Bier v. City of New Philadelphia

Per Curiam. The court of appeals affirmed the grant of summary judgment in the present case stating in its opinion that it found “no support in this record for the plaintiffs-appellants’ claim that the defendants-appellees’ breach proximately caused plaintiff’s [sic] unquestionable injury.” The case of Piqua v. Morris (1918), 98 Ohio St. 42, is still the law in Ohio concerning torts which are the proximate cause of an act of God concurrent with the negligence of a defendant. In Morris the court stated in paragraph one of the syllabus: “The proximate cause of a result is that which in a natural and continued sequence contributes to produce the result, without which it would not have happened. The fact that some other cause concurred with the negligence of a defendant in producing an injury, does not relieve him from liability unless it is shown such other cause would have produced the injury independently of defendant’s negligence.” While it has long been the rule of law in Ohio that a defendant cannot be held liable for an act of God which causes injury to the plaintiff, it has also long been the rule of law that, “[i]f proper care and diligence [on a defendant’s part] would have avoided the act, it is not excusable as the act of God.” Lodwicks & Kennedy v. Ohio Ins. Co. (1832), 5 Ohio 433, 437. In the present case, it was the defendants’ contention in their motion for summary judgment that the injuries sustained by the plaintiffs were the result of an act of God and, therefore, not chargeable to the alleged negligence of the defendants. The plaintiffs attached an affidavit by Marvin M. Frydenlund to their memorandum in opposition to summary judgment. Frydenlund is an expert in the area of lightning protection and is the present managing director of the Lightning Protection Institute in Harvard, Illinois. In his affidavit Frydenland drew upon his experience and expertise to aver that outdoor shelters which are not protected by a lightning protection system are attractors to lightning strikes. He further noted that, “[t]he reasonably prudent individual * * * would be aware of the need for lightning protection systems to be installed on metal-roofed outdoor buildings that are used by the public to ensure the safety of the public.” [136] Courts may not sustain a motion for summary judgment pursuant to Civ. R. 56(C), “* * * unless * * * reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.” Based on this standard the judgments of both lower courts are contrary to law. There is present in this case evidence on which reasonable minds could differ. Pursuant to the decision of this court in Morris: “ ‘* * * [I]f the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff’s damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage.’ ” Id. at 49. See, also, Majoros v. Cleveland Interurban RR. Co. (1933), 127 Ohio St. 255, at paragraph two of the syllabus. Therefore, in the instant case, the defendants could be found liable if a trier of fact were to find that the negligence of the defendants, in not installing a lightning protection system on the metal-roofed picnic shelter, is a concurrent cause of the plaintiffs’ injuries. Such a conclusion does not seem unreasonable, in view of the affidavit of plaintiffs’ expert, Frydenlund, submitted in opposition to the motion for summary judgment. In view of the standard required by Civ. R. 56(C) to sustain a motion for summary judgment, a standard not applied by the lower courts, this court is compelled to reverse the judgment of the court of appeals and remand the cause to the trial court for further determination. Judgment reversed and cause remanded. Celebrezze, C.J., W. Brown, Sweeney, Locher, C. Brown and J. P. Celebrezze, JJ., concur. Holmes, J., concurs separately.