Premises Liability; Motion for Summary Judgment Affirmed
Chansky v. Whirlpool Corp., (2005) 164 Ohio app.3d 641
In Chansky, a delivery person had traveled to Whirlpool Corp. and had been directed to enter the building at a certain door. As he exited the truck, the plaintiff while walking to a door, stepped onto a sharp metal object which caused injury. Unfortunately, the plaintiff was also diabetic and, therefore, an eventual amputation of his foot was claimed to have been due to the penetration of the sharp metal object into his foot.
Many of these cases typically turn upon an evaluation of notice of the defective condition by the property owner. This particular matter is interesting inasmuch as the court focused more on the foreseeability aspect of the injury in determining whether or not negligence had been established. Alternatively phrased, the court undertook a “look back” analysis in reaching its determination that the injury itself was not foreseeable which is an academically sound approach, but one that is not often seen in trial court or appellate opinions.
The court began its analysis by noting in paragraphs 16 and 17 the well settled principles dealing with premises liability:
“However, it must also be remembered that the mere happening of an injury on a business premises does not imply that there is any liability on the part of the owner.
A shopkeeper is not, however, an insurer of the customer’s safety. Further, a shopkeeper is under no duty to protect business invitees from dangers ‘which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them.’”
The court noted its emphasis upon the question of foreseeability and, while citing the Ohio Jury Instruction, Section 7.13, stated in paragraph 19 of its opinion, the following:
“In determining whether there is any breach of the duty of care owed to an invitee, the foreseeability of the injury must be considered.”
In paragraph 29 of its opinion, the court upheld the granting of summary judgment in favor of the defendant and employed the “look back” analysis described herein. The court stated the following:
“In affirming the trial court’s decision, we note that the defendants’ liability depends upon a reasonable foreseeability of an injury to the plaintiff in the circumstances alleged in this case. We particularly note that there is uncontroverted evidence that in the 26 years that defendant has operated the premises upon which the injury allegedly occurred, there has been no complaint or notice of any injury or alleged injury to any invitee upon those premises in the circumstances alleged by the plaintiff. This is a significant period of time, and obviously after those 26 years, the defendant would have no reason to foresee the kind of injury complained of by the plaintiff.”
The court went on to note that there was an absence of evidence relating to notice of a defect but, as previously stated, the case is interesting for its emphasis on the issue of foreseeability.
Ferrando Prejudice Established as a Matter of Law
Westfield Ins. Co. v. Russo (2005), 164 Ohio App.3d 533
The Ninth District Court of Appeals recently handed down a case interpreting and applying Ferrando v. Auto-Owners Mutual Ins. Co. (2002), 98 Ohio St.3d 186. In what generically has been referred to as “Ferrando prejudice,” the Ohio Supreme Court established a two-tier standard with regard to the elements necessary to prove a breach of the prompt-notice condition in an insurance contract. The Ferrando court stated in paragraphs 89-90 of its opinion the following:
“When an insurer’s denial of (uninsured or) underinsured motorist coverage is premised on the insured’s breach of a prompt-notice provision in a policy of insurance, the insurer is relieved of the obligation to provide coverage if it is prejudiced by the insured’s unreasonable delay in giving notice.”
In Russo, supra, the plaintiff was involved in an accident on November 21, 1993. She settled for policy limits with the tortfeasor’s carrier and thereafter settled for policy limits under her own underinsured motorist policy. At the time of the accident, she lived with her parents and, therefore, could also pursue Nationwide Insurance Company for underinsured motorist coverage. The plaintiff delayed notifying Nationwide Insurance Company for a period of eight years. During that period of time, she had undergone three surgeries of her shoulder, claimed to have suffered from lower back problems both before and after the accident, but those problems had resolved a year following the accident as well as a problem to the left hip. She also claimed ongoing pains of headaches and neck problems caused by the accident.
The court noted that the parties conceded that the prompt notice provision had been violated and instead turned its attention to whether or not Nationwide Insurance Company had established Ferrando prejudice. The court stated in paragraph 18 of its opinion, the following:
“We conclude that Nationwide was prejudiced as a result of the eight-year delay in notifying the insurer that a claim would be pursued for Russo’s injuries. Specifically, Nationwide was deprived of the opportunity to investigate any of Russo’s prior injuries or medical evaluations, had no opportunity to conduct its own independent medical evaluation, and was unable to get a clear, accurate, and timely assessment of the full scope of Russo’s injuries.”
In upholding the granting of summary judgment, the court stated, in paragraph 19, the following:
“The eight-year delay between the accident and Russo’s notifying Nationwide of a claim prevented Nationwide from conducting any sort of meaningful investigation regarding Russo’s health and injuries ... although the question of late notice is usually a question for the jury, ‘an unexcused significant delay may be unreasonable as a matter of law.’ Because Russo has not presented any excuse for the eight-year delay in notifying Nationwide of a claim, we find the amount of time that has passed to be significant and that the delay has resulted in prejudice to Nationwide. We agree with the trial court that Russo failed to meet her burden of producing sufficient evidence to rebut the presumption of prejudice resulting from her breach of the prompt-notice provision.”
The case is instructive in its application of the Ohio Supreme Court’s decision in Ormet Primary Aluminum Corp. v. Employers Ins. of Wausau (2000), 88 Ohio St.3d 292 which indicated that an insurance company can seek a determination, as a matter of law, that a delay is unreasonable if the delay is “unexcused.”
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
Premises Liability; Motion for Summary Judgment Affirmed
Chansky v. Whirlpool Corp., (2005) 164 Ohio app.3d 641
In Chansky, a delivery person had traveled to Whirlpool Corp. and had been directed to enter the building at a certain door. As he exited the truck, the plaintiff while walking to a door, stepped onto a sharp metal object which caused injury. Unfortunately, the plaintiff was also diabetic and, therefore, an eventual amputation of his foot was claimed to have been due to the penetration of the sharp metal object into his foot.
Many of these cases typically turn upon an evaluation of notice of the defective condition by the property owner. This particular matter is interesting inasmuch as the court focused more on the foreseeability aspect of the injury in determining whether or not negligence had been established. Alternatively phrased, the court undertook a “look back” analysis in reaching its determination that the injury itself was not foreseeable which is an academically sound approach, but one that is not often seen in trial court or appellate opinions.
The court began its analysis by noting in paragraphs 16 and 17 the well settled principles dealing with premises liability:
“However, it must also be remembered that the mere happening of an injury on a business premises does not imply that there is any liability on the part of the owner.
A shopkeeper is not, however, an insurer of the customer’s safety. Further, a shopkeeper is under no duty to protect business invitees from dangers ‘which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them.’”
The court noted its emphasis upon the question of foreseeability and, while citing the Ohio Jury Instruction, Section 7.13, stated in paragraph 19 of its opinion, the following:
“In determining whether there is any breach of the duty of care owed to an invitee, the foreseeability of the injury must be considered.”
In paragraph 29 of its opinion, the court upheld the granting of summary judgment in favor of the defendant and employed the “look back” analysis described herein. The court stated the following:
“In affirming the trial court’s decision, we note that the defendants’ liability depends upon a reasonable foreseeability of an injury to the plaintiff in the circumstances alleged in this case. We particularly note that there is uncontroverted evidence that in the 26 years that defendant has operated the premises upon which the injury allegedly occurred, there has been no complaint or notice of any injury or alleged injury to any invitee upon those premises in the circumstances alleged by the plaintiff. This is a significant period of time, and obviously after those 26 years, the defendant would have no reason to foresee the kind of injury complained of by the plaintiff.”
The court went on to note that there was an absence of evidence relating to notice of a defect but, as previously stated, the case is interesting for its emphasis on the issue of foreseeability.
Ferrando Prejudice Established as a Matter of Law
Westfield Ins. Co. v. Russo (2005), 164 Ohio App.3d 533
The Ninth District Court of Appeals recently handed down a case interpreting and applying Ferrando v. Auto-Owners Mutual Ins. Co. (2002), 98 Ohio St.3d 186. In what generically has been referred to as “Ferrando prejudice,” the Ohio Supreme Court established a two-tier standard with regard to the elements necessary to prove a breach of the prompt-notice condition in an insurance contract. The Ferrando court stated in paragraphs 89-90 of its opinion the following:
“When an insurer’s denial of (uninsured or) underinsured motorist coverage is premised on the insured’s breach of a prompt-notice provision in a policy of insurance, the insurer is relieved of the obligation to provide coverage if it is prejudiced by the insured’s unreasonable delay in giving notice.”
In Russo, supra, the plaintiff was involved in an accident on November 21, 1993. She settled for policy limits with the tortfeasor’s carrier and thereafter settled for policy limits under her own underinsured motorist policy. At the time of the accident, she lived with her parents and, therefore, could also pursue Nationwide Insurance Company for underinsured motorist coverage. The plaintiff delayed notifying Nationwide Insurance Company for a period of eight years. During that period of time, she had undergone three surgeries of her shoulder, claimed to have suffered from lower back problems both before and after the accident, but those problems had resolved a year following the accident as well as a problem to the left hip. She also claimed ongoing pains of headaches and neck problems caused by the accident.
The court noted that the parties conceded that the prompt notice provision had been violated and instead turned its attention to whether or not Nationwide Insurance Company had established Ferrando prejudice. The court stated in paragraph 18 of its opinion, the following:
“We conclude that Nationwide was prejudiced as a result of the eight-year delay in notifying the insurer that a claim would be pursued for Russo’s injuries. Specifically, Nationwide was deprived of the opportunity to investigate any of Russo’s prior injuries or medical evaluations, had no opportunity to conduct its own independent medical evaluation, and was unable to get a clear, accurate, and timely assessment of the full scope of Russo’s injuries.”
In upholding the granting of summary judgment, the court stated, in paragraph 19, the following:
“The eight-year delay between the accident and Russo’s notifying Nationwide of a claim prevented Nationwide from conducting any sort of meaningful investigation regarding Russo’s health and injuries ... although the question of late notice is usually a question for the jury, ‘an unexcused significant delay may be unreasonable as a matter of law.’ Because Russo has not presented any excuse for the eight-year delay in notifying Nationwide of a claim, we find the amount of time that has passed to be significant and that the delay has resulted in prejudice to Nationwide. We agree with the trial court that Russo failed to meet her burden of producing sufficient evidence to rebut the presumption of prejudice resulting from her breach of the prompt-notice provision.”
The case is instructive in its application of the Ohio Supreme Court’s decision in Ormet Primary Aluminum Corp. v. Employers Ins. of Wausau (2000), 88 Ohio St.3d 292 which indicated that an insurance company can seek a determination, as a matter of law, that a delay is unreasonable if the delay is “unexcused.”
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.