McGlinchey Commercial Law Bulletin
Have I committed Negligence Per Se? The Bullet Point: Volume 3, Issue 6Read Time: 4 mins
McGlinchey’s Commercial Law Bulletin is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation. We’re pleased to expand our Commercial Law Bulletin from its previous coverage of Ohio case law to include additional areas in McGlinchey’s footprint.
Negligence Per Se
Bacha v. Sam Pitzulo Homes & Remodeling, Inc., 7th Dist. Mahoning No. 17 MA 0097, 2019-Ohio-878.
This was an appeal of a trial court’s decision to grant summary judgment on various tort claims. In March 2014, the appellees were hired to remodel a hallway and kitchen. Appellees sub-contracted out the electrical work and the sub-contractor ultimately retained the appellant for the project. As part of the project, floor joists in the kitchen were removed. During this process, the appellant was on a ladder in the kitchen doing electrical work. When he stepped off the ladder he fell and suffered injuries. He and his wife then brought this lawsuit alleging claims for negligence, negligence per se, and loss of consortium.
Appellee ultimately moved for summary judgment and the trial court granted the motion finding that appellees owed the appellant no duty of care as an independent contractor. On appeal, the Seventh Appellate District affirmed in part and reversed in part. On the negligence per se claim, the court found that a violation of various Ohio worker safety regulations would not constitute negligence per se.
The Bullet Point: In order for a statute to impose negligence per se, the statutory requirement must be stated with sufficient specificity. Normally, when a legislative enactment imposes a specific duty for the safety of others, a violation of that statute constitutes negligence per se.
Final, Appealable Order
TD Reo Fund, LLC v. Citadel Analytics Group, LLC, 7th Dist. Mahoning No. 18 MA 0072, 2019-Ohio-939.
This case was a challenge to the finality of a foreclosure judgment. The appellant claimed that the judgment entry was not a final, appealable order because the order did not spell out the various advances made by the appellee for taxes and insurance, and instead included a clause that it was entitled to damages for “the advances of taxes, insurance, or otherwise expended to protect the property.”
The Seventh Appellate District disagreed, and held that the foreclosure judgment was a final, appealable order as the calculations for these advances were merely “mechanical or ministerial damage calculations.”
The Bullet Point: A foreclosure order which leaves merely mechanical or ministerial damage calculations for the confirmation stage is a final order. While a foreclosure order that does not identify the number, priority, and value of outstanding liens might not be a final, appealable order, an order that leaves for another day the value of certain advances for the protection of the property is. This is especially true because there are two final, appealable orders in a foreclosure action: the judgment entry and decree of foreclosure, and the confirmation of sale order. These types of advances are usually spelled out more fully in the confirmation order which can be appealed. Thus, “a judgment decree in foreclosure that allows as part of recoverable damages unspecified amounts advanced by the mortgagee for inspections, appraisals, property protection, and maintenance is a final, appealable order pursuant to R.C. 2505.02(B)(1).”
Kennedy v. Green, 5th Dist. Muskingum No. CT2018-0033, 2019-Ohio-854.
This was an appeal of a summary judgment decision in favor of the appellee in an easement action. Appellant had filed a lawsuit to establish an easement across appellee’s property. The basis for the lawsuit were documents on file with the county recorder’s office. The trial court ultimately found that no easement existed and granted appellee’s motion for summary judgment.
Appellant appealed but the Fifth Appellate District affirmed, finding that the recorded documents did not evidence the granting of an express easement to the appellant.
The Bullet Point: An easement is an interest in the land of another which entitles the owner of the easement, the dominant estate, to a limited use of the land in which the interest exists, the servient estate. The creation of an easement may be express, implied, or by prescription. In order to create an express easement, the owner of the servient property must grant or convey to the owner of the dominant property a right to use or benefit from his estate. An express easement may be created by grant, or by reservation or exception in a deed. Once an easement becomes part of the chain of title of the dominant property, such easement passes with the transfer of the property. However, in order for an easement to pass with the transfer of the property, some record of the easement must appear in the chain of title of the dominant parcel.
Levangie v. Raleigh, 2d Dist. Montgomery No. 27946, 2019-Ohio-810.
This was an appeal of the trial court’s decision to award plaintiff damages stemming from an apartment fire. The defendant owned a duplex, one part of which was destroyed by fire. The defendant had insurance and received proceeds in excess of $177,000 to repair the damage. She hired the plaintiff to complete the repairs and entered into a written contract. Eventually, defendant stopped payment and plaintiff filed suit. Defendant filed counterclaims including for unjust enrichment.
A bench trial was held and the court ultimately awarded the plaintiff in excess of $34,000. In so ruling, the court noted that plaintiff’s work was deficient and defendant had to make repairs to fix the work. Thus, plaintiff could not recover for breach of contract; he could recover under a theory of unjust enrichment.
Defendant appealed and on appeal the Second Appellate District reversed, finding that a claim for unjust enrichment was precluded by the existence of the written contract.
The Bullet Point: Unjust enrichment claims are based on a quasi-contractual theory. A quasi-contract is a contract implied in law. In contracts implied in law there is no meeting of the minds, but civil liability arises out of the obligation cast by law upon a person in receipt of benefits which he is not justly entitled to retain. Contracts implied in law are not true contracts; the relation springing therefrom is not in a strict sense contractual, but quasi-contractual or constructively contractual. The elements of an unjust enrichment claim are a benefit conferred, knowledge of the benefit by the receiving party, and a retention of the benefit under circumstances which would make it unjust to do so without payment. “It is clearly the law in Ohio that an equitable action in quasi-contract for unjust enrichment will not lie when the subject matter of that claim is covered by an express contract or a contract implied in fact. The mere fact that issues exist as to the creation of the contract or the construction of its terms does not alter this rule.”