Lavon R. Wehrle v. Imm Tractor Sales
| Decision Date | 16 February 1990 |
| Docket Number | WD-89-17,90-LW-0404 |
| Parties | Lavon R. WEHRLE, et al., Appellants, v. IMM TRACTOR SALES, et al., Appellees. |
| Court | Ohio Court of Appeals |
Michael D. Lorton, for appellants.
Cormac B. DeLaney, for appellee Mid-Am Bank.
Robert J. Bahret and Keith J. Watkins, for appellee Imm Tractor.
OPINION AND JOURNAL ENTRY
This case arises from an appeal of the judgment of the Wood County Court of Common Pleas.
On March 17, 1986, appellant, Lavon R. Wehrle, fell and was severely injured when a portion of the third level of a barn collapsed under him due to the age and disrepair of the structure. Mr. Wehrle attests by affidavit that he was in the barn searching for parts to a disassembled planter which he had previously purchased from appellee, Imm Tractor Sales Inc., (hereafter "Imm") in lieu of making a loan to Imm. Part of that purchase agreement included the right of Mr. Wehrle to have any parts to the planter which he could find on Imm's premises. Mr. Wehrle states that he was looking for such parts on March 17, 1986. While Mr. Wehrle confesses that he cannot recall any of the events of the day of his fall, his son attests to the fact that his father had gone to Imm to look for parts.
Imm was leasing the premises upon which the barn stood from appellee, Mid-American National Bank, at the time of the accident. Mid-Am had foreclosed on the mortgage it held to the property in December 1985, following Imm's filing for bankruptcy. Since Imm needed more time to liquidate its inventory and remove its assets, Mid-Am orally agreed to lease the property to Imm until the liquidation was completed. Mid-Am also used the barn to store a repossessed dune buggy until they could dispose of it and retained the right to show the structure or dune buggy to prospective purchasers.
On the day of appellant's fall, Mark Imm was sorting parts to sell for salvage on the third level of the barn and was throwing the parts down to the next level. While Mark was attempting to remove a door, he heard something and turned to see Mr. Wehrle standing on the ladder leading to the third level. Mark attests that he told Mr. Wehrle not to come up because of the condition of the floor, but does not remember if Mr. Wehrle responded. Mark returned to his work for a few minutes and when he turned around again, he saw that Mr Wehrle had come onto the third level and was standing about ten feet away. Mark states that he told Mr. Wehrle not to move and that he would help Mr. Wehrle down after he got the door off. However, before he was finished, Mark heard a crash and turned to see that the floor had given way, and Mr Wehrle had fallen through an area about twenty feet from where Mr. Wehrle had previously been standing.
Mr. Wehrle brought suit against both Imm and Mid-Am to recover for the injuries he suffered as a result of the alleged negligence of appellees. Mr. Wehrle's wife, Helen Wehrle, joined in the suit claiming a loss of consortium and services. Mid-Am and Imm cross-claimed against each other claiming each was entitled to indemnity or contribution from the other.
Following the filing of motions for summary judgment by appellees, a hearing was held. The trial court granted Mid-Am's motion finding that Mid-Am did not retain substantial control over the premises and, therefore, owed no duty of care to Mr. Wehrle. Imm's motion for summary judgment was denied because the court found that a genuine issue remained as to the material facts regarding Imm's liability. Both Mr. and Mrs. Wehrle and Imm appealed from the court's decision. Imm's appeal was dismissed, however, because the order denying a motion for summary judgment is not a final, appealable order.
Appellants assert as error on appeal the following:
I."The Trial Court erred in granting Defendant Mid-Am National Bank's motion for summary judgment in deciding that Plaintiff's comparative negligence was the sole proximate cause of his injuries.
II."The Trial Court erred in granting Defendant Mid-Am National Bank's motion for summary judgment in deciding that Defendant Mid-Am National Bank did not have either actual or constructive notice of the defectiveness of the barn in which Plaintiff fell."
Our standard of review on appeal from the granting of summary judgment is dictated by Civ.R. 56(C). Summary judgment is appropriate when the evidence reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law when the evidence is construed in a light most favorable to the non-moving party. Civ.R. 56(C). Whenever there are conflicting facts and inferences, summary judgment is inappropriate. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7. Generally, negligence actions are not capable of resolution by summary judgment due to the factual determinations necessary in a negligence action. Benjamin v. Deffet Rentals, Inc. (1981), 66 Ohio St.2d 86, 88, and Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272, 274. However, where the facts are clear and the key issue is whether one party owed another a duty of care, summary judgment may be utilized to resolve the dispute.
In their first assignment of error, appellants contend that the trial court erroneously found that Mr. Wehrle was contributorily or comparatively negligent. Upon a review of the court's opinion, however, we do not agree that the court found that Mr. Wehrle was negligent. The court simply stated that Mid-Am owed no duty of care to Mr. Wehrle and, therefore, that a negligence action could not be maintained against it. The negligence of Imm and Mr. Wehrle are issues which were left to be resolved by trial.
Consequently, we find that appellants' first assignment of error is not ripe for review and, therefore, it is not well-taken.
In their second assignment of error, appellants contend that there was sufficient evidence before the court to prove that Mid-Am knew or should have known of the dangerous condition of the barn. Specifically, appellants point to the extremely low appraisal value of the property as circumstantial evidence of Mid-Am's actual or constructive knowledge of the defects in the barn's structure. Furthermore, appellants argue that because Mid-Am showed the premises to prospective buyers and stored property on the premises, it had actual or constructive knowledge of the defects. Since Mid-Am allegedly had knowledge of the structural defects at the time the lease was made, appellants contend that Mid-Am is liable for any injury caused by such a defect relying upon the authority of Shindelbeck v. Moon (1877), 32 Ohio St. 264.
Generally, the owner of leased premises who is out of control and possession of the leased premises is not liable for injuries to the lessee's invitees caused by the physical condition of the premises. Wills v. Frank Hoover Supply (198...
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