Martin v. Lambert, 12CA7.

Decision Date25 February 2014
Docket NumberNo. 12CA7.,12CA7.
Citation8 N.E.3d 1024
PartiesBrewce MARTIN, Plaintiff–Appellant, v. Ray LAMBERT, Defendant–Appellee.
CourtOhio Court of Appeals


Janet G. Abaray, Calvin S. Tregre, Jr., and David C. Harman, Burg Simpson Eldredge Hersh & Jardine, P.C., Cincinnati, OH, for appellant.

Deborah J. Mandt, Columbus, OH, for appellee.


{¶ 1} Brewce Martin suffered an injury on property Ray Lambert owned, but had allowed his son to use as an automobile service center. Martin appeals a summary judgment in Lambert's 1 favor on Martin's negligence and negligent entrustment claims. Martin argues the trial court erred as a matter of law because Lambert owed Martin a duty to warn him of the son's unsafe business practices and incompetency to operate an automobile service center. Martin additionally contends that genuine issues of material fact remain about whether Lambert breached his duty to exercise reasonable care and whether Lambert's breach of duty proximately caused Martin's injuries. Because Lambert did not occupy or control his son's business premises, Lambert did not owe Martin a duty to protect Martin from the conduct or condition that caused Martin's injury. Consequently, the trial court properly entered summary judgment in Lambert's favor on Martin's negligence claim.

{¶ 2} Martin also asserts that Lambert negligently entrusted the business premises to his son. Martin claims Lambert's son lacked the experience and expertise to operate an automobile service center; thus, allowing the son to use the premises resulted in an inherent danger. Even if we agree with Martin that a landowner may be liable under a negligent entrustment theory when entrusting real property to another for an inherently dangerous use, as a matter of law Lambert's son's automobile service center was not inherently dangerous. Accordingly, we overrule Martin's assignment of error and affirm the trial court's judgment.


{¶ 3} After purchasing a used truck, Martin needed to put new rims on it. He removed the existing rims and tires and looked in his collection of rims to find suitable ones to put on the truck. Martin believed he chose four 16–inch rims, but he mistakenly chose four 16.5–inch rims. Martin then took his 16.5–inch rims and 16–inch tires to Rutland Service Center in order to have the tires placed on the rims.

{¶ 4} Shawn Lambert, Ray Lambert's son, owned and operated Rutland Service Center, although Ray Lambert owned the property where the business was located. The Lamberts did not enter into any formal written or verbal agreement governing this relationship, but Ray allowed Shawn to open the business in 2003. Shawn had owned and operated it, rent-free, continuously since that time.

{¶ 5} When Martin arrived at Rutland for the “ten[th] to a hundred[th] time,” he instructed Shawn to put the tires on the rims he brought to the shop. At the time no one recognized that the rims and the tires were mismatched. Martin entered the service area and assisted Shawn with mounting the tires. As Martin used an air hose while attempting to place one of the 16–inch tires on a 16.5–inch rim, the tire exploded and injured Martin.

{¶ 6} Martin subsequently filed a complaint against Ray Lambert and alleged that Lambert failed to maintain the premises in a reasonably safe condition and that he negligently entrusted the premises to his son.

{¶ 7} Lambert filed a summary judgment motion and conceded that Martin was a business invitee and that Lambert owed him a duty to warn of any latent dangers Martin himself had created. However, Lambert asserted he did not own, operate, or control the business but merely owned the land. Therefore, he could not be held liable for Martin's injury, which occurred on his son's business premises and arose out of his son's business operation. Essentially, Lambert contended that he did not owe any duty to Martin for the premises or conditions outside his control. Lambert also denied that he negligently entrusted the property to his son.

{¶ 8} The trial court granted Lambert's summary judgment motion. The court determined that Lambert did not negligently entrust the building to his son and that Lambert was not negligent under a premises liability theory because “an owner of property [does not have] a duty to warn invitees about the alleged incompetency of its tenants.”


Appellant raises one assignment of error:

“The trial court erred to the prejudice of plaintiff-appellant in granting defendant-appellee's motion for summary judgment.”


{¶ 9} In his sole assignment of error, Martin argues that the trial court erred by entering summary judgment in Lambert's favor. Although he raises several reasons why the court improperly entered summary judgment in Lambert's favor, we find the question of Lambert's duty to be dispositive of this case.

{¶ 10} Martin contends that the court incorrectly determined that Lambert did not owe him a duty. Martin asserts that Lambert, the owner of the property upon which Martin suffered his injury, owed him a duty to exercise ordinary care and to protect Martin by maintaining the premises in a reasonably safe condition and by warning him of any dangers of which Lambert had knowledge. Martin argues that this duty required Lambert to warn Martin of his son's alleged inexperience and incompetence, which Martin asserts was a defect in the premises. Martin claims that Lambert owed him this duty even though Lambert did not own or operate his son's business. Martin contends that because Lambert was the ultimate owner of the property where his son operated the business, Lambert necessarily maintained control of the business premises and thus had a duty to warn Martin of the latent danger associated with his son's alleged incompetency. Martin argues that the landlord-out-of-possession-and-control exception does not absolve Lambert of liability for negligence because Lambert and his son had not entered into a formal lease agreement.

{¶ 11} Martin also argues that Lambert may be liable for negligently entrusting the property to his son for an alleged inherently dangerous use.

{¶ 12} Lambert agrees that Martin was a business invitee and that Lambert owed Martin a duty to warn of “any latent or hidden danger with regard to the building or grounds.” However, Lambert contends this duty is limited to the buildings or grounds that Lambert occupied and controlled but does not extend to any buildings or grounds that he merely owned and permitted his son to use. Lambert asserts that he did not owe Martin any duty relating to his son's business or business premises because Lambert did not own or have any control over his son's business operation, which was the ultimate cause of Martin's injury.

{¶ 13} Lambert also asserts that his son's business operation is not an inherently dangerous use as a matter of law, so negligent entrustment does not apply.


{¶ 14} We review a trial court's summary judgment decision using a de novo standard of review. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Under Civ.R. 56, a trial court may grant summary judgment when the movant establishes that (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.’ M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12, quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C); accord Esber Beverage Co. v. Labatt USA Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9.


{¶ 15} A successful negligence action requires a plaintiff to establish that (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant's breach, the plaintiff suffered injury. E.g., Texler v. D.O. Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998); Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). If a defendant points to evidence illustrating that the plaintiff will be unable to prove any one of the foregoing elements, and if the plaintiff fails to respond as Civ.R.56 provides, the defendant is entitled to judgment as a matter of law. Lang v. Holly Hill Motel, Inc., 4th Dist. Jackson No. 06CA18, 2007-Ohio-3898, 2007 WL 2199723, ¶ 19, affirmed, 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120.


{¶ 16} Duty is a threshold question in a negligence case. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088 ¶ 13; Jackson v. Pike County Bd. Of Commr., 4th Dist. Pike No. 10CA805, 2010-Ohio-4875, 2010 WL 3902618, ¶ 15. ‘Duty, as used in Ohio tort law, refers to the relationship between the plaintiff and the defendant from which arises an obligation on the part of the defendant to exercise due care toward the plaintiff.’ Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 23, quoting Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989). ‘If there is no duty, then no legal liability can arise on account of negligence. Where there is no obligation of care or caution, there can be no actionable negligence.’ Jeffers, 43 Ohio St.3d at 142, 539 N.E.2d 614, quoting 70 Ohio Jurisprudence 3d (1986) 53–54, Negligence, Section 13 (footnotes omitted).

{¶ 17} The existence of a duty is a question of law for a court to decide, even if resolving that question requires the court to consider the facts or evidence. Grover...

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