IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Arlend Sammons,
:
Plaintiff-Appellee,
:
v.
:
No. 99AP-796
Board of Commissioners of Franklin
:
(ACCEL
ERATED CALENDAR)
County et al.,
:
Defendants-Appellants.
:
O P I N I O N
Rendered on April 18, 2000
Phillip L. Harmon , for appellant.
Ron O'Brien, Prosecuting Attorney, and Harland H. Hale , for
appellee Board of Commissioners of Franklin County.
Janet E. Jackson , City Attorney, Daniel W. Drake and
Todd M. Rodgers , for appellee City of Columbus.
APPEAL from the Franklin County Court of Common Ple as.
McCORMAC, J.
Plaintiff, Arlend Sammons, appeals, asserting as h is sole assignment of error,
the granting by the Court of Common Pleas of Frankl in County the motions of defendants
City of Columbus and Franklin County for summary ju dgment.
From September 1991 to October 1995, plaintiff ope rated a gas station and
convenience store located at 331 Neil Avenue, Colum bus, Ohio. Plaintiff operated the
No. 99AP-796
7
business under an oral lease from the property owne r, William Wilson. The gas station,
known as the "Big House Fuel Mart," was located on
the northwest corner of Neil Avenue
and Dublin Avenue with ingress and egress available from both streets. The property
was located on the west side of Neil Avenue which s eparated it from the property of the
former Ohio Penitentiary.
Defendants City of Columbus and Franklin County ar e lessees of the Ohio
Penitentiary under a lease with the state of Ohio w hich was executed in 1990 in which
said defendants assumed a legal duty to maintain an d manage the Ohio Penitentiary.
On July 6, 1994, a section of the Ohio Penitentiar y's east outer wall
collapsed and crashed to the ground damaging severa l automobiles. After that incident,
the city initiated an inspection of the penitentiar y's perimeter wall. As a result, the
remainder of its outer wall was demolished, includi ng the west wall across from the Big
House Fuel Mart. During the demolition, Neil Avenu e was closed for approximately six
weeks during August and September 1994. The closur e prohibited access to two of four
driveways used for ingress and egress to the Big Ho use Fuel Mart, leaving two driveways
for public access still available by use of Dublin
Avenue.
In August 1995, Columbia Gas was digging on the so uthwest corner of
Dublin and Neil Avenues and detected substantial fr ee petroleum contamination in the
ground. After Columbia Gas informed the Ohio Burea u of Underground Storage Tank
Regulations (hereinafter "BUSTR") of the discovery,
BUSTR investigated the
contamination and ordered the immediate shutdown of the fuel pumps at the Big House
Fuel Mart. The property owner, Mr. Wilson, contrac ted with Omega Environmental to
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remove the fuel tanks. The tanks were not replaced
and plaintiff completely closed his
business after October 1995.
We first consider the claim of plaintiff for busin ess interruption damages
during the six weeks Neil Avenue was closed while t he penitentiary's perimeter wall was
being razed for damages from the alleged negligence
of defendants to maintain or
inspect the penitentiary wall. Plaintiff contends that he is entitled to a jury trial to submit
his claim for damages from partial loss of business during the six-week period as two of
the four entry ways to the filling station were clo sed as well as for continuing damages for
interruption of business until October 1995 when pl aintiff no longer operated the filling
station. The claim for continuing business interru ption is based upon the testimony of
plaintiff that his business never recovered as many
of his former customers started
purchasing their gas from someone else and no longe r returned to his station.
There is sufficient evidence to constitute a reaso nable fact for the jury to
determine about whether defendants negligently fail ed to inspect and maintain the
perimeter walls of the penitentiary. Defendants ac quired this duty as a result of the lease
from the owner of the former Ohio Penitentiary and,
thus, undertook any duty that the
owner would have a duty to anyone proximately injur ed by the negligent failure.
The crucial issue concerning this claim for relief
is whether the damages
alleged to have been sustained were reasonably fore seeable from the failure of
defendants to inspect and maintain the penitentiary wall. See Menifee v. Ohio Welding
Products (1984), 15 Ohio St.3d 75, 77. Defendants only owe d a duty to prevent the type
No. 99AP-796
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of injuries that are reasonably foreseeable as a re sult of its alleged failure to maintain the
wall.
When reviewing the grant of summary judgment, the
principles guiding the
standard of review are set forth in Civ.R. 56(C) wh ich mandates that the following be
established: (1) that there is no genuine issue o f any material fact, (2) that the moving
party is entitled to judgment as a matter of law, a nd (3) that reasonable minds can come
to but one conclusion and, viewing the evidence mos t strongly in favor of the nonmoving
party, that conclusion is adverse to the nonmoving
party. Bostic v. Connor (1988), 37
Ohio St.3d 144.
There are few, if any, facts in dispute concerning
the collapse of the wall
other than the cause for it which, as stated previo usly, is a question of fact for a jury.
However, there must also be a factual issue for the
jury that would, if resolved favorably,
allow recovery of damages suffered during the time
that Neil Avenue was closed and
there was partial restriction of access to plaintif f's filling station. The crucial issue is that
of proximate causation. Even though there is a dut y and a breach of that duty, damages
are not allowable unless they are proximately cause d by the breach of duty attributed to
defendants. In this case, there was no physical da mage caused to the property which
plaintiff leased. The restriction of ingress to pl aintiff's filling station was partial only as
there were two lanes of access from an unaffected s treet. The partial restriction occurred
for only six weeks, a time that in all probability
would have occurred even if defendants
had discovered that the wall was in poor condition
before its collapse as it was the razing
of the perimeter wall that caused the closing of th e street. Construing all facts most
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favorable to plaintiff, we conclude that a reasonab le finder of fact could not find a
proximate compensable causation between the closure of Neil Avenue for six weeks,
particularly in light of the fact that the city has
a duty to keep its streets open and in repair,
safe from conditions that could cause damages to on going users. Any alleged damages
from a diminished continuation of business, alleged ly because of customers going
elsewhere during the six-week period, is also not c ompensable.
For the reasons
discussed previously and because they are too specu lative to be compensable. Thus,
plaintiff's claim for damages for negligence due to Neil Avenue being closed for six weeks
while the penitentiary perimeter wall was razed was
subject to summary judgment
determination, there being no genuine issue of fact
concerning foreseeable damages.
The trial court did not err in granting summary jud gment for this part of the claim.
Plaintiff further seeks damages that he alleges we re proximately caused by
the nuisance or trespass of defendants due to alleg ed underground contamination
emanating from the penitentiary site proximately ca using termination of his lease and
damages stemming therefrom.
Plaintiff argues that there is a genuine issue of
fact about whether the
pollution, which resulted in the removal of the gas oline tanks at the Big House Fuel Mart
site and closure of the filling station, came from
leaking tanks at the filling station site or
from pollution that came from the penitentiary site .
Even if there were facts giving rise to a reasonab le inference that the
contamination, in whole or part, came from the peni tentiary site, plaintiff's claim for relief
for damages incurred by the closure of the leased f illing station fails as a matter of law.
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The record is undisputed that BUSTR ordered plaint iff to close his pumps.
The reason for the closure was not because of conta mination on or around the Big House
Fuel Mart and Neil Avenue but, rather, because BUST R suspected that the tanks
operated by the Big House Fuel Mart were leaking.
Plaintiff admits that BUSTR would
have permitted resumption of fuel sales once they w ere satisfied that the underground
tanks were not leaking. Plaintiff or the lessor of
the property could have demonstrated
that the tanks were not leaking by performing a lea k test on the tanks which both plaintiff
and the property owner refused to do. There is no
evidence that defendants ordered
plaintiff to close his pumps or to mitigate any con tamination, either under the Big House
Fuel Mart site or under Neil or Dublin Avenues.
Th e property owner made the
independent decision to have the underground tanks removed after BUSTR ordered them
closed. The decision to remove the tanks was not c aused by defendants' alleged
negligent maintenance of the penitentiary site, but because BUSTR believed that the
tanks were leaking.
Plaintiff chose to terminate his business because
he could not reach an
agreement with the property owner for a long term l ease. He voluntarily chose to
terminate his business and his month-to-month inter est in the property.
Summary judgment was properly granted to defendant s on the issue of
trespass or negligence in the contamination of soil
from the penitentiary site. The
circumstances surrounding the termination of his bu siness were, as a matter of law, not
proximately caused by defendants.
No. 99AP-796
7
Plaintiff's assignment of error is overruled and t he judgment of the trial court
is affirmed.
Judgment affirmed.
BRYANT and DESHLER, JJ., concur.
McCORMAC, J., retired, of the Tenth Appellate Distr ict,
assigned to active duty under authority of Section 6(C), Article
IV, Ohio Constitution.