Kern v. Buehrer
2012 Ohio 4057
Ohio Ct. App.2012Background
- Kern sued the Buehrers for fraud, alleging failure to disclose latent water leakage in the finished basement to induce purchase.
- The Buehrers sought summary judgment, arguing Kern bought the house “as is” and had been alerted to possible defects by a presale home inspection.
- The trial court granted summary judgment, finding the home inspection placed Kern on notice of defects and there was no triable issue.
- Ohio law recognizes caveat emptor but requires fraud-based exceptions when defects are latent and not readily observable, and as-is clauses do not bar fraud claims.
- Kern relied on the Buehrers’ disclosure denying water intrusion despite the home inspector’s ambiguous warnings and findings.
- On appeal, the court reversed the summary-judgment ruling, holding there were factual questions about misrepresentation and justifiable reliance that must be resolved by a trier of fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fraud doctrine overrides caveat emptor and bars summary judgment | Kern argues misrepresentation/omission of latent defects defeated presale defenses | Buehrers contend no fraud because disclosure was false; home inspection warned of possible defects | No summary judgment; material facts on misrepresentation and reliance remain |
| Whether Kern's reliance on the disclosure form was justifiable given the home inspector's warnings | Kern relied in substantial part on the disclosure denying water intrusion | Reliance diminished by inspector's warnings and ambiguous findings | Issue of justifiable reliance for the jury; not appropriate for summary judgment |
| Whether an as-is clause bars recovery for fraudulent concealment | As-is clause does not bar fraud when seller knew of latent defects | As-is clause should preclude claims of latent defect misrepresentation | As-is clause does not bar fraud claim; summary judgment improper |
Key Cases Cited
- Layman v. Binns, 35 Ohio St.3d 176 (1988) (caveat emptor; latent defects require disclosure duties)
- Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986) (elements of fraudulent misrepresentation)
- Tipton v. Nuzum, 84 Ohio App.3d 33, 616 N.E.2d 265 (9th Dist.1992) (as-is clause; limitations on warranties in home purchases)
- Brewer v. Brothers, 82 Ohio App.3d 148, 611 N.E.2d 492 (12th Dist.1992) (as-is clause not a bar to fraud/ concealment claims)