Frederick v. Bosley et al
Filing
83
ORDER granting in part 42 Curry Defendants' Motion for Summary Judgment as to Plaintiff's claims asserted against them. The motion is DENIED with respect to the claims asserted by the Bosleys against the Currys in their crossclaim as det ailed within the body of this Order. Such claims shall proceed to trial; denying 51 Bosley Defendants' Motion for Summary Judgment; denying 52 Plaintiff's Motion for Summary Judgment. This matter shall proceed to trial by jury as scheduled. Signed by Magistrate Judge Stephanie K. Bowman on 7/29/2016. (km)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LEANNE FREDRICK,
Civil Action No. 1:14-cv-631
Plaintiff,
Bowman, M.J
vs.
BRADD BOSLEY, et al.,
Defendants.
ORDER
This is a diversity action in which Plaintiff’s amended complaint asserts claims for
negligence against Defendants Bradd Bosley and Stephanie Bosley (the “Bosleys”),
Clifton Curry and Wilma Curry (the “Currys”), John Doe Contracting Company, and
Delbert Burton. This matter is before the Court pursuant to the parties’ cross-motions
for summary judgment (Docs. 42, 51, 52) and their responsive memoranda. The parties
have consented to disposition of this action by the Magistrate Judge pursuant to 28
U.S.C. § 636(c). (See Doc. 10). The motions are fully briefed and will be addressed in
turn.
I.
Undisputed Facts and Procedural History
On August 11, 2012, the plaintiff and her boyfriend, Josh Sellers, arrived at the
home of the Bosleys. (Doc. 49, Frederick depo. p.19, L 12-17). Josh Sellers and Bradd
Bosley were great friends from the same hometown. (Doc. 46, Bradd Bosley depo. p. 8,
L 22 to p. 9, L 16). Mr. Bosley invited Mr. Seller to the concerned house because the
Bosleys had recently purchased the home, and had an upcoming wedding that Mr.
Sellers was a part of. (Id. p. 9, L 6-8).
Later that morning, Stephanie Bosley was drinking coffee on the deck and Ms.
Frederick joined her. (Doc. 49, Frederick depo. p. 23, L 5-15). Eventually, Mr. Bosley
and Mr. Sellers joined them on the deck to socialize. (Doc. 47, Bradd Bosley depo. p.
54, L 3-5; Frederick depo p. 25, L 3-14). While they were talking, the deck collapsed.
(Doc. 47, Bradd Bosley depo. p 55, L 14-18; Frederick depo. p. 26, L 4-7). Plaintiff
sustained serious injuries to her neck and back as a result of the deck collapse.
Notably, the Bosleys purchased the house from Clifton and Wilma Curry
approximately 6 weeks before this incident. The record indicates that before the Currys
sold the property to the Bosleys, the Bosleys had the property inspected.
The
inspection report indicated that the deck contained rotted, degraded, and insect
damaged wood that was dangerous. As a result of the inspection report, the Curry’s
offered to give the Bosleys an allowance to repair the deck. The Bosleys declined and
instead insisted that the Curry’s repair the deck prior to the closing of the home sale.
Pursuant to the contract addendum signed by all the parties, the Currys would have the
deck repaired according to an itemized list. Those items at issue here included: replace
the bad deck posts and re-secure the deck to prevent it from pulling away from the
house; replace the damaged seal plate beneath the sliding glass; and, properly install
flashing to the seal plate. (Doc. 46, Bradd Bosley depo. p. 40, L 10 to p. 41, L 9).
To complete the work, the Currys hired Defendant Burton, who was
recommended by their landscaper. (Doc. 46, Bradd Bosley depo. p. 45, L 19-20). After
Burton completed the work, Mr. Bosley inspected the deck with his realtor. Based upon
this inspection, the Bosleys had no knowledge of any defect in the deck. (Doc. 47,
Bradd Bosley depo. p. 70, L 19 to p. 71, L 3). The deck repairs were completed in the
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first week of June 2012. (Doc. 44, Clifton Curry depo. p. 59, L 23-25). The deck
collapsed on August 11, 2012.
Plaintiff filed suit on August 6, 2014.
Thereafter, Plaintiff filed an amended
complaint on March 3, 2015. (Doc. 17). The amended complaint asserts one claim of
negligence against each of the Defendants.1 In their answer to Plaintiff’s amended
complaint, the Currys asserted a cross-claim against the Bosleys asserting that if they
are liable to the Plaintiff, as described in her complaint, they have the right of action for
contribution and/or indemnity against defendants Bradd Bosley, Stephanie Balle-Bosley,
Delbert Burton and John Doe Contracting Company. (Doc. 20).
The Bosleys also asserted a cross-claim against the Currys contending, inter
alia, that they negligently breached their duties by failing to maintain and properly repair
the deck and failing to warn of any dangerous conditions associated with the deck.
(Doc. 21). The Bosleys’ cross-claim also demands judgment against the Currys and CoDefendants John Doe Contracting Company and Delbert Burton for all sums which they
have or will have to pay for the benefit of plaintiff, as well as for attorney fees and for
costs incurred herein.
In April 2016, the Currys then moved for summary judgment asserting that they
are entitled to judgment as a matter of law on the claims asserted against them by
Plaintiff and the Bosleys. (Doc.42). The Currys contend that Plaintiff cannot recover
against them as a matter of law because they owed no duty to her. They also maintain
that the Bosleys’ cross-claim fails as a matter of law because they accepted the repairs
made by them and assumed liability as owners of the property.
1
Defendant John Doe Contracting Company has not been identified and Defendant Delbert Burton could
not be located for service.
3
Thereafter, the Bosleys also filed a motion for summary judgment, asserting that
they are entitled to judgment as a matter of law on Plaintiff’s claims against them
because they were unaware of any existing defects or dangers relating to the deck.
(Doc. 51). Plaintiff also seeks summary judgment against the Bosleys on the issue of
liability and on the issue of comparative negligence as asserted by the Currys. (Doc.
52).
II.
Analysis and Decision
A. Standard of Review
In a motion for summary judgment, “a court must view the facts and any
inferences that can be drawn from those facts ... in the light most favorable to the
nonmoving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th
Cir.2007) (internal quotation marks omitted). “Summary judgment is only appropriate ‘if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.’ “ Id. (quoting
Fed.R.Civ.P. 56(c)) (internal quotation marks omitted). “Weighing of the evidence or
making credibility determinations are prohibited at summary judgment-rather, all facts
must be viewed in the light most favorable to the non-moving party.” Id.
The requirement that facts be construed in the light most favorable to the
Plaintiff, however, does not mean that the court must find a factual dispute where record
evidence contradicts Plaintiff's wholly unsupported allegations. After a moving party has
carried its initial burden of showing that no genuine issues of material fact remain in
dispute, the burden shifts to the non-moving party to present specific facts
4
demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The ‘mere
possibility’ of a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577,
582 (6th Cir.1992) (citing Gregg v. Allen–Bradley Co., 801 F.2d 859, 863 (6th
Cir.1986)). In order to defeat the motion for summary judgment, the non-moving party
must present probative evidence that supports its complaint. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving
party's evidence “is to be believed, and all justifiable inferences are to be drawn in his
favor.” Id. at 255 (emphasis added). The court determines whether the evidence
requires submission to a jury or whether one party must prevail as a matter of law
because the issue is so one-sided. Id. at 251–52.
Although reasonable inferences must be drawn in favor of the opposing party,
see Matsushita, 475 U.S. at 587, inferences are not to be drawn out of thin air. To
demonstrate a genuine issue, the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts .... Where the record taken as
a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial.’ ”Matsushita, 475 U.S. at 587 (citation omitted).
B. Applicable Law2
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
2
Because this is a diversity action arising out of events occurring in Ohio, the Court applies the
substantive law of Ohio in deciding this matter.
5
(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.
The duty element of negligence is a question of law for the court to determine. Id.
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. Ohio courts have found that the existence of a duty depends
upon the foreseeability of harm: if a reasonably prudent person would have anticipated
that an injury was likely to result from a particular act, the court could find that the duty
element of negligence is satisfied. In addition, we have also stated that the duty element
of negligence may be established by common law, by legislative enactment, or by the
particular circumstances of a given case.’” State Farm Fire & Cas. Co. v. Century 21
Arrow Realty, Cuyahoga App. Nos. 87081, 87108, 2006-Ohio-3967, 2006 WL 2171568,
¶ 29,
Furthermore, “the question as to whether the condition of the premises
complained of is an unreasonably dangerous condition is usually a question of fact for
determination by the jury or other trier of the facts. Jones v. H. & T. Enterprises, 88 Ohio
App. 3d 384, 389, 623 N.E.2d 1329, 1333 (1993).
6
In addressing the cross-claims, the Ohio Supreme Court has affirmed “‘there
[arises] a duty recognized in every contract that each party will fulfill his obligations with
care, skill, and faithfulness.’ ” Lone Star Equities, Inc. v. Dimitrouleas, 2015-Ohio- 2294,
¶ 77, 34 N.E.3d 936, 952 (quoting Thompson v. Germantown Cemetery, 188 Ohio
App.3d 132, 2010-Ohio-1920, 934 N.E.2d 956, ¶ 10 (2d Dist.), (quoting Wagenheim v.
Alexander Grant & Co., 19 Ohio App.3d 7, 14, 482 N.E.2d 955 (10th Dist.1983))).
C. The Bosleys
It is undisputed that Plaintiff was a social guest of the Bosleys at the time she
was injured by the deck collapse. Notably, a host who invites a social guest to her
premises owes the guest a duty to exercise ordinary care not to cause injury to her by
any act of the host or by any activities carried on by the host while the guest is on the
premises, and to warn the guest of any condition of the premises which is known to the
host and which one of ordinary prudence and foresight in the position of the host should
reasonably consider dangerous, if the host has reason to believe that the guest does
not know and will not discover such dangerous condition. Brennan v. Schappacher,
12th Dist. Butler No. CA2008–09–231, 2009–Ohio–927, ¶ 11.
However, a host is not an insurer of invitees' safety. Lang v. Holly Hill Motel, Inc.,
122 Ohio St.3d 120, 909 N.E.2d 120, 2009–Ohio–2495, ¶ 11. Rather, a host owes
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.” Armstrong v.
Best Buy Co., Inc., 99 Ohio St.3d 79, 788 N.E.2d 1088, 2003–Ohio–2573, ¶ 5. The
host’s duty to invitees also includes the obligation to inspect the premises to discover
7
possible dangerous conditions. Perry v. Eastgreen Realty Co., 53 Ohio St.2d 51, 52,
372 N.E.2d 335 (1978).
Should a host fail to conduct a reasonable inspection of the premises, the host
will be charged with constructive knowledge of any latent defect which the host would
have discovered had he or she conducted the reasonable inspection. Beck v. Camden
Place at Tuttle Crossing, 10th Dist. No. 02AP–1370, 2004–Ohio–2989, ¶ 30. Once
imputed with constructive knowledge of the latent defect, the host may face liability for
failing to warn the invitee of the latent defect or otherwise make the premises
reasonably safe. Ferguson v. Eastwood Mall, Inc., 11th Dist. No. 97 CV 134 (Dec. 4,
1998).
Here, as a social host and property owner, the Bosleys possessed a duty to warn
Plaintiff of any dangerous conditions on the property, known to them, but unknown to
Plaintiff. Id.
If the Bosleys failed to reasonably inspect the deck repairs, they could be
charged which constructive knowledge of the deck’s defects and thus, have breached a
duty to Plaintiff. Whether the Bosleys performed a reasonable inspection of the deck
repairs is a question of fact that must be resolved by a jury and not the Court on
summary judgment. Accordingly, the parties’ cross motions for summary judgment are
denied in this regard.
D. The Currys
The Currys contend that Plaintiff cannot recover against them because they
owed no duty to her. As detailed above, when the deck collapsed, the Currys did not
own or control the property.
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Plaintiff, however, argues that the Currys assumed a duty to her when they
accepted the responsibility to repair the deck. In this regard, the Ohio Supreme Court
has found that ‘[t]here [arises] a duty recognized in every contract that each party will
fulfill his obligations with care, skill, and faithfulness.’” Lone Star Equities, Inc. v.
Dimitrouleas, 2015-Ohio- 2294, ¶ 77, 34 N.E.3d 936, 952 (quoting Thompson v.
Germantown Cemetery, 188 Ohio App.3d 132, 2010-Ohio-1920, 934 N.E.2d 956, ¶ 10
(2d Dist.), (quoting Wagenheim v. Alexander Grant & Co., 19 Ohio App.3d 7, 14, 482
N.E.2d 955 (10th Dist.1983)).
Here, the undersigned agrees that, prior to selling the house, the Currys owed a
duty to the Bosleys to properly fulfill their obligations under the contract as outlined in
the addendum to repair the deck. See Lone Star, 34 N.E.3d at 952. As noted by the
Currys, it is well established in Ohio that “if a plaintiff brings an action sounding in tort
and bases his claim upon a theory of duty owned by a defendant as a result of
contractual relations, he or she must be a party or privity to the contract in order to
prevail.” Vistein v. Keeney, 71 Ohio App.3d 92, 106, 593 N.E.2d 52 (1990).
Furthermore, “if the plaintiff fails to establish that he or she is a party to a contract or in
privity with a party, the plaintiff fails to establish a duty owed the plaintiff by the
defendant. Gentile v. Ritas, 160 Ohio app. 3d 765, 793, 828 N.E.2d 1021, 1027 (Ohio
Ct. App., Frankin County 2005). Here, Plaintiff claims the Currys owed her a duty
based upon the contract between the Curry’s and the Bosleys. However, Plaintiff was
not a party to such contract.
The undersigned also recognizes that the Ohio’s Eighth District Court of Appeals
ruled that a former property owner could be held liable in negligence for the collapse of
9
a staircase that occurred after he sold the property. VanAtta v. Akers, 8th Dist. No.
82361, 2003 Ohio 6615, ¶ 43. In VanAtta, however, the former property owner
personally constructed the staircase that subsequently collapsed. VanAtta at ¶ 12. The
Eighth District Court of Appeals ruled that, because the former owner had taken on an
extensive building project on his own, he put himself in the position of a contractor. Id. at
¶ 41.
Yet, the court was careful to specify that it did not intend for all improvement or
repair projects undertaken by homeowners to subject them to liability:
In holding this, we do not intend all projects undertaken by a homeowner
to subject them to liability as contractors. However, when a project is of a
type normally regulated by building codes and requiring a permit, the
homeowner subjects himself to liability as a contractor.
VanAtta v. Akers, 2003-Ohio-6615, ¶ 41.
Here, the Currys did not perform the deck repair; they hired Defendant Delbert
Burton. As such, the Currys cannot be held liable as a contractor. Furthermore, the
Currys did not owe a duty to Plaintiff under a theory of negligence. Accordingly, the
Currys are entitled to judgment as a matter of law in this regard.
However, this matter shall proceed on the Bosleys counterclaim against the
Currys for indemnification, contribution and or reimbursement (in the event the Bosleys
are held liable on Plaintiff claims). (See Doc. 21) As detailed above, the Currys owed a
duty to the Bosleys to properly fulfill their obligations under the contract as outlined in
the addendum to repair the deck. See Lone Star, 34 N.E.3d at 952. Questions of fact
remain surrounding this issue. As such, the Currys’ motion for summary judgment is not
well-taken on the Bosleys’ counterclaim.
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III.
Conclusion
In light of the foregoing, it is herein ORDERED that:
1. The Currys’ motion for summary judgment (Doc. 42) is GRANTED in PART
as to Plaintiff’s claims asserted against them. The motion is DENIED with
respect to the claims asserted by the Bosleys against the Currys in their
crossclaim as more fully detailed above. Such claims shall proceed to trial.
2. The Bosleys’ motion for summary judgment (Doc. 51) is DENIED;
3. Plaintiff’s motion for summary judgment (Doc. 52) is DENIED3; and
4. This matter shall proceed to trial by jury as scheduled.
IT IS SO ORDERED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
3
Because the Currys did not owe a duty to Plaintiff, any claims of comparative negligence asserted by
the Currys are moot.
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