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Wentling v. David Motor Coach Ltd.

Court of Appeals of Ohio, Fifth District, Stark

April 24, 2018

JEFFREY WENTLING, ETC., Plaintiff - Appellant
v.
DAVID MOTOR COACH LTD, ET AL., Defendants - Appellees

          Appeal from the Stark County Court of Common Pleas, Case No. 2017 CV 577

          FOR PLAINTIFF-APPELLANT STEPHEN P. GRIFFIN GRIFFIN LAW, LLC, MICHAEL J. KAHLENBERG KAHLENBERG LAW, LLC

          FOR DEFENDANTS-APPELLEES JEFFREY JAKMIDES

          JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. Craig R. Baldwin, J.

          OPINION

          Baldwin, J.

         {¶1} Plaintiff-appellant Jeffrey Wentling, Individually and as Administrator of the Estate of Richard S. Wentling, appeals from the September 22, 2017 Judgment Entry of the Stark County Court of Common Pleas granting summary judgment in favor of defendant-appellees.

         STATEMENT OF THE FACTS AND CASE

         {¶2} Richard S. Wentling ("the deceased") was an employee of appellee Davis Motor Coach, Ltd. Appellee David Motor Coach purchases wrecked or disabled commercial motor coach buses for the purpose of salvaging parts. Appellee Davis's President is appellee Frank. B. Bolog

         {¶3} On December 2, 2013, at the direction of appellee Bolog, the deceased was instructed to go to the "lower lot" of appellees' facility to obtain a downpipe and muffler bearing off of a scrap bus. The deceased jacked up and crawled underneath the bus in order to obtain the requested parts. While the deceased was underneath the bus, the jack began to sink into the soil causing the bus to compress the deceased's chest and head, slowly asphyxiating him. After another employee of appellee Davis found the deceased and called for emergency assistance, the deceased was transported to an area hospital. He never regained consciousness and died four days later.

         {¶4} Appellant, Individually and as Administrator of the deceased's estate, filed a complaint against appellee David Motor Coach, Ltd., appellee Frank. B. Bolog, appellee Fidelity U.S. Coach, Ltd. and appellee Mechanic Realty, Ltd., which is the owner of the property where the injury occurred.[1] The complaint alleged the following six causes of action:

         {¶5} Count 1- Negligence (all appellees)

         {¶6} Count 2- Employer Intentional Tort (appellees Davis, Fidelity and Bolog)

         {¶7} Count 3- Breach of Lease (appellee Mechanic Realty)

         {¶8} Count 4- Maintaining a Nuisance (all appellees)

         {¶9} Count 5- Premises Liability (all appellees)

         {¶10} Count 6- Wrongful Death (all appellees)

         {¶11} Appellees filed an answer to the complaint on April 12, 2017. On April 19, 2017, appellees filed a Notice of Filing of Certificate of Premium Payment for Workers' Compensation Coverage. The certificate indicated that appellee Davis Motor Coach, as employer, had paid into the Ohio State Insurance Fund.

         {¶12} Appellees, on April 19, 2017, filed A Motion for Summary Judgment, seeking summary judgment on the negligence and intentional tort claims. Appellant, on August 25, 2017, filed a brief in opposition to the Motion for Summary Judgment and a Motion for Discovery Sanctions. Appellant, in the brief in opposition, noted that appellees had "ignore[d] the nuisance claim at issue and do not address the unsafe condition of the property where the injury occurred." With respect to the Motion for Sanctions, appellant sought a "negative inference" discovery sanction for the appellees' spoliation of evidence. Appellant stated that the bus that came down on top of the deceased and the jack had both been disposed of and scrapped by appellees. Appellant argued that appellees' spoliation of evidence precluded summary judgment. On September 15, 2017, appellees filed a response to the brief in opposition to the Motion for Summary Judgment and a response to appellant's Motion for Discovery Sanctions. Appellees, in their response to the brief in opposition, acknowledged that "it was an oversight to not specifically address the entirety of Plaintiffs assertion that Defendant's property consists of a nuisance[.]" Appellees addressed the nuisance claim and noted, in part, that appellee Mechanic Realty, Ltd. had not been cited by a municipality for maintaining a nuisance.

         {¶13} The trial court, as memorialized in a Judgment Entry filed on September 22, 2017, granted appellees' Motion for Summary Judgment. The trial court, in its Judgment Entry, stated that "[t]his is a final appealable order and there is no just cause for delay."

         {¶14} Appellant now raises the following assignments of error on appeal:

         {¶15} I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT TO DEFENDANT MECHANIC REALTY, LTD. WHEN IT FAILED TO MEET ITS INITIAL BURDEN UNDER CIV.R. 56(B).

         {¶16} II. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO DEFENDANT MECHANIC REALTY, LTD. AND FRANK B. BOLOG ON THE BASIS OF EMPLOYER IMMUNITY WHEN NEITHER DEFENDANT EMPLOYED THE DECEDENT.

         {¶17} III. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO ASSESS A "NEGATIVE INFERENCE" SANCTION AGAINST DEFENDANTS FOR THEIR SPOLIATION OF EVIDENCE BECAUSE IT ...


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