Routzahn v. Garrison, 2006 Ohio 3652 (Ohio App. 7/14/2006)

• Decision Date: 14 July 2006
• Docket Number: C.A. No. 21190.
• Citation: 2006 Ohio 3652
• Parties: Russell E. Routzahn, et al., Plaintiff-Appellants, v. Herman Garrison, Defendant-Appellee.
• Court: Ohio Court of Appeals

Page 1

2006 Ohio 3652

Russell E. Routzahn, et al., Plaintiff-Appellants, v. Herman Garrison, Defendant-Appellee.

C.A. No. 21190.

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on July 14, 2006.

Civil Appeal from Common Pleas Court, T.C. Case No. 04-CV-03641

Charles F. Shane, Atty. Reg. #0062494, 6 N. Main Street, 400 National City Center, Dayton, Ohio 45402, Attorney for Plaintiff-Appellants.

David T. Davidson, Atty. Reg. #0067035, 127 N. Second Street, Hamilton, Ohio 45011, Attorney for Defendant-Appellee.

OPINION

BROGAN, J.

{¶ 1} In this action, Russell and Clella Routzahn appeal from a summary judgment decision granted in favor of Defendant, Herman Garrison. Mr. Routzahn suffered personal injuries when he fell off a platform attached to an International Farm-All tractor that Garrison was driving. After the accident, Routzahn and his wife filed suit against Garrison, claiming that Garrison had operated the tractor in a negligent or reckless manner. They also claimed that Garrison had negligently designed and built the wooden platform on which Routzahn was riding at the time of the accident. The trial court rejected the negligent design claim because Garrison was not an individual contemplated by the products liability statutes. The court also rejected negligence claims because the danger of falling from the platform was an "open and obvious" danger of which Mr. Routzahn was well aware.

{¶ 2} The Routzahns now appeal, asserting the following assignments of error:

{¶ 3} "I. The trial court erred by holding that the absence of guardrails on a platform attached to a farm tractor constituted an open and obvious danger.

{¶ 4} "II. The trial court erred by finding an open and obvious danger despite Mr. Garrison's active participation in Mr. Routzahn's work.

{¶ 5} "III. The trial court erred by applying the open and obvious danger doctrine to a condition which Mr. Routzahn was required to encounter in the normal performance of his employment related duties and responsibilities.

{¶ 6} "IV. The trial court erred by converting Herman Garrison's common law negligent design claim into a products liability action under the Ohio Products Liability Act (O.R.C. 2307.71 et seq.)."

{¶ 7} After considering the evidence and applicable law, we find the assignments of error without merit. Accordingly, the judgment of the trial court will be affirmed.

II

{¶ 8} The only items of evidence submitted to the trial court were the deposition of Mr. Routzahn and an affidavit from Mr. Routzahn that was attached to his memorandum opposing summary judgment. In the deposition, Routzahn indicated that for many years, he had owned a farm of about 350 acres, where he raised cattle and grew corn. In 1984, Routzahn sold the farm because he intended to retire, but instead went to work on a large farm of about 750 acres that was owned by Harriet Steel. Routzahn worked on Steel's farm for about 13 years, until he was around 76 years old. Steel raised cattle, hogs, corn, wheat, and soybeans, and Routzahn did general farm work such as he had done on his own farm. Needless to say, Routzahn spent many years around farm equipment like tractors and wagons.

{¶ 9} In the late 1990's, Routzahn also helped out his cousin, Herman Garrison, on a small farm of about 40 acres that Garrison owned. Garrison raised soybeans, wheat, and hay, but needed help because he had undergone eye surgery. Routzahn helped Garrison with planting, harvesting, and general farm work for about two years. Routzahn was paid around $7.00 an hour for his work, but Garrison did not take out taxes or withhold money for social security and so forth.

{¶ 10} The accident happened on May 31, 2002. On that day, Routzahn and Garrison had been out working in the field and were coming in around noon, to eat dinner. They had two John Deere tractors out in the field as well as an International Farm-All tractor (Farm-All). Garrison drove one John Deere tractor, planting soybeans, and Routzahn drove the other John Deere, working ground to get it ready for cultivating. They used the Farm-All to drive back and forth between the barn and the field.

{¶ 11} The Farm-All had one seat, which was occupied by the person who was driving. Garrison had also built a platform on the back of the Farm-All, where another person could ride. Routzahn testified that this platform was well-built and was well-made. The platform had guardrails but they were not in place at the time of the accident.

{¶ 12} On the day of the accident, Garrison had loaded soybean seed bags onto the platform. When the men drove back to the barn, Routzahn was sitting on the bags of soybeans. Routzahn was aware that the bags were made of paper and were slick. He had loaded lots of bags of soybeans before and knew they were slick.

{¶ 13} The distance from the field to the house was about a quarter mile. Garrison drove down a lane and turned left into his barn lot. Garrison was driving normally and was not weaving. He was not going at a high rate of speed, because the barn lot was only sixty feet wide. Consequently, Garrison would not have been able to speed. When Garrison turned into the lot, the bags slipped, and Routzahn fell off, onto a concrete pad, and broke his hip.

{¶ 14} In his deposition, Routzahn said several times that Garrison did not do anything wrong. Routzahn said the platform was well-built and that he had been on it before the day of the accident. The platform was not unsafe. Routzahn also said Garrison was not driving recklessly and that Garrison turned into the lane as he normally did. Routzahn said that he did not think Garrison had done anything wrong, and was not at fault for the injury.

{¶ 15} Based on the above facts, Garrison moved for summary judgment. In responding to the motion, Routzahn filed an affidavit, indicating that the platform had guardrails that were not in place the day of the accident. Routzahn claimed that he believed Garrison should have been more careful in operating the tractor over uneven ground and in turning into the barn lot. Routzahn also stated that Garrison should have designed the platform with the means for a passenger to stabilize himself in case the passenger lost balance due to the tractor's operation. Finally, Routzahn stated that his responses about Garrison's degree of fault for the accident resulted from an "instinctual defensive reaction" to questioning concerning the negligence of a life-long friend and close family member. Routzahn attributed his favorable deposition testimony to a reluctance to blame his cousin for the accident.

{¶ 16} Garrison filed a motion to strike the affidavit because it was directly contradictory to Routzahn's deposition testimony. The trial court sustained the motion in part, and struck the paragraphs in which Routzahn changed his testimony about fault and explained his reasons for the change. The court's decision was based on a finding that these statements were made in bad faith for the purpose of retracting damaging evidence.

{¶ 17} In the first assignment of error, Routzahn contends that the absence of guardrails on the platform was not so open and obvious a danger as to relieve Garrison from owing any duty of care. We disagree with this contention.

{¶ 18} In Armstrong v. Best Buy Co., Inc. (2003), 99 Ohio St.3d 79, 80, 2003-Ohio-2573, 788 N.E.2d 1088, the Ohio Supreme Court reaffirmed the viability of the open-and-obvious doctrine, "which states that a premises-owner owes no duty to persons entering those premises regarding dangers that are open and obvious." 2003-Ohio-2573, at ¶5, citing Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 233 N.E.2d 589, paragraph one of the syllabus. The Ohio Supreme Court explained in Armstrong that:

{¶ 19} "[t]he rationale underlying this doctrine is `that the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves.' * * * A shopkeeper ordinarily owes its business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn its invitees of latent or hidden dangers. * * * When applicable, however, the open-and-obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claims." (Citations omitted).

{¶ 20} In Armstrong, the Ohio Supreme Court went on to stress that: {¶ 21} " `[t]he * * * characterization of the open and obvious doctrine as a "defense" that should be submitted to the jury as part of the comparison of the relative fault of the parties overlooks the simple truism that where there is no duty there is no liability, and therefore no fault to be compared.' " Id at ¶11 (citation omitted).

{¶ 22} In the present case, the lack of a guardrail was an open and obvious danger of which Routzahn should have been aware. See Morris v. Hothem Investments, Ltd., Wayne App. No. 03CA0077, 2004-Ohio-4869, at ¶12-17 (affirming trial court grant of summary judgment, based on the fact that the presence of stairs and absence of a guardrail were such open and obvious conditions that plaintiff should have been aware of the dangers). See, also, Primavera v. Guthery (June 24, 1996), Marion App. No. 9-96-11, 1996 WL 355042,*2 (lack of guardrails in hayloft and walkway were open and obvious dangers precluding recovery by plaintiff for injuries sustained when she fell).

{¶ 23} Furthermore, not only was the lack of a guardrail an obvious danger, Routzahn also testified that he knew the seed bags were slippery, as he had handled them many times. Garrison, therefore, had no duty to warn Routzahn about the platform, or about the possibility that he might fall while sitting on seed bags.

{¶ 24} In Simpson v. Concord United Methodist Church, Montgomery App. No. 20382, 2005-Ohio-4534, we rejected an attempt to find a property owner liable...