MICHAEL J. RASHID Plaintiff-Appellee
MCCLYMONDS BUILDING ENTERPRISES, LTD. Defendant-Appellant
from the Stark County Court of Common Pleas, Case No.
Plaintiff-Appellee STACIE L. ROTH, ESQ. Allen Schulman &
Defendant-Appellant CARI FUSCO EVANS, ESQ. Fischer, Evans
& Robbins, Ltd.
JUDGES: Hon. W. Scott Gwin, P.J Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
Defendant-appellant McClymonds Building Enterprises, Ltd.
("McClymonds") appeals the September 5, 2018
Judgment Entry entered by the Stark County Court of Common
Pleas, which denied its motion for judgment notwithstanding
the verdict after a jury found it liable to
plaintiff-appellee Michael Rashid ("Rashid") for
OF THE FACTS AND CASE
In April, 2013, Rashid and 37 Erie, LLC entered into a
commercial lease agreement ("the Lease") with
McClymonds to rent a portion of the McClymonds Building,
located at 37 North Erie Street, SW, Massillon, Ohio. Rashid
intended to reopen the Alibi Sports Bar, which his uncle had
operated at the same location for nearly thirty years.
The McClymonds Building was undergoing renovations at the
time the parties entered into the Lease. Pursuant to the
terms of the Lease, Rashid and McClymonds were obligated to
complete specific work on the property in order for the Alibi
Sports Bar to reopen. Rashid and his crew commenced what was
designated under the Lease as "Tenant's Work"
at the beginning of August, 2013. McClymonds had placed a
dumpster at the bottom of the staircase located at the back
of the building. Rashid and his workers used the dumpster to
dispose of materials they had removed from the premises
during the renovations. Rashid had used the back staircase
numerous times to access the dumpster and had relied upon the
handrail when he did so.
On August 19, 2013, Rashid arrived at the premises at
approximately 8 p.m. His crew was working on flooring,
woodwork, and clean up at the time. Rashid exited the rear
door to determine whether there was room in the dumpster to
discard the old carpeting. Rashid started down the stairs,
reaching for the handrail. Unbeknownst to him, McClymonds had
replaced the staircase, but did not install a handrail at the
time. Rashid fell 12 to 15 feet into the stairwell leading to
the basement of the building. Rashid suffered injuries to his
legs and back as a result of the fall.
On May 23, 2017, Rashid refiled a Complaint against
McClymonds, alleging negligence and seeking compensatory
damages for the injuries he sustained as a result of the
August 19, 2013. McClymonds filed a motion for summary
judgment on September 29, 2017. Therein, McClymonds asserted
it was entitled to summary judgment because it lacked any
duty to protect Rashid pursuant to the terms of the Lease,
the rule of caveat emptor, and the fact the condition was
open and obvious. Rashid requested an extension of time in
which to file his memorandum in opposition, which the trial
court granted. Rashid filed his response to McClymonds'
motion for summary judgment on February 7, 2018. Via Judgment
Entry filed February 22, 2018, the trial court denied
McClymonds' motion, finding genuine issues of material
fact existed; therefore, McClymonds was not entitled to
judgment as a matter of law.
On April 20, 2018, McClymonds filed a motion for
reconsideration/clarification of motion for summary judgment,
requesting the trial court make a determination as to the
relationship of the parties. Rashid filed a response on May
3, 2018. The trial court conducted a hearing on the motion.
Via Judgment Entry filed June 20, 2018, the trial court found
Rashid to be a licensee, not a commercial tenant, at the time
of his fall. The trial court further found the waiver
provision in the Lease did not bar Rashid's claims.
It is from this judgment entry, McClymonds appeals, raising
the following assignments of error:
I. THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY JUDGMENT
OR A DIRECTED VERDICT IN FAVOR OF MCCLYMONDS BASED ON THE
OPEN AND OBVIOUS NATURE OF THE LACK OF A HANDRAILING AT THE
MCCLYMONDS BUILDING AND THE LACK OF ANY DUTY TO WARN
II. THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY
JUDGMENT OR A DIRECTED VERDICT IN FAVOR OF MCCLYMONDS DUE TO
THE HOLD HARMLESS PROVISION AGREED TO BY PLAINTIFF IN THE
COMMERCIAL LEASE BETWEEN THE PARTIES.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMITTING
EVIDENCE THAT PLAINTIFF DID NOT HAVE HEALTH INSURANCE [AND]
WAS NOT ABLE TO PAY FOR PAST AND FUTURE MEDICAL EXPENSES
REQUIRING A NEW TRIAL.
IV. THE VERDICT IN FAVOR OF PLAINTIFF WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE BASED UPON THE OPEN AND
OBVIOUS NATURE OF THE ALLEGED HAZARDOUS CONDITION AND THE
RECKLESS STANDARD THAT WAS TO BE APPLIED, AND THE VERDICT WAS
THE RESULT OF PASSION AND PREJUDICE DRIVEN BY THE JURY'S
KNOWLEDGE OF PLAINTIFF'S LACK OF HEALTH INSURANCE.
V. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO REDUCE
THE JURY'S VERDICT TO ACCOUNT FOR THEIR ALLOCATION OF
COMPARATIVE FAULT TO PLAINTIFF AS IDENTIFIED IN THEIR
RESPONSES TO JURY INTERROGATORIES.
For ease of discussion, we elect to address McCymonds'
second assignment of error first. In its second assignment of
error, McClymonds asserts the trial court erred in failing to
grant summary judgment or, alternatively, grant a directed
verdict in its favor based upon the hold harmless provision
in the Lease. Specifically, McClymonds claims the Lease not
only provided Rashid enter the property at his own risk and
be solely responsible for any injuries sustained, but also he
waive any claims for liability against McClymonds. We
Summary judgment proceedings present the appellate court with
the unique opportunity of reviewing the evidence in the same
manner as the trial court. Smiddy v. The Wedding Party,
Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As
such, this Court reviews an award of summary judgment de
novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105, 671 N.E.2d 241 (1996).
Civ.R. 56 provides summary judgment may be granted only after
the trial court determines: 1) no genuine issues as to any
material fact remain 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. Temple v.
Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267
Similar to a Civ.R. 56 motion for summary judgment, a motion
for a directed verdict can only be granted if, after
construing the evidence most favorably to the nonmoving
party, reasonable minds could come to but one conclusion upon
the evidence submitted. Civ.R. 50(A)(4); Ohio Cas. Ins.
Co. v. D&J Distrib. & Mfg., Inc., 6th Dist.
Lucas No. L-08-1104, 2009-Ohio-3806, ¶ 29.
"Indemnity" is defined as arising from
"contract, either express or implied, and is the right
of a person who has been compelled to pay what another should
have paid to require reimbursement." Worth v. Aetna
Cas. & Sur. Co., 32 Ohio St.3d 238, 240, 513 N.E.2d
253 (1987). In other words, when a person is secondarily
liable due to his relationship to the other party, and is
compelled to pay damages to an injured party, he may recoup
his loss for the entire amount of damages paid from the one
who is actually at fault, and who, in fact, caused the
injuries. See, Globe Indemn. Co. v. Schmitt, 142
Ohio St. 595, 603, 53 N.E .2d 790 (1944). The Ohio Supreme
Court has mandated indemnity contracts be strictly construed.
Griggy v. Edwards Motors, Inc., 5th Dist. Licking
No. CA-3684, 1992 WL 61580 (Mar. 11, 1992)*2, citing Kay
v. Pennsylvania RR. Co., 156 Ohio St. 503 (1952).
"Additionally, the intention to provide such
indemnification must be set forth in clear, unequivocal
"A general indemnification clause cannot relieve a
negligent indemnitee from the results of its own failure to
exercise ordinary care. Public policy requires that under
such circumstances the indemnification clause must be
strictly construed against the one seeking indemnity and
indemnification will not be provided unless so expressed in
clear and unequivocal language." Teledyne Osco Steel
v. Woods, 39 Ohio App.3d 145 (1987), citing, George
H. Dingledy Lumber Co. v. Erie RR. Co., 102 Ohio St.
236, 131 N.E. 723 (1921); Kay v. Pennsylvania RR.
Co., supra at paras. one and two of the syllabus. Put
another way, an indemnity agreement which purports to relieve
a party from the consequences of that party's own
negligence is unenforceable if it fails to express such an
intent in clear and unequivocal terms. "A negligent
party will not be relieved from the consequences of its own
The Lease provides, in relevant part:
§ 14. Indemnification of Landlord.
Tenant shall indemnify Landlord and save it harmless from and
against * * * actions, damages, liability and expenses in
connection with loss of life, personal injury and/or damage
to property arising from or out of any occurrence in, upon or
at the Premises, or any part thereof, or occasioned wholly or
in part by any act or omission of the Tenant, its agents,
contractors, employees, servants, lessees, or
concessionaires. In case Landlord shall, without fault on its
part, be made a party to any litigation commenced by or
against Tenant, then Tenant shall protect and hold Landlord
harmless and shall pay all costs and expenses incurred or
paid by * * * Landlord in connection with such litigation. *
We find the indemnification clause set forth in the Lease
does not express, in clear and unequivocal language, an
intent to relieve McClymonds from the consequences of its own
negligence. The language requiring Rashid, as Tenant, to
"pay all costs and expenses incurred or paid by"
McClymonds, as Landlord, further suggests there was no intent
to relieve McClymonds of such.
McClymonds' second assignment of error is overruled.
In its first assignment of error, McClymonds contends the
trial court erred in failing to grant summary judgment or,
alternatively, grant a directed verdict in its favor based
upon the open and obvious nature of the lack of the ...