Tucker v. PopeTucker v. Pope
Rendered on the 12th day of March , 2010.
CRAIG A. DYNES, Atty. Reg. No. 0000724 and RYAN C. DYNES, Atty. Reg. No. 0081278, 2840 Alt. SR 49 North, Suite B, P. O. Box 250, Arcanum, Ohio 45304
DOUGLAS A. HESS, Atty. Reg. No. 0029238, 3946 Kettering Blvd., Dayton, Ohio 45439
Attorneys for Plaintiffs-Appellants
JEFFREY A. HAZLETT, Atty. Reg. No. 0024668, 130 W. Second Street, Suite 1850, Dayton, Ohio 45402
Attorney for Defendants-Appellees
I
{¶ 2} On September 16, 2006, Barbara Bixler (“Bixler“) and Tucker worked for the QRA Agency, which provided social services to individuals with disabilities and mental illnesses. It was Tucker’s first day working for QRA, and she was receiving instruction from Bixler as they made calls on consumers.
{¶ 3} In the afternoon of September 16, Bixler and Tucker visited the home of David and Ellen Pope to talk about providing services to Ellen. The Popes suggested that they conduct their business on the front porch of the home, because it was a beautiful day. During these discussions, the Popes sat on the porch furniture, and Bixler and Tucker stood or leaned or sat on one of the porch railings. At a point when both Bixler and Tucker were leaning or sitting on the same railing, the railing detached, and both women fell several feet onto a concrete driveway, sustaining injuries.
{¶ 4} Tucker filed a complaint against the Popes in June 2008;
{¶ 5} After summary judgment was granted, Bixler filed a motion for reconsideration, which the trial court overruled. She also filed a motion for relief from judgment; the trial court had not yet ruled on this motion when Bixler filed her notice of appeal.
{¶ 6} Tucker and Bixler raise three assignments of error on appeal.
II
{¶ 7} The first two assignments of error relate to the trial court’s decision to grant summary judgment, and we will address them together.
{¶ 8} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN GENUINE ISSUES AS TO MATERIAL FACT EXIST.”
{¶ 10} Bixler and Tucker contend that the trial court erred in granting summary judgment because there were genuine issues of material fact relating to how much furniture was on the porch, whether the Popes had “invited” them to sit on the railing, and whether the porch had been constructed in a safe manner. They also argue that the Popes had a duty to inspect for and discover dangerous conditions dating to the construction of the home, even if the construction pre-dated their ownership of the home.
{¶ 11}
{¶ 12} The status of the person who enters upon the land of another defines the scope of legal duty that the owner owes the entrant. Gladon v. Greater Cleveland Reg. Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137. The parties agree that Bixler and Tucker were business invitees. A business invitee “is one who enters another’s land by invitation for a purpose that is beneficial to the owner.” Id. With respect to business invitees, an owner’s duty is to keep the premises in reasonably safe condition and warn of dangers that are known to the owner. James v. Cincinnati, Hamilton App. No. C-070367, 2008-Ohio-2708, at ¶24, citing Eicher v. U.S. Steel Corp. (1987), 32 Ohio St.3d 248. Liability only attaches when an owner has “superior knowledge of the particular danger which caused the injury” as an “invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate.” Uhl v. Thomas, Butler App. No. CA2008-06-131, at ¶13, citing LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 210.
{¶ 13} Bixler and Tucker contend that there was a genuine issue of material fact as to whether the railing had been “constructed in a manner so as not to be dangerous.” They argue that the Popes had a duty to
{¶ 14} “The [owner or] occupier is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection. But the obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The [owner or] occupier must not only use care not to injure the visitor by negligent activities, and warn him of latent dangers of which the occupier knows, but he must also inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use. The obligation extends to the original construction of the premises, where it results in a dangerous condition.” Id, citing Prosser on Torts (4 Ed.), 392-93 (1971).
{¶ 15} Although Perry discussed an owner’s duty to maintain premises in a reasonably safe condition, to warn invitees of unreasonably dangerous latent conditions of which the owner had or should have had knowledge, and to inspect the premises to discover possible unsafe conditions, it did not impose strict liability on the owner for all injuries on
{¶ 16} To some extent, Tucker’s statements in her deposition about the condition of the railing corroborated Pope’s testimony that no defect had been apparent. Tucker testified that there had not been “any indication that [the railing] was going to give way” or that “the railing was anything but solid” – such as sagging or a cracking sound – before the railing fell to the ground. Bixler could not recall any details surrounding the accident.
{¶ 17} Bixler and Tucker offered expert testimony on the safety of the railing via the deposition of Larry Dehus. Dehus had some expertise in forensics, vehicle accident reconstruction, and fire inspections. Dehus
{¶ 18} Based on Pope’s uncontroverted testimony that he had had the house inspected
{¶ 20} Bixler and Tucker also contend that summary judgment was inappropriate because there was a genuine issue of material fact regarding how much furniture was on the porch at the time of the accident. Bixler and Tucker argue that since there was not enough furniture for them to sit on, they were required to stand and, given the length of the discussion, that it was foreseeable that they would sit or lean on the railing. In his deposition, David Pope testified that there had been enough seating for four people – a loveseat and two chairs. On the other hand, Bixler and Tucker recalled that there were only two seats on the porch, and the Popes sat in them. This factual discrepancy did not preclude the entry of summary judgment. Even if we assume for the sake of argument that there were only two seats on the porch and that the Popes sat in these seats, the alleged foreseeability of leaning on the railing is only conceivably relevant if there were a genuine issue regarding the Popes’ knowledge of any defect, which we have held above there is not.
{¶ 21} The first and second assignments of error are overruled.
III
{¶ 22} Bixler’s third assignment of error states:2
{¶ 23} “THE TRIAL COURT ERRED IN NOT GRANTING APPELLANTS BARBARA E. BIXLER AND JERRY L. BIXLER’S MOTION FOR RECONSIDERATION AND/OR MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE.”
{¶ 24} Bixler contends that the trial court erred in overruling her Motion for Reconsideration and to Allow the Filing of the Settlement Report. She claims that this document would have made the court more “fully aware of the mental deficiencies of David Pope and Ellen Pope,” which affected their ability to inspect the porch railing. She also claims that the trial court erred in overruling her Motion for Relief from Judgment.
{¶ 25} A decision granting a motion for summary judgment on all of a plaintiff’s claims is a final appealable order. See
{¶ 26} Bixler filed her Motion for Relief from Judgment on July 21, 2009, and she filed her notice of appeal on July 27, 2009, before the trial court ruled on the motion. According to the Popes’ brief, the trial court denied the motion on August 12, 2009, citing its lack of jurisdiction. Bixler’s notice of appeal did not encompass that judgment.
{¶ 27}
{¶ 28} We disagree with this interpretation of Howard. In that case, the Supreme Court stated: “[W]e have expressly held that an appeal divests trial courts of jurisdiction to consider Civ.R. 60(B) motions for relief from judgment. *** Jurisdiction may be conferred on the trial court to consider a Civ.R. 60(B) motion while an appeal is pending only through an order by the reviewing court remanding the matter for consideration of the Civ.R. 60(B) motion.” Id. at 147 (internal citations omitted). We issued no such order in this case. Therefore, we find that the trial court properly concluded that it lacked jurisdiction to consider Bixler’s
{¶ 29} The third assignment of error is overruled.
IV
{¶ 30} The judgment of the trial court will be affirmed.
. . . . . . . . . .
BROGAN, J. and GRADY, J., concur.
Copies mailed to:
Craig A. Dynes
Ryan C. Dynes
Douglas A. Hess
Hon. Jeffrey M. Welbaum