someone else's property” and that there was a “complete lack of any evidence that * * * Ohio Edison had any notice whatsoever that the interior of one tree on a rural township road was decaying.” After examining the contract between Ohio Edison and Asplundh, it concluded that the Huffs were not third-party beneficiaries under the contract. It accordingly granted appellants' motions for summary judgment.

{¶ 7} On appeal, the Huffs argued that the trial court erred when it found that Ohio Edison and Asplundh had no duty to Lisa Huff. Before considering whether appellants had a duty under the contract, the court of appeals first determined that no duty under traditional tort law existed: “The duty analysis in this case * * * does not turn on the foreseeability of the danger which caused [Huff's] injury. Rather, it turns on the language of the contract into which Ohio Edison and Asplundh entered.” Trumbull App. No. 2009–T–0080, 2010-Ohio-1456, 2010 WL 1253754, at ¶ 52. As a result, it examined the contract between Ohio Edison and Asplundh and held that there was a genuine issue of material fact regarding whether Huff had enforceable rights under the contract as an intended third-party beneficiary. Id. at ¶ 62. In reaching this conclusion, the court stated that a portion of the contract providing that “[Asplundh] shall plan and conduct the work to adequately safeguard all persons and property from injury” could be read in two ways: (1) a narrow reading that provides Asplundh must protect all persons from injury while Asplundh works on the site or (2) a broad reading that requires Asplundh to protect all persons from injury at all times, regardless of when the work is done. Id. at ¶ 60–61. The court accordingly held that the contract was ambiguous and reversed the trial court's grant of summary judgment to Ohio Edison and Asplundh. Id. at ¶ 61–64.

{¶ 8} We first denied jurisdiction in this case. 126 Ohio St.3d 1546, 2010-Ohio-3855, 932 N.E.2d 340. On reconsideration, we granted jurisdiction on all propositions of law raised by Ohio Edison and Asplundh. 126 Ohio St.3d 1620, 2010-Ohio-5101, 935 N.E.2d 856.

II. Analysis

{¶ 9} Ohio Edison's and Asplundh's propositions of law raise a number of challenges to the court of appeals' holding that they owed a duty to the Huffs as intended third-party beneficiaries of the contract between Ohio Edison and Asplundh. Because we hold that the contract between Ohio Edison and Asplundh did not create any duty to the Huffs as third-party beneficiaries, we reverse the judgment of the court of appeals.

[Ohio St.3d 200] {¶ 10} In Hill v. Sonitrol of Southwestern Ohio, Inc. (1988), 36 Ohio St.3d 36, 40, 521 N.E.2d 780, we adopted the statement of law in Restatement of the Law 2d, Contracts (1981), Section 302. Section 302(1)(b) provides that “a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and * * * the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” Comment e to Section 302 limits the creation of duties to third parties: “[U]nless the third person is an intended beneficiary as here defined, no duty to him is created.”

{¶ 11} In applying this rule, we referred to Norfolk & W. Co. v. United States (C.A.6, 1980), 641 F.2d 1201. We adopted language from Norfolk & W. Co. explaining the “intent to benefit” test, which is used to determine whether a third party is an intended beneficiary of a contract: “ ‘Under this analysis, if the promisee * * * intends that a third party should benefit from the contract, then that third party is an “intended beneficiary” who has enforceable rights under the contract. If the promisee has no intent to benefit a third party, then any third-party beneficiary to the contract is merely an “incidental beneficiary,” who has no enforceable rights under the contract.’ ” Hill at 40, 521 N.E.2d 780, quoting Norfolk & W. Co. at 1208.

{¶ 12} Courts generally presume that a contract's intent resides in the language the parties chose to use in the agreement. Shifrin v. Forest City Ents., Inc. (1992), 64 Ohio St.3d 635, 638, 597 N.E.2d 499. “Only when the language of a contract is unclear or ambiguous, or when the circumstances surrounding the agreement invest the language of the contract with a special meaning will extrinsic evidence be considered in an effort to give effect to the parties' intentions.” Id. at syllabus. Ohio law thus requires that for a third party to be an intended beneficiary under a contract, there must be evidence that the contract was intended to directly benefit that third party. Generally, the parties' intention to benefit a third party...