IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

Transcription

1 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO ALVIN WULFEKUHL, Plaintiff-Appellant, vs. COLUMBIA SAVINGS BANK and COMEY & SHEPHERD, Defendant-Appellees. APPEAL NO. C TRIAL NO. A JUDGMENT ENTRY. We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court. 1 Plaintiff-appellant, Alvin Wulfekuhl, filed suit for damages resulting from injuries allegedly sustained on property owned by defendant-appellee, Columbia Savings Bank ( Columbia ), and listed for sale by its real estate agent, defendantappellee, Comey & Shepherd ( Comey ). The trial court granted summary judgment in favor of Columbia and Comey, and Wulfekuhl now appeals that decision. For the following reasons, we affirm the judgment of the trial court. The record shows that on March 18, 2009, Wulfekuhl saw a For Sale sign on the property located at 2103 West Clifton Avenue and called the listed phone number. The real estate agent associated with Comey, Barbara Druffel, spoke with Wulfekuhl, and they agreed to make arrangements to see the house at a future date. At the end of the telephone conversation, Wulfekuhl got out of his car, crossed the 1 See S.Ct.R.Rep.Op. 3(A), App.R. 11.1(E), and Loc.R

2 street, and walked onto the property. Upon reaching the rear of the property, he walked down a slope, slipped, and fell. The wall of a partially remaining garage collapsed and injured him when he grabbed onto it in an attempt to stop his fall. In his sole assignment of error, Wulfekuhl argues that the trial court erred by granting summary judgment for Columbia and Comey. We review the entry of summary judgment de novo. 2 Under Civ.R. 56, summary judgment is appropriate if no material fact exists for trial, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion. 3 The duty of the trial court is to construe all the evidence most strongly in favor of the nonmoving party. 4 But when the evidence is construed in this manner, and it permits only one reasonable conclusion adverse to the nonmoving party, the moving party is entitled to judgment as a matter of law. 5 In Ohio, the status of a person who enters upon the land of another defines the scope of the legal duty that the landowner owes to the entrant. 6 Wulfekuhl argues that he was a business invitee on the property. To be categorized as an invitee, Wulfekuhl had to present some evidence to show that he rightfully came upon the property by invitation, express or implied, for some purpose which [wa]s beneficial to the owner. 7 Wulfekuhl argues that his sole purpose for being on the land was his interest in buying the land, which was a benefit to Columbia and Comey. But the status of an invitee is limited by the landowner s invitation. 8 2 Mitchell v. Blue Ash, 181 Ohio App.3d 804, 2009-Ohio-1887, 910 N.E.2d 1118, at 6. 3 Temple v. Wean United, Inc., 50 Ohio St.2d 317, 237, 1997-Ohio-420, 364 N.E.2d 267; Green v. Whiteside, 181 Ohio App.3d 253, 2009-Ohio-741, 908 N.E.2d 975, at 23; Stinespring v. Natorp Garden Stores, 127 Ohio App.3d 213, 215, 1998-Ohio-1698, 711 N.E.2d Id. 5 Id. 6 Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 316, 1996-Ohio-137, 662 N.E.2d Id. at Id. at

3 Neither Columbia nor Comey extended an invitation to Wulfekuhl to be on the for-sale property. A telephone conversation took place between Druffel and Wulfekuhl regarding Wulfekuhl s interest in the property. Recalling the conversation, Wulfekuhl stated that he had called Druffel and said, I would like to take a look [at the property], but I am leaving town for Europe. According to Wulfekuhl, Druffel replied, When you come back, call me and [I ll] make an appointment to show it to you. Wulfekuhl acknowledges that the only other detail discussed was the price of the house, and that this was the only conversation that took place between Druffel and Wulfekuhl before the accident. Furthermore, Wulfekuhl was asked if Druffel ever explicitly gave him permission to enter the property. Wulfekuhl admitted, No. But since I was there, I figured it had a for-sale sign on it, I [would] just look around. That s exactly what I did. Clearly, no invitation was given to Wulfekuhl to enter the land as an invitee. As a result Wulfekuhl was a trespasser upon the land on the day of the accident. A trespasser is one who, without express or implied authorization, invitation or inducement, enters private premises purely for his own purposes or convenience. 9 Wulfekuhl entered upon the land on the day of the accident for his own purpose and convenience. A future time and date was to be set for Druffel to show the property to Wulfekuhl as a potential buyer. But on March 18, 2009, Wulfekuhl went on the property to satisfy his own curiosity and because it was convenient to do so since he was already on the street in his car near the property. In accordance with R.C (A)(2) and the circumstances of Wulfekuhl entering the premises, his status on the land was that of a trespasser McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 510 N.E.2d R.C (A)(2). 3

4 Wulfekuhl argues that an implied invitation existed since the property was listed for sale, and nothing expressly stated that he was not permitted to enter upon the premises. In State v. Janson, this court clearly confronted this issue and rejected the claim of an implied invitation Does the house down the street for sale have a no trespassing sign on it? If the owner is not living there, is it legal to put a ladder up to a window and go inside? Of course not. 11 This court has stated that if we were to allow a claim of implied invitation and condone the actions of one such as Wulfekuhl who has admitted that he had no permission to go onto the land, it would declare open season for any member of the public to enter or remain on property for sale. 12 Therefore, listing property for sale does not create an invitation to the public to inspect the property. Because Wulfekuhl was a trespasser, the property owner owed him only the duty to refrain from willful, wanton, or reckless conduct that [wa]s likely to injure him. 13 Willful conduct is an intent, purpose, or design to injure, and wanton conduct occurs when one fails to exercise any care whatsoever toward those to whom he owes a duty of care, and his failure occurs under circumstances in which there is great probability that harm will result. 14 Wulfekuhl chose not only to trespass, but to inspect the backyard that sloped downward and had damp grass. And while doing this, he was wearing dress shoes with a heel. He submitted no evidence in the trial court to show that Columbia or Comey acted with willful, wanton, or reckless conduct to cause his injury. 11 State v. Janson, 183 Ohio App.3d 377, 2009-Ohio-3256, 917 N.E.2d 296, Id. at Gladon, supra, at 317; McKinney, supra, at McKinney, supra, at

5 Not only did Wulfekuhl fail to provide evidence that Columbia and Comey acted with willful, wanton, or reckless conduct to cause his injury, Comey could not have been held liable due to its status as a realtor. The duty that realtors owe to their prospective patrons can be analyzed within the traditional framework of premises liability. 15 As a result, premises liability only extends to the landowner, and there can be no liability where ownership has not been established. 16 Since the realtor was not the owner of the property in this case, Comey owed no duty and had no responsibility to Wulfekuhl. The trial court did not err in granting summary judgment in favor of Columbia and Comey. Therefore, Wulfekuhl s sole assignment of error is without merit, and the trial court s judgment is affirmed. A certified copy of this judgment entry is the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. DINKELACKER, P.J., HENDON and FISCHER, JJ. To the Clerk Enter upon the Journal of the Court on June 3, 2011 per order of the Court. Presiding Judge 15 Frazier by Lawson v. Ullom Realty, (Feb. 13, 1998), 4th Dist. No. 97CA Gladon, supra, at