COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70663 : BEACON INSURANCE CO. : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION RANDY PATRICK, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 3, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court Case No. CV-287877 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: PATRICK J. O'MALLEY, ESQ. FORREST A. NORMAN, III, ESQ. UHLINGER & KEIS KERRY S. VOLSKY, ESQ. 75 Public Square, #800 HERMANN, CAHN & SCHNEIDER Cleveland, Ohio 44113 1301 East 9th Street, #500 Cleveland, Ohio 44114-1876 - 2 - KARPINSKI, J.: Plaintiff-appellant, Beacon Insurance Company of America, appeals from the judgment of the trial court granting summary judgment in favor of defendant-appellee, Larry Walters, Jr. Defendant Walters was a trespasser on the construction site of a home when a co-trespasser, Randy Patrick, started a fire that burned down the partially-built home. The issue in the case at bar is whether any tortious liability attaches to defendant Walters for this incident. For the reasons that follow, the judgment of the trial court is affirmed. The facts of this case are largely undisputed. On February 7, 1963, defendant Walters and his friend, Randy Patrick, were riding through a subdivision under construction in Middleburg Heights, Ohio. Their ages on this date were 15 and 17 respectively. They stopped and entered a house under construction at 18051 Jefferson Park, No. 102. This property was owned by Baldwin Reserve Company and insured by plaintiff. The decision to enter was mutual. According to Patrick, they entered the house, just for something to do. They entered together and went upstairs; then they split up and defendant Walters went back downstairs. Defendant Walters left the house and re-entered while Patrick was upstairs. Patrick stated he was a smoker and had cigarettes and a lighter on his person. Because it was dark in the bathroom Patrick lit a paper tag attached to a - 3 - plastic bag hanging on the shower bar. He described the events after he saw the tag was burning as follows: A. I left the bathroom and walked into the hall and looked at the -- It gave off light and everything and then it was-- Q. Then what happened? A. Then I decided to walk back in the bathroom and all that plastic was all in flames. And I tried to turn on the tub to see if there was any water running. There was no water. After unsuccessfully trying to put out the fire, Patrick went downstairs and told defendant Walters that they had to get out of the house because he had accidentally set the wall on fire. Patrick added he had no intention of damaging the house when they entered. Defendant Walters stated that when they entered the house he did not have a lighter or matches on his person and that he was not a smoker. He did not damage the house, he said, while they were inside. Defendant Walters recalled that Patrick lit a cigarette upstairs, and then defendant Walters went back downstairs. Shortly thereafter, Patrick came downstairs and told defendant Walters that he had started a fire upstairs and that it was out of control. They rushed out and did not notice smoke until they bicycled down the sidewalk. Defendant Walters said they did not call the fire department because they were scared; he could not remember whether they even discussed calling the fire department. As a result of the fire, the property was damaged in the amount of $104,407.64. Plaintiff paid this entire amount to the insured and became subrogated to the extent of payment. - 4 - Thereafter, on April 13, 1995, plaintiff filed a complaint against the two youths, Randy Patrick and defendant Walters, along with the parents and/or legal guardians of the boys. On May 2, 1995, plaintiff voluntarily dismissed all the parents and/or guardians without prejudice and filed an amended complaint against only Randy Patrick and defendant Walters, with the same negligence allegation. On November 20, 1995, plaintiff dismissed, with prejudice, all the claims against Randy Patrick and his guardian, Judy Gagliardi. Thus only plaintiff's negligence claim against defendant Walters remained. After cross-motions for summary judgment were filed, the trial court granted summary judgment for defendant Walters. Plaintiff timely appealed, raising three assignments. The first states as follows: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT WALTER'S MOTION FOR SUMMARY JUDGMENT IN RULING THAT THE DEFENDANT'S FAILURE TO REPORT A FIRE IN PROGRESS DID NOT AMOUNT TO NEGLIGENCE UNDER THE CIRCUMSTANCES OF THIS CASE. Plaintiff brought this as a negligence action against defendant Walters and stated the claim as follows: 2. On February 7, 1993, the Defendants, Randy Patrick and Larry Walter, a minor, negligently caused a fire on the aforementioned property, proximately causing damage to Plaintiff insured's real property in the amount of $104,407.64. (Amended complaint at paragraph 2.) From the amended complaint it appears that plaintiff's initial theory was that defendant Walters caused the fire. This theory was later abandoned in plaintiff's cross-motion for summary judgment. Plaintiff now - 5 - does not dispute that defendant Walters did not participate in the starting of the fire. Plaintiff argues, rather, that defendant Walters was negligent after leaving the scene in failing to report the fire to any authority. "It is rudimentary that in order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom." DiGildo v. Caponi (1969), 18 Ohio St.2d 125. "Thus, the existence of a duty is fundamental to establishing actionable negligence. '* * * If there is no duty, then no legal liability can arise on account of negligence. Where there is no obligation of care or caution, there can be no actionable negligence.' (Footnotes omitted.) 70 Ohio Jurisprudence 3d (1986), 53-54, Negligence, Section B." Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142. Plaintiff can succeed only if it is determined that defendant Walters breached a duty of care by not calling the fire department or taking other steps to prevent the spread of the fire after Patrick told him that the house had been set on fire. There is little doubt as to the law regarding the failure to act. It is a longstanding legal proposition that there is no affirmative duty to take affirmative precautions for the aid or protection of another. The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action. Restatement of Torts, Second (1965), Section 314, Duty to Act for Protection of Others, page 116. As harsh as it may seem, this - 6 - rule restates the common legal examples that a person is under no legal duty to save a drowning man or to warn a blind person of an oncoming car. In the case at bar, defendant Walters similarly was under no legal duty to alert the authorities to the fire. The facts in the case at bar are strikingly similar to the Ohio Supreme Court case of Allstate Fire Ins. Co. v. Singler (1968), 14 Ohio St.2d 27. In that case two boys trespassed on a grocery store's property and one boy set fire to a box behind the store. The fire spread to the building and caused damage. The insurance company, as subrogee, filed an action against the two boys. The case went to the jury on the issues of negligence, proximate cause, and damages. The jury found in favor of the boys. The court of appeals reversed and found the boys liable because, as trespassers, they were liable for any damages proximately caused by their trespass. The Supreme Court reversed and noted that liability was different for each boy. Regarding Singler, the boy who started the fire, the Court affirmed the appellate court's holding that, as a trespasser, he was liable for damages proximately caused by his trespass. The Court went on to remand his case for jury determination on proximate cause. More importantly for the case at bar, the Court in Singler reversed the judgment against defendant Schwier because, notwithstanding the fact that he was also a trespasser, there was no evidence that he helped set the fire. The Court stated, at 30, as follows: - 7 - With regard to case No. 40838, in which appellant Schwier is the defendant, an examination of the record requires that conclusion that there is no evidence that Schwier actively participated or agreed with appellant Singler to set fire to the box behind the food store. Therefore, appellant Schwier can not be held liable for any of the damage to the insured's premises. See 1 Restatement of the Law, Torts, Sections 875 and 876; 1 Harper & James, Torts, Section 10.1; Prosser, Torts (3d ed. 1964), 258 et seq.; see, also Bloom v. Leech (1929), 120 Ohio St. 239, 166 N.E. 137; Bell v. Miller (1831), 5 Ohio 251; Flandermyer v. Urbanowitz (1907), 21 C.C. (N.S.) 128, affirmed without opinion, 79 Ohio St. 450, 87 N.E. 1142. This is precisely the situation as in the case at bar. Much like Schwier in the above-quoted case, defendant Walters did not actively participate or agree to set the fire. Accordingly, no liability attached to him. In support, plaintiff cites American Economy Insurance Co. v. Knowles (July 26, 1996), Montgomery App. No. 15-451, unreported. In Knowles a group of boys started a fire outside a convenience store, and it was unknown which child started the fire. The court stated the failure of any of the boys to call the fire department was evidence of group involvement. In the case at bar, however, it is undisputed that defendant Walters had nothing to do with starting the fire, and who did start it is known. Plaintiff also cites Wigton v. Lavender (1980), 70 Ohio App.2d 241. In Wigton a split court reversed a directed verdict in favor of a defendant who trespassed on plaintiff's property but did not participate in setting the fire that burned down plaintiff's barn. The court held "when a person trespasses on the lands of another that, while the trespass continues, he owes - 8 - a duty of care to the owner of the premises; and, such duty includes the obligation to protect the property from harm as a result of the trespass." The dissent, however, noted there was "no statutory or common law duty" placed upon defendant under these facts. Nor, he added, were the damages proximately caused by any duty defendant failed to perform, since he had not set the fire which resulted in the damages. Id. at 252. We agree with the analysis of the dissent in Wigton. We believe that the majority opinion in Wigton directly conflicts with Singler. Appellate courts are bound by the decisions of the Ohio Supreme Court. Carswell v. Toledo Edison Co. (1988), 53 Ohio App.3d 82; Smith v. Klem (1983), 6 Ohio St.3d 16. In the case at bar we are bound to follow the holding of the Supreme Court in Allstate v. Singler, supra, which explicitly held that, when a trespasser sets a fire during a trespass a co- trespasser uninvolved in setting the fire owes no duty to plaintiff-property owner. This is the position adopted recently by the Montgomery County Court of Appeals in Markey v. Barrett (Mar. 8, 1996), Montgomery App. No. 15243, unreported. In Markey, eighteen boys trespassed on a farm. Needing illumination, some of the boys lit a fire which later spread and consumed the barn. The trial court granted summary judgment for the boys who did not participate in setting the fire. After reviewing both Singler and Wigton, the appellate court affirmed and held that, "[u]nder the foregoing rules, a trespasser remains liable for harm to the property - 9 - proximately resulting from his own trespass. He is also liable for harm proximately resulting from the acts of a co-trespasser, but only if he knows or has reason to know that the co-trespasser intends to engage in the act, and fails to take steps to prevent 1 it." Id. (Emphasis added.) Like the defendants in Markey, defendant Walters in the case at bar (1) did not know or have reason to know that his co-trespasser, Patrick, intended to light the fire in the house and (2) was not present when Patrick had started the initial fire by lighting the tag. This assignment of error is overruled. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT WALTER'S MOTION FOR SUMMARY JUDGMENT IN RULING THAT THE DEFENDANT'S CONSPIRING TO NOT REPORT A FELONY ARSON OFFENSE IN VIOLATION OF O.R.C. [SECTION] 2921.22(A), DID NOT AMOUNT TO NEGLIGENCE UNDER ANY CIRCUMSTANCES. In this assignment, plaintiff argues that defendant Walters' failure to call the fire department is a violation of R.C. 2 2921.22(A) and thus evidence of his negligence. The trial court stated it would not consider this new theory of negligence 1 The court went on to state that in order for liability to attach to the boys who did not participate in setting the fire, plaintiffs would have to show that (1) that "during the course of the trespass the [boys] either knew that the initial barn fire had been set or were aware of a plan to set such a fire and (2) that they failed to take steps available to them to protect the property from that fire and the harm resulting from it." Id. (Emphasis added.) Summary judgment was granted to the boys who were neither (1) present when the initial fire was set nor (2) aware of any plan to set a fire. 2 This statute states as follows: No person, knowing that a felony has been or is being committed, shall knowingly fail to report such information to law enforcement authorities. - 10 - because it was never pled in the complaint. Because of this state's liberal policy of notice pleading, we will, however, address plaintiff's argument. See Civ.R. 8(A). When a statute does not provide a civil remedy, whether a violation of the statute constitutes negligence per se depends on the statue itself. Hite v. Brown (1995), 100 Ohio App.3d 606. If the statute exists for the safety of others and expresses in general or abstract terms a rule of conduct, negligence per se has no application. Then liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case. Id. at 612, citing to Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, paragraph three of the syllabus. In the case at bar the committee notes to this statute specifically state that the purpose of this law is to aid law enforcement. The notes state, in part, as follows: The rationale for requiring that serious crimes be reported is that effective crime prevention and law enforcement depend significantly on the cooperation of the public. Nothing in these notes supports the conclusion that the purpose of this law is to encourage a prompt response to fire. Second, it is doubtful whether a felony was committed in the case at bar. The record is silent on whether Patrick was ever charged with arson. Nor does the record show any evidence or allegation of criminal intent to support a charge of arson against Patrick. Finally, plaintiff has cited no case law attaching civil liability for a violation of R.C. 2921.22(A). - 11 - Because a violation of R.C. 2921.22(A) does not constitute negligence per se and because defendant Walters has not breached a standard of due care owed to plaintiff, defendant Walters is not liable as a matter of law. Accordingly, plaintiff's second assignment is overruled. III. THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT PLAINTIFF-APPELLANT PRODUCED NO EXPERT TESTIMONY ON THE AMOUNT OF DAMAGES WHICH WOULD HAVE BEEN SPARED WITH AN EARLIER REPORT TO THE FIRE DEPARTMENT. Because we find no actionable negligence in the case at bar, this assignment regarding expert testimony on the amount of damages is rendered moot. Judgment affirmed. - 12 - It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and PATTON, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .