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Merino v. Salem Hunting Club

December 4, 2008

JAMES MERINO PLAINTIFF-APPELLANT
v.
THE SALEM HUNTING CLUB, ET AL. DEFENDANTS-APPELLEES



CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2005-CV-381.

The opinion of the court was delivered by: Waite, J.

OPINION

JUDGMENT: Reversed and Remanded.

JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro.

{¶1} Appellant, James Merino, appeals the entry of summary judgment by the Columbiana County Court of Common Pleas in favor of Appellee, The Salem Hunting Club ("Club"). Although it was not entirely clear from his notice of appeal and his brief, Appellant conceded at oral argument that summary judgment was properly entered by the trial court in favor of the individual defendants, Rudy Nelson, Dale Iler, Jeffrey Simmons, Jeffrey France, Harry Regal, and Kenneth Bugno. Hence, this appeal entails issues solely dealing with the Club.

{¶2} Appellant is the owner of approximately 35 acres of real property at 1069 Benton Road, Salem, Ohio ("Merino property"), which is immediately adjacent to the Club. In his amended complaint, Appellant claims that Appellee is liable for damage to his property caused by stray bullets and ricochets from the Club under the theories of trespass, nuisance per se, qualified nuisance, and negligence. Appellant further contends that Appellee is liable for damage to his property resulting from lead and hazardous materials that have leached onto his property from the Club's property. Appellant also seeks to enjoin Appellee from continuing to discharge firearms and allow hazardous substances to leach onto his property.

{¶3} The trial court concluded that no genuine issues of material fact existed with respect to the essential elements of Appellant's claims, and that his evidence of actual damages constituted hearsay. However, despite Appellant's failure to support his allegation of actual damages with admissible evidence, genuine issues of material fact exist of record with respect to Appellant's qualified nuisance/negligence claim. Therefore, summary judgment should not have been granted in favor of the Club.

FACTS

{¶4} Appellant has lived at the Merino property his entire life, with the exception of a brief period in the 1980s. (Merino Aff., ¶2.) He purchased the Merino property in 1999 from his father's estate. (Merino Aff., ¶3.) As a child, Appellant's father warned him and his siblings to stay away from the Club's property line because of the shooting activities taking place there. (Merino Aff., ¶4.) Appellant recalled an occasion when one of his father's horses was shot by a bullet fired on the Club's property. (Merino Aff., ¶5.) He claims that the Club paid the veterinarian bills for the care of the animal. Neither Appellant nor his family members walk on or use portions of the Merino property closest to the Club's property line due to safety concerns. (Merino Aff., ¶6-7.)

{¶5} Appellant states that the number of shots fired at the Club has increased dramatically over the past ten years based upon the noise coming from the Club. (Merino Aff., ¶10.) He has personally observed and heard shotgun pellets fall onto his property while guests of the Club were shooting on the skeet/trap range. (Merino Aff., ¶19.)

{¶6} Appellant claims that, "[o]n one such visit, I discovered that the soil near the shotgun range was saturated with shotgun pellets to the point where they were clearly visible when picking up a handful of soil." (Merino Aff., ¶20.) This statement is confusing because it is not clear whether Appellant is talking about soil on the Merino property, the Club's property, or a neighboring property.

{¶7} After acquiring his property, Appellant decided to investigate its development possibilities, including the possibility of a small allotment for residential homes. (Merino Aff., ¶11.) He retained a forester to evaluate and value the timber closest to the Club's property line. (Merino Aff., ¶13.) The forester discovered bullets lodged in the trees, which were marked with scarring and broken limbs due to bullets. (Merino Aff., ¶14.) The forester informed Appellant that sawmills would not purchase the timber because of the significant risk to their machinery created by the metal lodged in the trees. (Merino Aff., ¶15.) A second forester confirmed that the timber was defective due to the presence of the bullets. (Merino Aff., ¶16.)

{¶8} There is a stream that flows from the Club property onto the Merino property, which Appellant intended to be the source of water for a pond in the proposed housing development. (Merino Aff., ¶22.) Tests conduced by Vadose Environmental, Inc., revealed that the level of contaminants in the soil and water was elevated. As a consequence, Appellant suspended his plans for the proposed housing development. (Merino Aff., ¶24-25.) EnviroServe estimated that remediation of the contaminated soil along the Club's property line would cost a minimum of $326,632.00 per acre. This figure does not account for any remediation of the stream. (Merino Aff., ¶26.)

{¶9} In addition to his own affidavit, Appellant attached the affidavit of Daniel Clevenger to his omnibus opposition brief to the motions for summary judgment. Clevenger is the owner and operator of K.C.'s Rifle and Pistol Club, a shooting range located in the State of Ohio. (Clevenger Aff., ¶4.) Clevenger constructed his K.C.'s Rifle and Pistol Club shooting range in 2004 in full compliance with the National Rifle Association Range Source Book and he is familiar with the standards of construction of shooting ranges.

{¶10} Section 2, Chapter 13, Article 2, 2.01.1.1 states, "[t]he individual range builder must build a facility that does not adversely affect the surrounding areas." (Clevenger Aff., ¶9.) Clevenger conducted a site inspection of the Club property and range operations in 2006. (Clevenger Aff., ¶5.) During his inspection, he viewed and walked the property, specifically looking at the rifle range, pistol range, and skeet/trap shooting field. (Clevenger Aff., ¶6.)

{¶11} According to Section 2, Chapter 2, 2.04 of the NRA Range Source Book, the range backstops should, "provide a primary impact area for the bullets after being fired at targets, keeping them from leaving the range proper under normal circumstances." (Clevenger Aff., ¶8.) However, the Club's range does not adequately protect adjacent property owners from stray bullets and ricochets, because the backstops do not meet the Source Book's standards. (Clevenger Aff., ¶7-8.)

{¶12} More specifically, the rifle range backstop falls far below the NRA Range Source Book standard and consistently allows stray bullets to travel onto the Merino property, significantly increasing the risk of substantial harm to persons and property. (Clevenger Aff., ¶9.) The bullets that either penetrated trees or came to rest on the Merino property did so in a pattern that indicates that the bullets came from the Club. (Clevenger Aff., ¶12.)

{ΒΆ13} The trial court found that the foregoing evidence was, "insufficient with respect to all Counts of the Complaint against all the Defendants," and that, "even assuming the validity of one or more causes of action, Plaintiff's damage claims are insufficient ...


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