COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70773 THOMAS L. AUST, ETC., : : Plaintiff-Appellant, : : JOURNAL ENTRY vs. : and : OPINION SPIRIT COMMUNICATION CONTRACTING, : INC., ET AL., : : Defendants-Appellees. : DATE OF ANNOUNCEMENT OF DECISION : JULY 31, 1997 CHARACTER OF PROCEEDING : Civil Appeal from : Common Pleas Court : Case No. 288707 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : __________________ APPEARANCES: For plaintiff-appellant: TERRANCE GRAVENS MARTIN T. FRANEY Gravens & Franey 1240 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendant-appellees: BARBARA L. ARMSTRONG BRENT M. BUCKLEY Buckley, King & Bluso 1400 Bank One Center Cleveland, Ohio 44114-2652 2 O'DONNELL, J.: Thomas Aust, Administrator of the Estate of his son, David Aust, formerly an employee of Spirit Communication Contracting, Inc., appeals from a decision of the Cuyahoga County Common Pleas Court granting summary judgment to the Lorain County Resource Recovery Complex, Inc. on claims that its employee, Leonard Jackson, negligently assisted in removal of Ohio Machinery, Inc.'s screen machine from Lorain's premises which resulted in David Aust's death when he was crushed between the shredder and the conveyor. The record reveals that, prior to Aust's death, Ohio Machinery, Inc. had provided the shredder/conveyor, known as a screen machine, on a demonstration basis to Lorain County Resource Recovery Complex, a landfill utilized by Browning Ferris Industries. Having determined that the machine did not suit its purposes, the record reveals that someone from the Lorain County facility called Ohio Machinery and requested that the screen machine be removed from its property. Ohio Machinery, having leased the screen machine to the C.E. Neubert Co., Inc. and Spirit Communications for use at a Cleveland Hopkins Airport jobsite, arranged for representatives of Neubert, Spirit and Ohio Machinery to dismantle the screen machine at the Lorain facility and transport it to the airport for reassembly. Ohio Machinery informed Lorain of its plans for removal of the machine. On May 3, 1993, when employees of Spirit, Neubert and Ohio 3 Machinery arrived to dismantle the screen machine, they all passed through the security gate, asked for and received assistance from Leonard Jackson, a Lorain employee, who had been told to assist in removal of the machine by operating a front-end loader, and who, at the direction of Tom Maloney, President of Neubert, moved the low end of the conveyor away from the shredder portion of the machine, but moved it onto unlevel ground which caused the drift pins to bind. In an effort to free the pins, Ken Taylor from Ohio Machinery, Chris Miller from Neubert, and David Aust from Spirit began to jump on the low end of the conveyor as Art Mercer from Spirit pounded the pins. When the pins freed, the low end of the conveyor began to rise like a teeter-totter, Taylor and Miller jumped to the ground, but Aust became pinned between the raised lower end of the conveyor and the shredder and later died from those injuries. Thomas Aust filed a wrongful death action against all of the companies involved. Lorain County moved for summary judgment which the court granted on May 13, 1996. Since claims against all other parties have now been settled, Aust appeals from the order of summary judgment and raises three assignments of error for our review. The first assignment of error states: THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE THE APPELLEE BREACHED ITS DUTY TO EXERCISE ORDINARY CARE TO DAVID AUST, WHO WAS AN INVITEE ON THE APPELLEE'S PREMISES. Aust contends the trial court erred in granting summary 4 judgment because David Aust became a business invitee when he entered the property and Lorain owed a duty to him to exercise ordinary care for his safety and also because removal of the screen machine benefitted the Lorain County Complex. Lorain, however, submits the court properly granted summary judgment because Aust, as a matter of law, was a licensee at the time of the accident, and because it received no benefit from removal of the screen machine from its property. The issue presented for our determination is whether the trial court correctly granted summary judgment in this case based upon David Aust's status on the property and the corresponding duty owed to him by the Lorain County complex. Civ.R. 56 governs summary judgment and states in pertinent part: (C) * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * We begin our analysis in this case with the respective definitions of invitee and licensee provided to us by the Ohio Supreme Court: Business invitees are persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner. Light v. Ohio University (1986), 28 Ohio St.3d 66, 68. Conversely, a person who enters the premises 5 of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation, is a licensee. Provencher v. Ohio Dept. Of Transp. (1990), 49 Ohio St.3d 265, 266. Further, in that case, the court also determined that the benefit conferred by an invitee must be economic or tangible. Significantly, also, the Supreme Court stated in Pennsylvania RR. Co. V. Vitti (1924), 111 Ohio St. 670 at syllabus 1: Where the evidence is such as to warrant, it is the duty of the trial court to submit to the jury with proper instructions the question whether the person injured on the premises of another by the claimed negligence of the owner thereof was at the time of such injury on the premises either at the express or implied invitation of the defendant, or whether he was a trespasser or a mere licensee. Here, the record reflects that within one day of having the screen machine delivered to its property on a trial basis, the Lorain Complex determined the machine did not meet its composting needs, and thus, called Ohio Machinery to have the machine removed from its premises. Further, the record shows the screen machine remained at the property for a period of at least two weeks. Although there is deposition testimony that the machine did not impair work at the landfill, reasonable minds could differ as to whether the Lorain Complex received any economic or tangible benefit from its removal. Further, in accordance with Vitti, supra, the determination of Aust's status as either an invitee or licensee becomes a genuine issue of material fact inappropriate for summary judgment disposition. Accordingly, this assignment of error is well taken and the 6 case is remanded for further proceedings consistent with Light, Provencher and Vitti, supra. The second assignment of error states: THE TRIAL COURT ERRED IN GRANTING THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE THE APPELLEE BREACHED ITS DUTY TO EXERCISE ORDINARY CARE TO DAVID AUST, WHO WAS A FREQUENTER ON THE APPELLEE'S PREMISES. Inasmuch as we have resolved the first assignment of error, this assignment is moot in accordance with App.R. 12(A)(1)(c) and we need not decide it. The third assignment of error states: THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE REASONABLE MINDS COULD CONCLUDE THAT THE APPELLEE HAD ASSUMED A DUTY TO EXERCISE ORDINARY CARE TOWARD DAVID AUST AND BREACHED THAT DUTY. The Administrator contends Lorain assumed a duty toward David Aust to exercise ordinary care when it instructed its employee, Leonard Jackson, to assist in the removal of the shredder/conveyor from the premises. Lorain argues it did not assume any duty toward David Aust. The issue presented for our review by this assigned error is whether the Lorain Complex, by instructing its employee, Leonard Jackson, to assist in the dismantling of the screen machine, assumed a duty to David Aust. In Elliott v. Fosdick & Hilmer, Inc. (1983), 9 Ohio App.3d 309, 314, the court addressed this concept stating: It is well-settled that where one undertakes an act which he has no duty to perform and another reasonably relies on that undertaking, the act must generally be performed with 7 ordinary care * * *. Independent of the issues raised by assignment of error one, and assuming that Lorain acted without a duty toward Aust when it instructed Jackson to assist in dismantiling the machine, pursuant to Elliott, supra, it obligated itself to a duty of ordinary care and obviously Aust relied to his detriment on that obligation. It is not contested that Jackson assisted in dismantling the screen 8 machine and that he specifically operated the front end loader because his employer told him to do so. A question of fact exists whether he acted in a negligent manner which ought to be submitted to a factfinder under proper court instruction, not decided on a summary judgment basis. Accordingly, this assignment of error is also well taken. Reversed and Remanded. 9 This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs. It is ordered that a special mandate be sent to said 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. PATTON, J., CONCURS; NAHRA, P.J., DISSENTS (See Dissenting Opinion attached) JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 2(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 of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70773 THOMAS L. AUST, ETC., : : Plaintiff-Appellant : : D I S S E N T I N G vs. : : O P I N I O N SPIRIT COMMUNICATION : CONTRACTING, INC., ET AL., : : Defendants-Appellees : DATE: JULY 31, 1997 NAHRA, P.J., DISSENTING: I respectfully dissent from the majority's conclusions in this case and would affirm the grant of summary judgment. As to appellant's first assignment of error, I would find that Aust was a licensee upon appellee's premises as he did not confer a legally substantial benefit to appellee and appellee cannot therefore be liable to appellant as a property owner in this complaint for negligence. In Light v. Ohio University (1986), 28 Ohio St.3d 66, 502 N.E.2d 611, the court stated that one who comes upon another's property by invitation, either express or implied, in order to benefit the property owner is an invitee. Id. at 68, 502 N.E.2d at 613. Conversely, a person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation is a licensee. Id. 2 The majority cites Provencher v. Ohio Dept. of Transp. (1990), 49 Ohio St.3d 265, for the proposition that the benefit conferred upon the property owner by an invitee must be economic or tangible. In its footnote justifying the use of this economic benefit test defining a business invitee, the Ohio Supreme Court cites other jurisdictions which define the economic benefit in terms of a mutual benefit to both the property owner and the person entering his land. See, Id. at 266 n.1. The undisputed evidence in this case is that appellee did not use or need the equipment Aust was removing and that the equipment had been on appellee's property for at least two weeks without impairing appellee's use of its property. In essence, this equipment was stored on appellee's property. In Wheeler v. The American Legion Community Home Co., Inc. (June 28, 1991), Ashtabula App. No. 90-A-1571, unreported, the court, citing Provencher, supra, found that a property owner who allowed participants in a nearby soapbox derby to store equipment received no tangible benefit. This reasoning is applicable here, where the record indicates appellee received no benefit from the removal of the stored equipment that it did not own, lease, rent, need, or use. As any possible benefit conferred upon appellee by the removal of the equipment by Aust cannot be found to be an economic or tangible benefit to it, it is error to impose liability on appellee. Accordingly, I would overrule appellant's first assignment of error. 3 As to appellee's second assignment of error, not addressed by the majority's decision, I would find that the Frequenter Statutes, R.C. 4101.11 and R.C. 4101.12, are inapplicable in this case due to Aust's status as a licensee on appellee's property. See, Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 190 n.1, 497 N.E.2d 1118, 1122 n. 1. Appellant also argues that appellee is liable because Jackson, as appellee's employee, actively participated in the removal of the equipment. See, e.g., Cafferkey v. Turner Construction Co. (1986), 21 Ohio St.3d 110, 488 N.E.2d 189; Hirschbach v. Cincinnati Gas & Electric Co. (1983), 6 Ohio St.3d 206, 452 N.E.2d 326. However, appellant produced no evidence that Jackson, acting only at the direction of others, actively participated in the removal of the equipment to the extent required by law to impose liability. See, Bond v. Howard Corp. (1995), 72 Ohio St.3d 332, 650 N.E.2d 416. For these reasons I would overrule appellant's second assignment of error. As to appellant's third assignment of error, even if it were assumed that Jackson undertook a duty to Aust, appellant made no showing that Aust relied on Jackson's undertaking where he merely acted at the direction of others. See, e.g., Hoffecker v. Great Lakes Mall, Inc. (Oct. 13, 1989), Lake App. No. 88-L-13-132, unreported. ( A premise of the assumption of duty doctrine is that where one undertakes an act which he has no duty to perform and another reasonably relies on that undertaking, the act must generally be performed with ordinary care. (Emphasis added.)) Moreover, appellant presented no evidence that Jackson acted 4 negligently in following the direction of the group who came to remove the equipment. For these reasons, I would overrule .