LEONARD L. WESLEY, et al. v. JAMES WALRAVEN, et al.
Case No. 12CA18
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
DATE JOURNALIZED: 2-5-13
[Cite as Wesley v. Walraven, 2013-Ohio-473.]
ABELE, J.
DECISION AND JUDGMENT ENTRY
COUNSEL FOR APPELLANTS: James H. Banks, P.O. Box 40, Dublin, Ohio 43017
COUNSEL FOR APPELLEES: John E. Triplett, Jr., and Daniel P. Corcoran, THEISEN BROCK, 424 Second Street, Marietta, Ohio 45750
CIVIL CASE FROM COMMON PLEAS COURT
{1} This is an appeal from a Washington County Common Pleas Court summary judgment in favor of Todd and Joanna Knapp, defendants below and appellees herein. The trial court determined that appellees are not liable for the death of LaMarr Wilder, who attended a party at appellees’ home that another couple, James and Shenandoah Walraven, hosted.
{2} Leonard L. Wesley, Individually and as Administrator of the Estate of Lamarr R. Wilder, plaintiff below and appellant herein, assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN CONSIDERING THE AFFIDAVIT OF DEFENDANT-APPELLEE JOANNA KNAPP IN SUPPORT OF DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF-APPELLANT‘S MOTION TO COMPEL DISCOVERY AND TO STRIKE SAID AFFIDAVIT.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN REFUSING TO CONSIDER THE AFFIDAVIT OF DETECTIVE HAEGLE AND THE DOCUMENTS SUBMITTED BY PLAINTIFF-APPELLANT IN OPPOSITION TO DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY JUDGMENT.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF-APPELLANT‘S CLAIMS, SUCH THAT THE JUDGMENT BELOW MUST BE REVERSED.”
{3} This case arises out of a very unfortunate and sad stabbing incident that occurred at appellees’ home where the Walravens hosted a combined high-school graduation and birthday party for their daughter while appellees were out of town. Appellees agreed to the arrangement, but informed the Walravens of certain restrictions for the party. Appellees advised the Walravens that no one under the age of twenty-one would be permitted to consume alcohol and that no one under the age of eighteen could attend the party. Appellees did not purchase any alcohol to be consumed at the party.
{4} C.L. attended the party but did not drink any alcohol.1 As C.L. and two of his friends sat in a car, three unknown males approached and began to beat on the roof of the car and
{5} Once outside the car, C.L. and his friends recognized the male antagonists as Scott Walraven‘s son, T.C., and LaMarr Wilder. As C.L.‘s friend was tried to explain that he had no intention to fight, T.C. punched C.L.‘s friend in the back of the head. Wilder then punched C.L. in the temple and knocked him to the ground. The Walravens’ son punched C.L.‘s second friend in the face, dazing him and possibly rendering him unconscious.
{6} Once C.L. was on the ground, he rolled to his stomach and Wilder began to pummel his head and neck. Wilder was 5‘10“, nearly 240 pounds, a football player, and 19 years old. C.L. was a few inches taller and 10 pounds heavier than Wilder, but C.L. had never been in a fight and was 17. C.L. testified that he tried to get up, but was able to get only onto his elbows. C.L.‘s vision began to darken as Wilder continued to pummel his head, so C.L. reached into his pocket for his pocket knife. In addition to his waning consciousness, C.L. was unsure when Wilder would stop hitting him because Wilder had been drinking. C.L. also thought that more than one person was holding him down or punching him because he could not get up.
{7} After C.L. unfolded his knife, he thrust it in Wilder‘s general direction. Wilder exclaimed that C.L. was “trying to poke him,” but continued to punch C.L. in the head. After several thrusts of the knife, Wilder ceased the beating. C.L. then got up and ran to his truck.
{8} As C.L. attempted to leave, Scott Walraven and his son assaulted C.L. in his truck. Scott Walraven grabbed C.L.‘s shirt and punched him in the face several times. C.L. tried to kick him away, to no avail. Finally, Scott Walraven released C.L., who immediately started his truck
{9} In the aftermath, Wilder made his way to the garage and collapsed. Several of C.L.‘s swipes with the knife had connected with Wilder‘s legs and one cut Wilder‘s femoral artery, which proved fatal.
{10} On September 23, 2010, appellant filed a wrongful death complaint against the Walravens, appellees, and C.L. The court subsequently entered default judgments against C.L. and the Walravens.
{11} On December 2, 2011, appellees requested summary judgment and asserted that no genuine issues of material fact remained concerning their liability for the decedent‘s death.
{12} On January 6, 2012, appellant filed a motion to compel appellees to provide discovery and a motion to strike Mrs. Knapp‘s affidavit. On that same date, appellant filed his opposition memorandum and attached investigative reports taken during the investigation into Wilder‘s death and a search warrant affidavit.
{13} Subsequently, appellees filed a motion to strike the exhibits attached to appellant‘s memorandum.
{14} On February 6, 2012, the trial court overruled appellant‘s motion to compel, partially overruled his motion to strike Mrs. Knapp‘s affidavit, granted appellees’ motion to strike the documents attached to appellant‘s opposition memorandum, and granted appellees summary judgment. On March 21, 2012, the court entered a final judgment entry and granted appellees summary judgment. This appeal followed.
{15} Appellant‘s three assignments of error challenge the propriety of the trial court‘s summary judgment decision, thus, for ease of analysis we have combined them for review.
{17} In his second assignment of error, appellant argues that the trial court erred by striking the documents he submitted in opposition to appellees’ summary judgment motion.
{18} In his third assignment of error, appellant contends that the trial court improperly entered summary judgment in appellees’ favor. Appellant asserts that genuine issues of material fact remain as to whether appellees are liable for the decedent‘s death.
A
SUMMARY JUDGMENT STANDARD
{19} Appellate courts conduct a de novo review of trial court summary judgment decisions. E.g., Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶6; Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court‘s decision. E.g., Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411–12, 599 N.E.2d 786 (1991). To determine whether a trial court properly granted a summary judgment motion, an appellate court must review the
* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party‘s favor.
{20} Thus, pursuant to
B
SUMMARY JUDGMENT EVIDENCE
{21}
{22} If a party submits evidence that does not fall within
1
Affidavits
{23} Appellant asserts that the trial court erred when it refused to strike Mrs. Knapp‘s affidavit. Appellant argues that the court should have stricken Knapp‘s affidavit because it (1) is not based upon personal knowledge, (2) contradicts her deposition testimony and interrogatory
{24}
{25} “Personal knowledge” is “[k]nowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said.” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶26, quoting Black‘s Law Dictionary (7th Ed.Rev. 1999) 875. It is “knowledge of factual truth which does not depend on outside information or hearsay.” Firelands Radiology, 106 Ohio App.3d at 335. E.g., Curren v. Greenfield, 4th Dist. No. 11CA30, 2012-Ohio-4688, ¶9.
{26} Additionally, a moving party generally may not submit an affidavit that contradicts that party‘s prior deposition testimony in order to defeat or to obtain a summary judgment. Turner v. Turner, 67 Ohio St.3d 337, 617 N.E.2d 1123 (1993), paragraph one of the syllabus (“When a litigant‘s affidavit in support of his or her motion for summary judgment is inconsistent with his or her earlier deposition testimony, summary judgment in that party‘s favor is improper because there exists a question of credibility which can be resolved only by the trier of fact.“). “In other words, a summary judgment movant may not benefit from changing a deposition with a later sworn statement.” Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶22.
{28} We further disagree with appellant that the trial court should have refused to consider Mrs. Knapp‘s affidavit because, according to appellant, it contradicts her prior deposition testimony. While we agree with the principle that in order to obtain a summary judgment, a moving party cannot submit an affidavit that contradicts that party‘s prior deposition testimony, in the case sub judice appellant failed to demonstrate that any statement in the affidavit factually contradicts her deposition. Appellant asserts that Knapp‘s affidavit statement that she prohibited alcohol consumption conflicts with her deposition testimony that she was not at the party. He claims that because Knapp was not present at the party, she could not have prohibited alcohol consumption. However, Knapp‘s two statements do not rise to the level of a contradiction. Mrs. Knapp admits that she was not present at the party. She further stated, however, that she prohibited alcohol consumption. The facts reveal that she did not prohibit alcohol consumption by maintaining a physical presence at the property and personally informing the attendees that there would be no alcohol consumption, but, instead, prohibited alcohol consumption by advising the
{29} Accordingly, we disagree with appellant that the trial court erred by denying his motion to strike Mrs. Knapp‘s affidavit.
2
Documentary Evidence
{30} Appellant next argues that the trial court‘s decision to grant appellees’ motion to strike the documents that he submitted in opposition to appellees’ summary judgment motion constitutes reversible error.
{31} Appellant attached to his opposition memorandum unauthenticated documents from the police investigation into the decedent‘s death, including two “narrative supplements” and a search warrant affidavit. However, the proper method to introduce evidentiary materials that
{33} In Stevenson v. Prettyman, 193 Ohio App.3d 234, 2011-Ohio-718, 951 N.E.2d 794 (8th Dist.), ¶¶27-28, the court held that police records are not listed as
“In Butler v. Young, (Jan. 14, 1999), 8th Dist. No. 73549, 1999 WL 13986, this court explained: ‘Police reports and private investigator‘s statements are not materials authorized by
Civ.R. 56(C) for consideration on a motion for summary judgment. Moreover, plaintiffs did not offer evidence to authenticate these documents or to certify that they were true copies of what they were purported to be. Such authentication is a condition precedent to admissibility.Evid.R. 901 . Although the police report is a public record, the report was not self-authenticating because the document was not certified as a true copy of an official public record.Evid.R. 902 ;Civ.R. 44 . Accordingly, the trial court properly refused to consider these materials. Id.’We further noted in Butler that ‘even if plaintiffs had properly authenticated the police report, its contents were hearsay and were not admissible under
Evid.R. 803(8) as a public record and report. Petti v. Perna, (1993), 86 Ohio App.3d 508
[621 N.E.2d 580]. The report was recorded by an officer who responded to the scene after the collision, was not based on his own personal observations, and merely collected statements by other witnesses. Id.‘”
{34} Similarly, in the case at bar, appellant did not authenticate the police records that appellant attached to his opposition memorandum. Moreover, the records contain the statements of various witnesses and report activities based upon what others saw, not upon what the officers personally witnessed or observed. Nelson v. Ford Motor Co., 145 Ohio App.3d 58, 68, 761 N.E.2d 1099, 1107 (11th Dist. 2001) (holding that “[s]tatements made to a police officer by a person involved in an automobile accident and incorporated into the officer‘s report are inadmissible hearsay“). Therefore, we do not believe that the trial court abused its discretion when it declined to consider the documents appellant attached to his opposition memorandum.
{35} Consequently, we reject appellant‘s argument that the trial court erred by granting appellees’ motion to strike the documents he submitted in opposition to appellees’ summary judgment motion.
C
MOTION TO COMPEL DISCOVERY
{36} Within his first assignment of error, appellant further argues that the trial court erred by denying his motion to compel discovery and to stay the proceedings until appellees provided additional discovery.
{37} We first observe that appellant cited no legal authority to support his argument that the trial court erred by denying his motion to compel. Under
“““If an argument exists that can support [an] assignment of error, it is not this court‘s duty to root it out.” Thomas v. Harmon, 4th Dist. No. 08CA17, 2009-Ohio-3299, ¶14, quoting State v. Carman, 8th Dist. No. 90512, 2008-Ohio-4368, ¶31. “‘It is not the function of this court to construct a foundation for [an appellant‘s] claims; failure to comply with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal.‘” (Alteration sic.) Catanzarite v. Boswell, 9th Dist. No. 24184, 2009-Ohio-1211, ¶16, quoting Kremer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th Dist. 1996). Therefore, ‘[w]e may disregard any assignment of error that fails to present any citations to case law or statutes in support of its assertions.’ Frye v. Holzer Clinic, Inc., 4th Dist. No. 07CA4, 2008–Ohio-2194, ¶12. Accord Coleman v. Davis, 4th Dist. No. 10CA5, 2011–Ohio–506, ¶13; Oldacre v. Oldacre, 4th Dist. No. 08CA3073, 2010–Ohio–1651, ¶ 35 (Kline, J., with one judge concurring in judgment only); see
App.R. 12(A)(2) .”
{38} In the case at bar, the failure to comply with
D
NO GENUINE ISSUES OF MATERIAL FACT REMAIN
{39} In his third assignment of error, appellant asserts that the trial court erred by entering summary judgment in appellees’ favor. Appellant contends that genuine issues of material fact remain regarding whether appellees are liable for the decedent‘s death as social hosts under
{40} 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 217 (1998); Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989). If a defendant points to evidence to illustrate that
1
Social Host Liability
{41}
(B) No person who is the owner or occupant of any public or private place shall knowingly allow any underage person to remain in or on the place while possessing or consuming beer or intoxicating liquor, unless the intoxicating liquor or beer is given to the person possessing or consuming it by that person‘s parent, spouse who is not an underage person, or legal guardian and the parent, spouse who is not an underage person, or legal guardian is present at the time of the person‘s possession or consumption of the beer or intoxicating liquor.
An owner of a public or private place is not liable for acts or omissions in violation of this division that are committed by a lessee of that place, unless the owner authorizes or acquiesces in the lessee‘s acts or omissions.
This statute creates a duty on the part of a social host to refrain from serving alcohol or intoxicating liquors to an underage person. Mitseff v. Wheeler, 38 Ohio St.3d 112, 114, 526 N.E.2d 798 (1988). Violating the statute constitutes negligence per se and thus establishes the duty and breach elements of a negligence action. Huston v. Konieczny, 52 Ohio St.3d 214, 218, 556 N.E.2d 505 (1990).
{42} In the case sub judice, we do not agree with appellant that genuine issues of material fact remain as to whether appellees possessed actual knowledge that underage alcohol consumption or possession was occurring at their home. Appellees stated that they did not know underage alcohol consumption or possession occurred at their home and that they specifically advised the Walravens to permit no underage alcohol consumption at the party. Mrs. Knapp stated that she informed the Walravens that they could host their daughter‘s graduation party, but only if the Walravens complied with certain restrictions. Knapp explained that she told the Walravens that no one under the age of twenty-one could consume alcohol and that no one under the age of eighteen could be present. Knapp stated that the Walravens assured her that no one under the age of eighteen would attend the party. None of the foregoing facts shows that appellees possessed actual knowledge that underage alcohol consumption or possession occurred at their home. Appellant failed to respond with proper
{43} Moreover, we observe that appellees’ conduct in loaning the Walravens their home for the party is similar to an owner leasing premises.
{44} The trial court, therefore, properly entered summary judgment in appellees’ favor under the social host theory of liability.
2
Negligent Entrustment
{45} Appellant further seeks to impose liability upon appellees using a negligent entrustment theory. Appellant alleges that appellees negligently entrusted their home to the Walravens.
““[T]he Restatement of Torts provides that it is negligence to permit another person ‘to use a thing * * * which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.’ Restatement of the Law 2d, Torts, Section 308 (1965).”
Rice v. Kanoza, 1st Dist. No. C-110595, 2012-Ohio-2581 ¶12.
“The theory of negligent entrustment as a basis for liability arises from the principle that ‘[a]nyone with normal experience is required to have knowledge of the traits and habits of * * * other human beings, and to govern accordingly.’ Prosser and Keeton On Torts, Fifth Ed., Chp. 5, p. 197-198. To the extent that the negligence of another causes the harm involved, ‘[t]he duty arises * * * only where a reasonable person would recognize the existence of an unreasonable risk of harm to others through the intervention of such negligence.’ Id., at p. 199.
To ‘entrust’ is ‘[t]o give over to another something after a relation of trust and confidence has been established. To deliver something to another in trust or to
commit something to another with a certain confidence regarding his care, use or disposal of it.’ Black‘s Law Dictionary, supra.”
Deangelis v. Donley, 2nd Dist. No. 17223, 1999 WL 41888, *4 (Jan. 29, 1999).
{46} Deangelis involved facts that are similar to those in the case at bar. In Deangelis, the plaintiff suffered an injury at a party that twenty-one year old Riley Miles hosted at his parents’ home while the parents were out of town. Miles’ parents specifically told him that he was not permitted to host a party. The plaintiff filed a negligence complaint against, inter alia, Miles and his parents and alleged that Miles’ parents negligently entrusted their home to Riley, their son. The appellate court refused to impose liability under a negligent entrustment theory when the son violated the specific trust that the parents had placed in him, i.e., not to have a party. The court explained:
“The evidence is undisputed that George and Barbara Miles specifically told their son that he was not to have a party at their home while they were away. Thus, if the risk of the type of harm that Plaintiff Deangelis suffered was reasonably foreseeable to them, George and Barbara Miles acted according to except from any entrustment they conferred on their son the authority to hold a party in their home [sic]. The fact that he breached whatever limited or other trust they reposed in him does not demonstrate that, in fact, they reposed some other or broader form of trust that included holding the party at which Plaintiff Deangelis was injured.
Though the trial court erred when it granted summary judgment for the Defendants on the negligent entrustment claim because their son was an adult, the judgment itself was correct. Reasonable minds could not conclude other than that George and Barbara Miles did not entrust their property to their son to use for the purpose from which the Plaintiffs injuries proximately resulted. In fact, that use was expressly unauthorized by them. Therefore, there is no basis from which their liability to the Plaintiff on a theory of negligent entrustment can be found, and the Defendants were entitled to summary judgment in their favor on their motion for that relief.”
{47} Assuming, arguendo, that negligent entrustment of a home is a viable claim,2 based
{48} Moreover, the risk of harm that ultimately befell the decedent is not the type of harm that a reasonable homeowner would expect to occur when permitting an individual to host a party at the homeowner‘s premises. In the words of the Restatement, supra, it is not negligence to permit another person (the Walravens) to use a thing that is under the control of the actor (appellees’ home), if the actor (appellees) does not know or should not know that such person (the Walravens) intends or is likely to use the thing to conduct himself in the activity (hosting a party) in such a manner as to create an unreasonable risk of harm (death or physical injury) to others.
3
Proximate Cause
{49} Furthermore, even if genuine issues of material fact remain regarding whether appellees breached a duty imposed under the social host doctrine or negligent entrustment theory, no genuine issues of material fact remain as to whether those alleged breaches proximately caused the decedent‘s death. We do not believe that any reasonable person could conclude that the
{50} “The rule of proximate cause ‘requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that is, such consequence as under the surrounding circumstances of the particular case might, and should have been foreseen or anticipated by the wrongdoer as likely to follow his negligent act.” Jeffers v. Olexo, 43 Ohio St.3d 140, 143, 539 N.E.2d 614 (1989), quoting Ross v. Nutt, 177 Ohio St. 113, 203 N.E. 118 (1964). “[I]n order to establish proximate cause, foreseeability must be found. * * * ‘If an injury is the natural and probable consequence of a negligent act and it is such as should have been foreseen in the light of all the attending circumstances, the injury is then the proximate result of the negligence * * * ‘” Mussivand v. David, 45 Ohio St.3d 314, 321, 544 N.E.2d 265 (1989), quoting Mudrich v. Standard Oil Co., 153 Ohio St. 31, 39, 90 N.E.2d 859 (1950). “The standard test for establishing causation is the sine qua non or ‘but for’ test. Thus, a defendant‘s conduct is a cause of the event (or harm) if the event (or harm) would not have occurred but for that conduct; conversely, the defendant‘s conduct is not the cause of the event (or harm) if the event (or harm) would have occurred regardless of the conduct. Prosser & Keeton, Law of Torts (5 Ed.1984) 266.” Anderson v. St. Francis-St. George Hosp., Inc., 77 Ohio St.3d 82, 84-85, 671 N.E.2d 225 (1996). “[L]egal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.” Johnson v. Univ. Hosp. of Cleveland, 44 Ohio St.3d 49, 57, 540 N.E.2d 1370 (1989), quoting Prosser & Keeton, Law of Torts (5 Ed.1984) 264, Section 41; see, also, Hester v. Dwivedi, 89 Ohio St.3d 575, 733 N.E.2d 1161 (2000).
{52} Any break in the chain of causation will relieve the defendant of liability. Leibreich, 67 Ohio St.3d at 269 (67 Ohio St.3d 266, 617 N.E.2d 1068 (1993)) (“[T]he existence of intervening and superseding causes of injury can be a defense to actions brought under theories of both negligence and strict liability in tort.“). “A break will occur when there intervenes between an agency creating a hazard and an injury resulting therefrom another conscious and responsible agency which could or should have eliminated the hazard. However, the intervening cause must be disconnected from the negligence of the first person and must be of itself an efficient, independent, and self-producing cause of the injury.” Berdyck v. Shinde, 66 Ohio St.3d 573, 584-585, 613 N.E.2d 1014 (1993) (citations omitted).
{53} The test to determine whether an “intervening act was foreseeable, and therefore a consequence of the original negligent act, or whether the intervening act operates to absolve the
{54} Like proximate cause, “the issue of intervening causation generally presents factual issues to be decided by the trier of fact. The determination of intervening causation ‘involves a weighing of the evidence, and an application of the appropriate law to such facts, a function normally to be carried out by the trier of facts.” Liebreich, 67 Ohio St.3d at 269 (citations
{55} In the case at bar, we do not believe that any reasonable person could conclude that death by allegedly criminal means is a natural and probable consequence of permitting individuals to borrow one‘s home for a high-school graduation and birthday party. We likewise do not believe that an individual being stabbed to death is a natural and probable consequence of a social host permitting underage alcohol consumption or possession on the host‘s premises. See Pandey v. Banachowski, 10th Dist. No. 11AP-459, 2011-Ohio-6830, ¶41, quoting Federal Steel and Wire Corporation v. Ruhlin Construction Company, 45 Ohio St.3d 171, 174, 543 N.E.2d 769 (1989) (stating that “the law usually does not require the prudent person to expect the criminal activity of others“). Furthermore, we believe that a reasonable person could only conclude that C.L.‘s use of self-defense to repel the decedent‘s attack was an intervening and superseding cause. In the case sub judice, the ultimate cause of the decedent‘s death is so far-removed from any negligence that appellees may have committed that it would be manifestly unjust to impose legal responsibility.3 Consequently, appellees cannot be held liable for the decedent‘s unfortunate death, and the trial court did not err by entering summary judgment in appellees’ favor.
{56} Accordingly, based upon the foregoing reasons, we overrule appellant‘s assignments of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellees recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Kline, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.