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Rashid v. McClymonds Building Enterprises, Ltd.

Court of Appeals of Ohio, Fifth District, Stark

July 8, 2019

MICHAEL J. RASHID Plaintiff-Appellee
v.
MCCLYMONDS BUILDING ENTERPRISES, LTD. Defendant-Appellant

          Appeal from the Stark County Court of Common Pleas, Case No. 2017CV01096

          For Plaintiff-Appellee STACIE L. ROTH, ESQ. Allen Schulman & Associates

          For 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.

          OPINION

          HOFFMAN, J.

         {¶1} 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 negligence.

         STATEMENT OF THE FACTS AND CASE

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.[1] 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.

         {¶6} 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.

         {¶7} 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 PLAINTIFF.
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.

         II

         {¶8} 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 disagree.

         {¶9} 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).

         {¶10} 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 (1977).

         {¶11} 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.

         {¶12} "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 terms." Id.

         {¶13} "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 negligence." Id.

         {¶14} 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. * * *

         {¶15} 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.

         {¶16} McClymonds' second assignment of error is overruled.

         I.

         {¶17} 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 ...


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