Martin v. Lambert

[Cite as Martin v. Lambert, 2014-Ohio-715.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY

BREWCE MARTIN, :
:
Plaintiff-Appellant, : Case No. 12CA7
:
v. :
:
RAY LAMBERT, : DECISION AND JUDGMENT ENTRY
:
Defendant-Appellee. :
: RELEASED: 2/25/14
________________________________________________________________
APPEARANCES:

Janet G. Abaray, Calvin S. Tregre, Jr., and David C. Harman, BURG SIMPSON
ELDREDGE HERSH & JARDINE, P.C., Cincinnati, Ohio, for Appellant.

Deborah J. Mandt, Columbus, Ohio, for Appellee.
________________________________________________________________
Harsha, J.

{¶1} Brewce Martin suffered an injury on property Ray Lambert owned,

but had allowed his son to use as an automobile service center. Martin appeals

a summary judgment in Lambert’s1 favor on Martin’s negligence and negligent

entrustment claims. Martin argues the trial court erred as a matter of law

because Lambert owed Martin a duty to warn him of the son’s unsafe business

practices and incompetency to operate an automobile service center. Martin

additionally contends that genuine issues of material fact remain about whether

Lambert breached his duty to exercise reasonable care and whether Lambert’s

breach of duty proximately caused Martin’s injuries. Because Lambert did not

occupy or control his son’s business premises, Lambert did not owe Martin a

1
Unless the context suggests otherwise, “Lambert” refers to Ray Lambert.
Meigs App. No. 12CA7 2

duty to protect Martin from the conduct or condition that caused Martin's injury.

Consequently, the trial court properly entered summary judgment in Lambert’s

favor on Martin’s negligence claim.

{¶2} Martin also asserts that Lambert negligently entrusted the business

premises to his son. Martin claims Lambert’s son lacked the experience and

expertise to operate an automobile service center; thus, allowing the son to use

the premises resulted in an inherent danger. Even if we agree with Martin that a

landowner may be liable under a negligent entrustment theory when entrusting

real property to another for an inherently dangerous use, as a matter of law

Lambert’s son’s automobile service center was not inherently dangerous.

Accordingly, we overrule Martin’s assignment of error and affirm the trial court’s

judgment.

I. FACTS

{¶3} After purchasing a used truck, Martin needed to put new rims on it.

He removed the existing rims and tires and looked in his collection of rims to find

suitable ones to put on the truck. Martin believed he chose four 16-inch rims, but

he mistakenly chose four 16.5-inch rims. Martin then took his 16.5-inch rims and

16-inch tires to Rutland Service Center in order to have the tires placed on the

rims.

{¶4} Shawn Lambert, Ray Lambert’s son, owned and operated Rutland

Service Center, although Ray Lambert owned the property where the business

was located. The Lamberts did not enter into any formal written or verbal

agreement governing this relationship, but Ray allowed Shawn to open the
Meigs App. No. 12CA7 3

business in 2003. Shawn had owned and operated it, rent-free, continuously

since that time.

{¶5} When Martin arrived at Rutland for the “ten[th] to a hundred[th]

time,” he instructed Shawn to put the tires on the rims he brought to the shop. At

the time no one recognized that the rims and the tires were mismatched. Martin

entered the service area and assisted Shawn with mounting the tires. As Martin

used an air hose while attempting to place one of the 16-inch tires on a 16.5-inch

rim, the tire exploded and injured Martin.

{¶6} Martin subsequently filed a complaint against Ray Lambert and

alleged that Lambert failed to maintain the premises in a reasonably safe

condition and that he negligently entrusted the premises to his son.

{¶7} Lambert filed a summary judgment motion and conceded that

Martin was a business invitee and that Lambert owed him a duty to warn of any

latent dangers Martin himself had created. However, Lambert asserted he did

not own, operate, or control the business but merely owned the land. Therefore,

he could not be held liable for Martin’s injury, which occurred on his son’s

business premises and arose out of his son’s business operation. Essentially,

Lambert contended that he did not owe any duty to Martin for the premises or

conditions outside his control. Lambert also denied that he negligently entrusted

the property to his son.

{¶8} The trial court granted Lambert’s summary judgment motion. The

court determined that Lambert did not negligently entrust the building to his son

and that Lambert was not negligent under a premises liability theory because “an
Meigs App. No. 12CA7 4

owner of property [does not have] a duty to warn invitees about the alleged

incompetency of its tenants.”

II. ASSIGNMENT OF ERROR

Appellant raises one assignment of error:

“The trial court erred to the prejudice of plaintiff-appellant in
granting defendant-appellee’s motion for summary judgment.”

III. ANALYSIS

{¶9} In his sole assignment of error, Martin argues that the trial court

erred by entering summary judgment in Lambert’s favor. Although he raises

several reasons why the court improperly entered summary judgment in

Lambert’s favor, we find the question of Lambert’s duty to be dispositive of this

case.

{¶10} Martin contends that the court incorrectly determined that Lambert

did not owe him a duty. Martin asserts that Lambert, the owner of the property

upon which Martin suffered his injury, owed him a duty to exercise ordinary care

and to protect Martin by maintaining the premises in a reasonably safe condition

and by warning him of any dangers of which Lambert had knowledge. Martin

argues that this duty required Lambert to warn Martin of his son’s alleged

inexperience and incompetence, which Martin asserts was a defect in the

premises. Martin claims that Lambert owed him this duty even though Lambert

did not own or operate his son’s business. Martin contends that because

Lambert was the ultimate owner of the property where his son operated the

business, Lambert necessarily maintained control of the business premises and
Meigs App. No. 12CA7 5

thus had a duty to warn Martin of the latent danger associated with his son’s

alleged incompetency. Martin argues that the landlord-out-of-possession-and-

control exception does not absolve Lambert of liability for negligence because

Lambert and his son had not entered into a formal lease agreement.

{¶11} Martin also argues that Lambert may be liable for negligently

entrusting the property to his son for an alleged inherently dangerous use.

{¶12} Lambert agrees that Martin was a business invitee and that

Lambert owed Martin a duty to warn of “any latent or hidden danger with regard

to the building or grounds.” However, Lambert contends this duty is limited to the

buildings or grounds that Lambert occupied and controlled but does not extend to

any buildings or grounds that he merely owned and permitted his son to use.

Lambert asserts that he did not owe Martin any duty relating to his son’s

business or business premises because Lambert did not own or have any control

over his son’s business operation, which was the ultimate cause of Martin’s

injury.

{¶13} Lambert also asserts that his son's business operation is not an

inherently dangerous use as a matter of law, so negligent entrustment does not

apply.

A. STANDARD OF REVIEW

{¶14} We review a trial court’s summary judgment decision using a de

novo standard of review. Comer v. Risko, 106 Ohio St.3d 185, 2005–Ohio–4559,

833 N.E.2d 712, ¶8. Under Civ.R. 56, a trial court may grant summary judgment

when the movant establishes that “‘(1) [n]o genuine issue as to any material fact
Meigs App. No. 12CA7 6

remains to be litigated; (2) the moving party is entitled to judgment as a matter of

law; and (3) it appears from the evidence that reasonable minds can come to but

one conclusion, and viewing such evidence most strongly in favor of the party

against whom the motion for summary judgment is made, that conclusion is

adverse to that party.’” M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-

5336, 979 N.E.2d 1261, ¶12, quoting Temple v. Wean United, Inc., 50 Ohio St.2d

317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C); accord Esber Beverage

Co. v. Labatt USA Operating Co., L.L.C., --- Ohio St.3d ---, 2013-Ohio-4544, ---

N.E.2d ---, ¶9.

B. NEGLIGENCE

{¶15} 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); Menifee v. Ohio Welding Products, Inc., 15 Ohio

St.3d 75, 472 N.E.2d 707 (1984). If a defendant points to evidence illustrating

that the plaintiff will be unable to prove any one of the foregoing elements, and if

the plaintiff fails to respond as Civ.R.56 provides, the defendant is entitled to

judgment as a matter of law. Lang v. Holly Hill Motel, Inc., 4th Dist. Jackson No.

06CA18, 2007–Ohio–3898, ¶19, affirmed, 122 Ohio St.3d 120, 2009–Ohio–2495,

909 N.E.2d 120.

1. DUTY
Meigs App. No. 12CA7 7

{¶16} Duty is a threshold question in a negligence case. Armstrong v.

Best Buy Co., Inc., 99 Ohio St.3d 79, 2003–Ohio–2573, 788 N.E.2d 1088 ¶13;

Jackson v. Pike County Bd. Of Commr., 4th Dist. Pike No. 10CA805, 2010-Ohio-

4875, 2010 WL 3902618, ¶15. “’Duty, as used in Ohio tort law, refers to the

relationship between the plaintiff and the defendant from which arises an

obligation on the part of the defendant to exercise due care toward the plaintiff.’”

Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773

N.E.2d 1018, ¶23, quoting Commerce & Industry Ins. Co. v. Toledo, 45 Ohio

St.3d 96, 98, 543 N.E.2d 1188 (1989). “’If there is no duty, then no legal liability

can arise on account of negligence. Where there is no obligation of care or

caution, there can be no actionable negligence.’” Jeffers, 43 Ohio St.3d at 142,

quoting 70 Ohio Jurisprudence 3d (1986) 53–54, Negligence, Section 13

(footnotes omitted).

{¶17} The existence of a duty is a question of law for a court to decide,

even if resolving that question requires the court to consider the facts or

evidence. Grover v. Eli Lilly & Co., 63 Ohio St.3d 756, 762, 591 N.E.2d 696

(1992); Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989);

Ruta v. Breckenridge–Remy Co., 69 Ohio St.2d 66, 68, 23 O.O.3d 115, 430

N.E.2d 935 (1982) (“Simply because resolution of a question of law involves a

consideration of the evidence does not mean that the question of law is

converted into a question of fact or that a factual issue is raised.”); O’Day v.

Webb, 29 Ohio St.2d 215, 219, 280 N.E.2d 896 (1972) (“[A] review of the

evidence is more often than not vital to the resolution of a question of law. But
Meigs App. No. 12CA7 8

the fact that a question of law involves a consideration of the facts or the

evidence does not turn it into a question of fact.”).

{¶18} In a premises liability case, the relationship between the owner or

occupier of the premises and the injured party determines the duty owed. E.g.,

Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662

N.E.2d 287 (1996); Shump v. First Continental–Robinwood Assocs., 71 Ohio

St.3d 414, 417, 644 N.E.2d 291 (1994). A business premises owner or occupier

owes its invitees a duty to exercise ordinary care to maintain its premises in a

reasonably safe condition and to warn invitees of known latent or hidden

dangers. E.g., Armstrong at ¶5; Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio

St.3d 203, 203, 480 N.E.2d 474 (1985); Ray v. Wal-Mart Stores, Inc., --- Ohio

App.3d ---, 2013-Ohio-2684, 993 N.E.2d 808 (4th Dist.), ¶18. However, this “duty

does not extend to premises not in the possession and control of the business

owner.” Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130, 135, 652 N.E.2d

702 (1995).

{¶19} In this case, the parties agree that Lambert was the owner of the

property, that his son occupied the premises and owned the business where

Martin suffered his injury, and that Martin was his son’s business invitee.

Lambert further agrees that he owed Martin a duty of care applicable to business

invitees. However, Lambert asserts that his duty to keep the premises in a

reasonably safe condition extends only to the premises he occupied and

controlled. Lambert contends that he did not owe Martin any duty relating to

conditions that arose after he passed control of the premises to his son. Lambert
Meigs App. No. 12CA7 9

thus argues that because he did not occupy or control his son’s automobile

service center—the premises upon which Martin suffered his injury—then he did

not owe Martin a duty.

2. LANDOWNER’S DUTY

{¶20} “Historically, a landowner’s liability in tort is incident to the

occupation or control of the land, which involves the owner’s right and power to

admit and exclude people from the premises.” Simmers v. Bentley Constr. Co.,

64 Ohio St.3d 642, 644-645, 597 N.E.2d 504 (1992); Torchik v. Boyce, 121 Ohio

St.3d 440, 2009-Ohio-1248, 905 N.E.2d 179, ¶12 (“A landowner’s or occupier’s

liability in tort to persons injured upon their premises is based on the owner’s or

occupier’s power and right to admit people to the premises and to exclude people

from it.”). “It is fundamental that to have a duty to keep premises safe for others

one must be in possession and control of the premises.” Simpson, 73 Ohio St.3d

at 132. “Courts have consistently required control as a predicate to liability

because the possessor of land is in the best position to diminish the danger to

invitees.” Id. at 133. Thus, a landowner who has “neither possession nor control

of premises is ordinarily not liable for damages resulting from the condition of the

premises.” Hendrix v. Eighth and Walnut Corp., 1 Ohio St.3d 205, 207, 438

N.E.2d 1149 (1982); Beaney v. Carlson (1963), 174 Ohio St. 409, 411, 189

N.E.2d 880, 881 (“Liability is an incident of occupation or control of the

premises.”); Simpson at syllabus (stating that business owner’s duty extends only

to premises “in the possession and control of the business owner”).

{¶21} “The test to be applied in determining control has been expressed
Meigs App. No. 12CA7 10

as ‘the power and right to admit people to the premises and to exclude people

from it, and involves a substantial exercise of that right and power.’” Simpson, 73

Ohio St.3d at 132, quoting Wills v. Frank Hoover Supply, 26 Ohio St.3d 186, 188,

497 N.E.2d 1118 (1986); accord Mitchell v. Cleveland Elec. Illum. Co., 30 Ohio

St.3d 92, 94, 507 N.E.2d 352 (1987) (“The control necessary as the basis for tort

liability implies the power and the right to admit people to the premises and to

exclude people from it and the substantial exercise of that right and power.”).

“The quantum of control necessary for premises liability is one that is physical

and actual, and not one that is merely legal or theoretical.” Monnin v. Fifth Third

Bank of Miami Valley, N.A., 103 Ohio App.3d 213, 222, 658 N.E.2d 1140 (2nd

Dist.,1995).

{¶22} “Because one person is usually both the owner and possessor of

real estate, in many premises liability cases no question arises as to who has the

responsibility to maintain a premises in a safe condition.” Shump, 71 Ohio St.3d

at 417. However, when “a party other than the owner possesses a premises (as

in the case of a leased premises), under the common law of premises liability,

the possessor or occupier and not the owner owes the applicable legal duty to

the entrant.” Id. (citations omitted).

{¶23} Thus, “’[a]t common law, subject to certain exceptions, the occupier

or tenant, and not the landlord, [is] liable for injuries occurring to a third person on

or off the premises. * * * A tenant in possession is practically the owner of the

property. If the building afterwards becomes dangerous in law, the owner [is] not

liable for an injury occurring thereon.’” Kauffman v. First Central Trust Co., 151
Meigs App. No. 12CA7 11

Ohio St. 298, 304, 85 N.E.2d 796 (1949), quoting Harte v. Jones, 287 Pa. 37, 39,

134 A. 467; Grieser v. Huntington Nat. Bank of Columbus, 176 Ohio St. 291, 295,

199 N.E.2d 556 (1964), quoting 32 Am.Jur. 695, Section 817 (“’A tenant having

control of the demised premises is, so far as third persons or the public are

concerned, the owner, and in the cases of injuries to third parties, whether on or

off the premises occasioned by the condition or the use of the premises, it is the

general rule that prima facie, the breach of duty, and therefore the liability, is that

of the tenant and not that of the landlord.’”). Accordingly, “[t]he duty of a

[commercial] landlord to keep the demised premises or part of them in repair is

coextensive with the control retained by him * * *.” Beaney v. Carlson, 174 Ohio

St. 409, 412, 189 N.E.2d 880 (1964), quoting 32 Am.Jur. 654, Section 768;

Grieser, 176 Ohio St. at 293, quoting Shindelbeck v. Moon, 32 Ohio St. 264, 30

Am. Rep. 584 (1877) (“’A landlord who has demised property, parting with

possession and control thereof to a tenant in occupation, is not responsible for

injuries arising from defective condition of such premises, when that defect arises

during the continuance of the lease.’”); Rosen v. Concordia Evangelical Lutheran

Church, Inc., 111 Ohio App. 54, 58, 167 N.E.2d 671 (8th Dist., 1960) (“[A]

landlord out of possession and control owes no duty, either towards his tenant or

toward any other person who enters on the premises during the tenancy, to take

care that the premises are safe, either at the commencement of the tenancy or

during its continuance unless there be concealment of known dangers not readily

discoverable”). Moreover, a commercial landlord will not be liable for injuries a

third person sustains on the tenant’s premises if the landlord is “in no way linked
Meigs App. No. 12CA7 12

with management or direction of the affairs being conducted on such premises.”

Kauffman, 151 Ohio St. at 305.

{¶24} To exercise control over the property sufficient to impose liability,

the landlord must do more than retain authority over “routine and common acts

by a landlord [such as having the authority to approve or disapprove any

structural changes, being responsible for making repairs, and having the power

to evict the tenant] * * *.” Richeson v. Leist, 12th Dist. Warren No. CA2006-11-

138, 2007-Ohio-3610, ¶15; Hendrix, 1 Ohio St.3d at 207 (stating that reserving a

right to inspect the premises to enter the premises to make repairs “does not

justify a finding that the lessor retained control of the premises”); accord

Monahan v. Duke Realty Corp., 1st Dist. Hamilton No. C-070318, 2008-Ohio-

1113, ¶23 (“[N]either the reserved right of inspection nor the agreement of the

lessor to make repairs is sufficient to impose liability on a commercial landlord for

injuries to a third person on the premises.”). Instead, to have possession and

control over the premises, the landlord must “retain an absolute right to admit or

exclude persons from the area.” Monahan at ¶22; accord Richeson at ¶15 (“The

control necessary as the basis for liability in tort implies the power and right to

admit people to an area on the leased premises and to exclude people from it.”).

{¶25} In Grieser, for instance, the court refused to impose liability upon

the property owners when they did not occupy or control the premises. In that

case, the tenant (Mrs. Wilders) leased property from the fee owners and then, in

turn, rented part of the property to a third party. The third party died as a result of

inhaling carbon monoxide fumes from a heater that Mrs. Wilders’ husband had
Meigs App. No. 12CA7 13

installed twenty-four years earlier. The Grieser court refused to impose liability

on the fee owners and explained: “[T]he fee owners of the property, out of

possession and control, knew nothing about the existing conditions, including the

presence of the heaters, had no right to intrude into the premises, and were

under no obligation to manage and supervise the activities being conducted

there.” Id. The court further ruled that the fee owners’ “right to terminate the

tenancy after the expiration of the renewed lease did not” affect their non-liability.

Id.

{¶26} In Currier v. Penn-Ohio Logistics, 187 Ohio App.3d 32, 2010-Ohio-

198, 931 N.E.2d 129 (11th Dist.), an employee suffered fatal injuries while

working on premises that his employer leased. The employee’s estate

subsequently filed a negligence complaint against the landlord and others. The

trial court entered summary judgment in the landlord’s favor, determining that the

landlord did not retain possession and control even though the landlord often

visited the premises and retained the right to inspect the premises and establish

rules. The appellate court affirmed the trial court’s judgment and noted that no

evidence existed that the landlord retained the right to admit or exclude

individuals from the premises or ever exercised such a right. “[T]he retention of

control on the part of the landlord that * * * gives rise to liability to third parties

require[s] actual, physical control, not just a legal right to control.” Id. at ¶28.

The court explained: “[I]n order for a commercial landlord to be held to have

retained possession and control of the leased premises based on his retention of

the right to give consent to additions or alterations, it must be demonstrated that
Meigs App. No. 12CA7 14

the landlord actually exercised physical control; it is not sufficient that he merely

retained the legal or technical right to give consent to alterations or additions. Id.

at ¶31.

{¶27} In Monnin v. Fifth Third Bank of Miami Valley, N.A., 103 Ohio

App.3d 213, 658 N.E.2d 1140 (2nd Dist.,1995), the court refused to impose

liability upon the holding company that owned—but did not operate—a bank

branch. In Monnin, Fifth Third Bank of Miami Valley owned and operated a

branch that Fifth Third Bank of Cincinnati and Fifth Third Bankcorp owned as the

holding company. The plaintiffs asserted that the holding company was liable for

two individuals’ death resulting from an armed robbery, which the plaintiffs

asserted resulted from a lack of appropriate security measures undertaken at the

branch. The appellate court determined that the holding company could not be

liable because no evidence existed that it “had control over the decisions

regarding security at the * * * branch * * *, that this control was sufficient to

exclude people from the [branch] premises, and that [the holding company was]

in fact exercising that power.” Id. at 222.

{¶28} Here, Martin’s attempt to hold Lambert liable for injuries suffered on

the business premises that his son occupied is nearly identical to the plaintiffs’

attempts to impose liability on the holding company in Monnin and the property

owners in Grieser and Currier. In both Monnin and this case, someone other

than the occupier of the business premises held ultimate ownership of the

property and retained some degree of legal authority over it. However, just as in

Monnin, in this case there is no evidence that Lambert ever substantially
Meigs App. No. 12CA7 15

exercised any right he possessed to exclude or admit people from the premises

or otherwise exercised any degree of control over his son’s business. Indeed, as

Martin readily admits, Lambert took a “hands-off approach to his son’s business.”

{¶29} Furthermore, even if Lambert retained the right to remove his son

from the property, this right to terminate the tenancy does not constitute the

control necessary to impose a duty upon him. Grieser. Likewise, any theoretical

rights of control that Lambert retained do not demonstrate “control.” Currier.

Instead, for Lambert to have a duty to Martin for injuries suffered on Lambert’s

son’s business premises, Lambert must have “actually exercised physical

control,” not simply theoretical control, over the property. Currier. Even if

Lambert retained a right to inspect his son’s business operation or premises, to

establish rules, or to consent to additions or alterations to the premises, his

retention of these rights does not demonstrate that he exercised “control” so as

to give rise to liability for Martin’s injuries. Currier; accord Simpson v. Big Bear,

73 Ohio St.3d at 132 (holding that property owner must substantially exercise

right of control before liability may be imposed). There is no evidence that

Lambert ever substantially exercised any rights of control. In fact as already

noted, Martin never even argues that Lambert substantially exercised any right of

control. Martin’s assertions are based upon theoretical possibilities only—what

Lambert could have done. Although Lambert theoretically could have excluded

third parties from the premises or theoretically could have told his son what he

could and could not do with regard to the business, there simply is no evidence

that Lambert ever did so. Thus, because Lambert did not actually or
Meigs App. No. 12CA7 16

substantially exercise any control over the premises, he did not “control” them for

purposes of premises liability. Monnin, 103 Ohio App.3d at 222 (stating that

“quantum of control necessary for premises liability is one that is physical and

actual, and not one that is merely legal or theoretical”).

{¶30} Additionally, like Grieser, here Martin’s injury resulted from a

condition that the property owner did not create. In Grieser, the tenant created

the alleged danger, i.e., the heater; likewise in the case at bar, Lambert’s son

created the alleged danger, i.e., the son’s failure to recognize that Martin

requested the son to inflate 16-inch tires on 16.5-inch rims. This supposed

dangerous condition of the premises arose during Lambert’s son’s tenancy, did

not pre-date the tenancy, and was not a pre-existing condition on the premises.

Consequently, Lambert cannot be liable for an alleged hazard that arose during

his son’s tenancy. Instead, Lambert’s son, the tenant, owed a duty to Martin and

bears liability for any negligence arising from an alleged hazardous condition that

the son created.

{¶31} Martin nonetheless argues that the following facts demonstrate that

Lambert “[w]ithout question * * * retained ownership, possession, and control of

the property at all times:” (1) Lambert admits that he allowed his son to use the

building; (2) Lambert agrees that he and his son did not enter into a written lease;

and (3) Lambert admits that he owns the building but he does not have a

business relationship with Rutland; and (4) Lambert admits that he and his son

had not entered into any lease. Martin argues that these facts create a genuine

issue of material fact as to whether Lambert retained control over his son’s
Meigs App. No. 12CA7 17

automobile service center, the employees, or the equipment. As a matter of law

none of these facts, even if disputed, demonstrate the quantum of control

necessary to impose a duty upon Lambert as the property owner. None of these

facts show that Lambert actually or substantially exercised control over the

business premises. Even though Martin asserts that he “has argued throughout

this case that Ray Lambert maintained sole control over his property, including

control of the Rutland Service Center,” this is a conclusory allegation. The record

does not contain any facts to show that Lambert maintained sole control over his

son’s business premises or any “control” sufficient to impose liability. As noted

above, the facts Martin claims show that Lambert exercised sole control are not

sufficient as a matter of law to constitute the “control” necessary to impose a duty

upon Lambert.

{¶32} In sum, absolutely nothing in the record shows that Lambert

actually or substantially exercised control over his son’s business operation or

business premises. Under these circumstances, Lambert was not in possession

and control of the premises upon which Martin suffered his injury. Consequently,

Lambert did not owe Martin a duty concerning Martin's injury on those premises.

{¶33} Moreover, even though Martin argues that Lambert was not a

landlord and thus that the out-of-possession-and-control doctrine does not apply,

this doctrine is not limited to the landlord-tenant situation. Instead, the principle

is applicable to a landowner as well as a landlord (at least in the commercial

setting). Simmers, 64 Ohio St.3d at 644-645 (“a landowner’s liability in tort”);

Simpson, 73 Ohio St.3d at 132 (stating that “one must be in possession and
Meigs App. No. 12CA7 18

control”); Beaney v. Carlson, supra; Wolfe v. Bison Baseball, Inc., 10th Dist.

Franklin No. 09AP-905, 2010-Ohio-1390, ¶8 (“landowner’s liability in tort”).

Furthermore, in Simpson the Ohio Supreme Court set forth the rule in terms of a

“business owner’s” duty to a business invitee—it did not state the rule in terms of

the landowner’s duty to a business invitee when the landowner is not also the

business owner. The court stated: “A business owner has a duty to warn or

protect its business invitees * * *.” Id. at syllabus (emphasis added). Cf.

Restatement of the Law 2d, Torts 170, Section 328E (1965)2 (defining

“possessor” as “a person who is in occupation of the land with intent to control

it”); Grieser, 176 Ohio St. at 294-295 (construing term “owner” for purposes of

statute that imposed duties upon “owners and operators of shops and factories”

to prevent injuries to third persons “and came to the conclusion that the term,

‘owner,’ meant and comprehended the one conducting and in control of the

business activities being conducted on the premises and not the owner in fee of

the premises out of possession and control thereof”).

{¶34} Even if this exception were limited to the landlord-tenant situation,

the facts demonstrate that the legal effect of Lambert’s and his son’s relationship

was that of landlord and tenant. “[I]n the absence of a written, enforceable lease,

a tenancy at will is created.” Reid v. Plainsboro Partners III, 10th Dist. Nos.

2
The Restatement (Third) of Torts is intended to replace the Restatement (Second) of Torts. It
has been drafted in various stages with the most recent release being the Restatement (Third) of
Torts: Liability for Physical and Emotional Harm (2010). However, the Ohio Supreme Court has
not adopted any of its provisions. In fact, the Ohio Supreme Court continues to apply the
Restatement (Second) of Torts. Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711,
983 N.E.2d 266.
Meigs App. No. 12CA7 19

09AP-442 and 09AP-456, 2010-Ohio-4373, ¶33; accord New York Life Ins. Co. v.

Simplex Products Corp., 135 Ohio St. 501, 507, 21 N.E. 585 (1939) (noting that

any person who occupies premises “under bare permission” is a tenant at will).

Lambert gave his son “bare permission” to use the property for a business

purpose. Consequently, his son became a tenant at will and a tenancy at will

existed.

{¶35} Martin additionally asserts that Lambert is liable for failing to protect

him from his son’s reasonably foreseeable negligence. Martin argues that a

property owner can be liable for negligence under a premises liability theory if the

property owner fails to protect invitees from reasonably foreseeable harm

presented by third parties. The rule Martin cites states:

A breach of the standard of care can be predicated upon the action
of a third party which takes place on premises which are controlled by the
possessor:

“[A]n owner and occupier of land breaches his duty to invitees who
are injured by the negligent acts of third persons, where such owner and
occupier fails to exercise reasonable care to discover that such negligent
acts of third persons are being done or are likely to be done and fails to
give a warning adequate to enable such invitees to avoid harm, or fails to
act to protect such invitees against such negligent acts of third parties.”

Cassano v. Antenan-Stewart, Inc., 87 Ohio App.3d 7, 9-10, 621 N.E.2d 826 (12th

Dist.,1993) (emphasis added), quoting Holdshoe v. Whinery, 14 Ohio St.2d 134,

43 O.O.2d 240, 237 N.E.2d 127 (1968), paragraph four of the syllabus.

{¶36} A plain reading of this rule shows that it relates to a different fact

pattern then that presented here. The rule provides for potential liability of a

possessor of property when a business invitee is injured on the premises by the

foreseeable act of a negligent third party. For instance, in Cassano as the
Meigs App. No. 12CA7 20

plaintiff was walking on the sidewalk in front of the pharmacy, she was struck by

an automobile that had been parked in front of the store by a business invitee of

Rite Aid. While the business invitee of the pharmacy was in the store, an

occupant of the vehicle "engaged the automobile", causing it to strike the plaintiff

on the sidewalk in front of the store. The appellate court cited the rule noted by

our appellant to hold the issue of whether Rite Aid, which was the

possessor/occupier of the store, could be held liable for the injury caused by a

third person turned on whether the injury was foreseeable. Clearly the rule has

no application to our facts. First, the rule deals with those in possession of the

premises. Second, it addresses the element of a breach; it does not create a

duty. Rather it applies foreseeability to determine whether an existing duty has

been breached. Consequently, the trial court did not err by entering summary

judgment regarding Martin’s negligence claim.

C. NEGLIGENT ENTRUSTMENT

{¶37} Martin also seeks to hold Lambert liable under a negligent

entrustment theory. Martin asserts that Lambert possessed a duty because the

subject matter of the lease between Lambert and his son, i.e., the automobile

service center, involved an inherent danger when placed in the hands of

Lambert’s son, who Martin claims was inexperienced and incompetent to operate

it.

{¶38} “’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
Meigs App. No. 12CA7 21

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.’” Wesley v. Walraven, 4th Dist. Washington No. 12CA18, 2013-

Ohio-473, ¶45, quoting Deangelis v. Donley, 2nd Dist. Montgomery No. 17223

(Jan. 29, 1999) and assuming without deciding that negligent entrustment

doctrine applies to a person's home. We do likewise here, i.e., we assume the

doctrine applies to the business without expressly deciding so.

{¶39} Few cases have considered whether a property owner may be

liable for negligently entrusting real property to another. Some courts have held

that there is no such thing as “negligently leasing” property to another. Willis v.

Omega Oil Co., 2nd Dist. Montgomery No. 11546 (Apr. 10, 1990). As the Willis

court explained: “We do not consider land to be so inherently hazardous that an

owner can be held liable in tort for negligently entrusting possession of land to a

tenant.” Accord Long v. Tokai Bank of California, 114 Ohio App.3d 116, 127, 682

N.E.2d 1052 (2nd Dist. 1996) (refusing to hold financial lessor liable under

negligent leasing theory when lessor did not have any direct involvement with the

leased instrumentality).

{¶40} However, a case from 1978 appears to recognize the concept of

negligent leasing or negligently entrusting real property to another. Benlehr v.

Shell Oil Co., 62 Ohio App.2d 1, 6-7, 402 N.E.2d 1203 (1st Dist., 1978). In

Benlehr, the plaintiffs asserted that the landlord was liable for negligently
Meigs App. No. 12CA7 22

entrusting an automobile service station to the tenant. On appeal the court

framed the issue as “whether there are activities or situations involving a risk to

the public so material that the law will impose a duty on a landlord to exercise

due care in placing the activity within the control of a tenant.” Id. The court

agreed with the plaintiffs that “the subject matter of the lease between [the

landlord] and [the tenant] was one involving a use which may fairly be said to be

either inherently dangerous, or possessed of dangerous potentialities.” Id. The

court observed that the fire chief testified regarding “the explosive potential of

gasoline” and that when combined with fire, a service station that serves as a

repository of gasoline and petroleum products “is a potential disaster are awaiting

only the congruence of the two elements.” Id. The court determined that “[t]he

act of operating a gasoline service station obviously involves a substantial risk of

harm to others.” Id. at 9. “[T]he risk of entrusting its operation to an untrained or

incompetent operator would seem to invoke a peril of a magnitude sufficient to

charge the lessor with a duty of acting reasonably to protect others from harm.”

The court thus held that when “a lessor seeks to lease property for a use which is

inherently dangerous or has highly dangerous potentialities involving a

substantial risk to the general public, and such danger or risk to the public is such

that it may be foreseen by the lessor, the lessor owes a duty of reasonable care

in selecting and entrusting such property to a lessee." Id. at 10.

{¶41} Even if we were to agree with the Benlehr court that a landlord may

be liable for negligently entrusting property involving an inherently dangerous

use, Lambert’s son’s operation of the automobile service station did not involve
Meigs App. No. 12CA7 23

such a use. Sun Ins., Inc. v. Edwards, 97 Ohio App.3d 239, 243, 646 N.E.2d 535

(1st Dist., 1994) (stating that whether object is a dangerous instrumentality

constitutes a question of law); Frost v. Dayton Power and Light Co., 138 Ohio

App.3d 182, 189, 740 N.E.2d 734, fn.3 (4th Dist., 2000) (observing that whether

work is inherently dangerous is a question of law).

{¶42} Something is "inherently dangerous" when it is dangerous per se,

without requiring human intervention to produce the harmful effects. It is not the

danger arising from the collateral negligence of others under the particular

circumstances. See Black's Law Dictionary, (6th Edition 1991). Thus a business

or piece of equipment would be inherently dangerous if it was one from which the

risks cannot be eliminated.

{¶43} In Pusey v. Bator, 94 Ohio St.3d 275, 279, 762 N.E.2d 968 (2002),

the Supreme Court of Ohio determined that work is inherently dangerous when it

presents “a risk that is not a normal, routine matter of customary human activity,

such as driving an automobile, but *** rather [presents] a special danger to those

in the vicinity arising out of the particular situation created, and calling for special

precautions.” Id. at 280 (citations omitted). In other words, work is not inherently

dangerous if there is only a general anticipation of the possibility that negligence

may occur and thereby cause harm to a third party. Id. Simply because the

property owner may generally anticipate that the tenant might be negligent and

cause harm to a third party does not mean that the tenant’s occupancy and use

of the premises involves an inherent danger.

{¶44} Here, Lambert’s son’s automobile service center did not involve
Meigs App. No. 12CA7 24

special risks that were inherent without human intervention; instead it involved

ordinary and customary dangers that may arise when performing automobile

services, including filling tires with air. Here Martin has not identified any specific

objects or activities within the automobile service center that were inherently

dangerous, i.e., dangerous by their very nature. An air hose may become

dangerous but it is not dangerous by its very nature. It becomes potentially

dangerous when used improperly, just as almost any tool or piece of equipment

may become dangerous if used improperly.

{¶45} Although it is foreseeable that negligence may occur when

performing the ordinary and common activities of a automobile service center,

this general anticipation does not cause the service center to be inherently

dangerous. Filling tires with air and performing routine maintenance on

automobiles does not create a special danger sufficient to conclude that the

activity is inherently dangerous. Unlike the service station in Benlehr in this case

no evidence exists that Lambert’s son’s business housed gasoline or other

explosives or that it otherwise posed a risk of serious harm to the public.

{¶46} Martin argues that the presence of signs warning customers to stay

out of the service area for safety reasons by itself shows that the business

carried the potential for inherent dangers. Martin further asserts that Shawn’s

inexperience and routine practice of permitting customers into the service area

“made the service station even more dangerous and posed a substantial risk of

harm to customers.” Neither the presence of warning signs nor Shawn’s alleged

lack of experience involves an activity or situation presenting a risk to the public
Meigs App. No. 12CA7 25

so material that the law will impose a duty on a landlord to exercise due care in

placing the activity within the control of a tenant. Consequently, the trial court did

not err by entering summary judgment in Lambert’s favor regarding Martin’s

negligent entrustment claim.

{¶47} Accordingly, we overrule Martin’s assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.
Meigs App. No. 12CA7 26

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall
pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Meigs County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the
date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________________
William H. Harsha, 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.