Jeffers v. Olexo
| Decision Date | 07 June 1989 |
| Docket Number | No. 88-470,88-470 |
| Citation | 43 Ohio St.3d 140,539 N.E.2d 614 |
| Parties | , 54 Ed. Law Rep. 287 JEFFERS, Appellee, v. OLEXO et al.; James C. Dawes Company, Inc. et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
A person is not liable for proximately causing an injury if, under all of the circumstances, he did not foresee and, acting as a reasonably prudent person, could not have foreseen the consequences of his alleged negligent acts.
The Belmont County Fair was held on September 5, 1984 through September 9, 1984. The Belmont County Agricultural Society ("Agricultural Society") 1 owns the fairgrounds and is responsible for the property during the fair.
On September 5, 1984, the James C. Dawes Company, Inc. ("Dawes"), a distributor of helium for the Union Carbide Corporation, filled an order for three helium tanks which would be used to inflate balloons for the Citizens for Bob Olexo Campaign Committee ("Campaign Committee"). Dawes purchased the helium from Union Carbide; however, the tanks containing the helium were owned by Dawes. That same day an employee of Dawes delivered the three helium-filled tanks to the Democratic Party tent at the fairgrounds for the Campaign Committee. An agreement was entered into between Dawes and the Campaign Committee regarding the return of the tanks to Dawes by the Campaign Committee.
The tanks were left at the fairgrounds by the Campaign Committee at the close of the fair, and were leaning against an outside commercial building. This building was ten to twelve feet from a walkway which connected the main entrance of the fairgrounds with the football stadium near the stadium's parking lot.
After the fair concluded on September 9, 1984, no one from the Campaign Committee, Dawes, or the Agricultural Society removed the tanks from their location.
The Agricultural Society and the St. Clairsville Board of Education ("School Board") had entered into a long-term lease agreement whereby the School Board leased property at the fairgrounds from the Agricultural Society for the purpose of holding athletic and other school events. On September 28, 1984, the date of a football game, the helium tanks remained leaning against the commercial building.
Philip C. Jeffers III, age fourteen and plaintiff's decedent, purchased a ticket to attend the football game on September 28, 1984. Jeffers, in the company of other children, discovered the helium tanks. Jeffers inhaled some helium from one of the tanks, collapsed and died.
The helium tanks contained warnings which stated, in part:
The decedent's father, Philip C. Jeffers, Jr., plaintiff-appellee, filed a personal injury and wrongful death action on February 13, 1986. An amended complaint was filed on July 15, 1986 against several defendants, including Dawes, the Agricultural Society, the School Board, Union Carbide, and Bob Olexo.
Motions for summary judgment were filed and subsequently granted by the trial court in favor of all defendants. Jeffers appealed the judgment in favor of Dawes, the Agricultural Society, the School Board, and Union Carbide.
Appellee assigned as error in the court of appeals that the trial court erred in holding that Dawes and Union Carbide owed no duty to warn of the dangerous properties of the helium; that Dawes had no duty to control or retrieve the helium tanks delivered to the fairgrounds; that the Agricultural Society and the School Board owed no duty to the decedent; that decedent was contributorily negligent or had assumed the risk of his injuries; and that the award of attorney fees to Dawes for delay by appellee at a deposition was proper.
The court of appeals held that the warning on the helium tanks was adequate as a matter of law and found appellee's first assignment of error not well-taken. It sustained the second Dawes and the Agricultural Society appealed this decision. The cause is now before this court upon the allowance of a motion to certify the record.
assignment of error, finding that summary judgment as to Dawes was improper because there was a genuine issue of material fact as to whether a "breach was occasioned by not warning of all pertinent hazards, or by failing to effectuate the return and/or retrieval of the tanks" from the fairgrounds. On appellee's third assignment of error, the appellate court also reversed the summary judgment as to the Agricultural Society, holding that even if the decedent were a trespasser, the Agricultural Society might still have owed a duty to the decedent. Appellee's other assignments of error were found not well-taken.
Graham, McClelland, McCann & Ransbottom Co., L.P.A., and Clay P. Graham, Zanesville, for appellee Jeffers.
Hanlon, Duff & Paleudis Co., L.P.A., and John G. Paleudis, St. Clairsville, for appellant James C. Dawes Co., Inc.
Charles H. Bean, St. Clairsville, for appellant Belmont County Fair Board.
McNamara & McNamara, Columbus, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., William H. Woods, Keith McNamara, Columbus, and S. Gordon Elkins, Philadelphia, Pa., urging reversal for amicus curiae, Nat. Welding Supply Ass'n.
We will first consider whether a question of material fact existed as to Dawes, thus making summary judgment inappropriate.
The court of appeals held that material questions of fact existed as to Dawes' duty to control or retrieve the helium tanks in spite of the agreement entered into by the Campaign Committee with Dawes. This action sounds in negligence.
As to the elements of a cause of action in negligence it can be said that * * * " Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180, 472 N.E.2d 707, 710. See, also, Kauffman v. First-Central Trust Co. (1949), 151 Ohio St. 298, 306, 39 O.O. 137, 141, 85 N.E.2d 796, 800.
Thus, the existence of a duty is fundamental to establishing actionable negligence. (Footnotes omitted.) 70 Ohio Jurisprudence 3d (1986) 53-54, Negligence, Section 13. Only when one fails to discharge an existing duty can there be liability for negligence. See Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 127, 47 O.O.2d 282, 283, 247 N.E.2d 732, 733.
Whether a duty exists depends largely on the foreseeability of the injury to one in the plaintiff's position. Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 338, 190 N.E. 924, 926; 70 Ohio Jurisprudence 3d (1986) 51, Negligence, Section 11.
" * * * If the actor's conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not make the actor liable to the persons so injured." 2 Restatement of the Law 2d, Torts (1965), Section 281, Comment c.
Hence in Menifee, supra, we focused on whether appellees therein should have foreseen that the air supply system would be used by General Electric for breathing purposes in addition to providing power for air tools. We found that the " * * * foreseeability of harm usually depends on the defendant's knowledge." Id., 15 Ohio St.3d at 77, 15 OBR at 180-181, 472 N.E.2d at 710. Because none of the appellees knew of this additional use, we held that they "could not have foreseen or reasonably anticipated the decedent's injuries and, as a matter of law, cannot be held liable for negligence. * * * " Id. at 77, 15 OBR at 181, 472 N.E.2d at 710.
Likewise in Clemets v. Heston (1985), 20 Ohio App.3d 132, 138, 20 OBR 166, 172, 485 N.E.2d 287, 294, the appellate court found that a police officer could not be liable for a man's suicide. The court noted that no events forewarned the police officer that the man arrested was especially despondent or suicidal. * * * " (Emphasis sic.)
In Gedeon, supra, foreseeability again was the central issue. There, defendant's agent stepped into the middle of traffic on a busy street, causing an accident as well as injury to plaintiff's decedent. Id., 128 Ohio St. at 338, 190 N.E. at 926....
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