Kell v. Russo
2012 Ohio 1286
Ohio Ct. App.2012Background
- Kell, as Administrator of Ryan Kell’s estate, sues Russo Concrete for wrongful death.
- Ryan Kell walked home on a foggy, freezing night after leaving a bar; BAC was 0.19.
- The Russo property contained a washout pit; barricades and signs were present but no fence.
- Ryan Kell’s body was found in the washout pit the morning after he disappeared.
- The jury found in favor of Russo Concrete; Kell’s claims were rejected.
- The trial court issued jury instructions that Kell challenges on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Instruction error | Kell argues the court gave improper open/obvious and stepping-into-darkness instructions. | Russo contends instructions were proper and agreed upon; no objection was raised. | First assignment overruled; no reversible error; waiver/objection defenses apply. |
| Manifest weight | Kell asserts the verdict was against the weight of the evidence. | Russo asserts evidence supported open-and-obvious hazard and no duty breached. | Second assignment overruled; verdict supported by competent evidence; affirmed. |
Key Cases Cited
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (Ohio Supreme Court 1997) (plain error in civil cases rarely applies; waiver matters)
- Galmish v. Cicchini, 90 Ohio St.3d 22 (Ohio Supreme Court 2000) (instruction error a waiver issue absent objection)
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (Ohio Supreme Court 2003) (elements of negligence; duty to trespassers context)
- Jeffers v. Olexo, 43 Ohio St.3d 140 (Ohio Supreme Court 1989) (trespasser duties and standard of care)
- Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312 (Ohio Supreme Court 1996) (open and obvious danger limits duty)
- Bennett v. Stanley, 92 Ohio St.3d 35 (Ohio Supreme Court 2001) (trespasser duty and standard of care clarification)