[Cite as R&R Family Invests. v. Plastic Moldings Corp., 2016-Ohio-8125.]



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



R&R FAMILY INVESTMENTS,                          :          APPEAL NO. C-160382
                                                            TRIAL NO. A-1403727
         Plaintiff-Appellant,                    :

   vs.                                           :
                                                                  O P I N I O N.
THE PLASTIC MOLDINGS CORP.,                      :

GERDES HOLDING CO.,                              :

   and                                           :

CHARTER COMMERCIAL GA, LLC,                      :

         Defendants-Appellees.                   :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 14, 2016


Stagnaro, Saba & Patterson Co., L.P.A., Jeffrey M. Nye, and Paul T. Saba, for
Plaintiff-Appellant,

Timothy E. McKay, Travelers Staff Counsel, for Defendants-Appellees The Plastic
Moldings Corp. and Gerdes Holding Co.,

Dinsmore & Shohl LLP, Mark G. Arnzen, Jr., and Joseph E. Greiner, for Defendant-
Appellee Charter Commercial GA, LLC.
                    OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Presiding Judge.


        {¶1}   This is a dispute between adjoining private landowners. The issue, one

of first impression, is whether an uphill property owner and previous owners of that

property may be held liable in either nuisance or trespass to the downhill property

owner for damages caused by a natural landslide. We conclude that the uphill

property owner and its predecessors do not owe a duty to the downhill property

owner to repair damage from landslides or to prevent future landslides, when the

landslides are the result of the natural conditions of the property. Therefore, we

affirm the judgment of the trial court.

        {¶2}   Plaintiff-appellant R&R Family Investments (“R&R”) owns property

located at 1995 Grand Avenue in South Fairmont (the “Property”). R&R’s owner,

Reginald Hahn, purchased the Property in 2010 to house his collection of British

cars.   At the time R&R purchased the Property, defendant-appellee The Plastic

Moldings Corporation (“PMC”) owned the adjacent uphill property. In 2011, Hahn

began noticing dirt running down the hillside from PMC’s property onto his

property. Hahn contacted PMC in 2012 to notify it of the issue. In 2013, a smaller

landslide occurred and caused water issues in R&R’s building. Hahn then hired a

company to remove the dirt and to build a concrete-block wall. In April 2014, a

larger landslide occurred, which knocked over the concrete wall, impacted the wall of

R&R’s building, and caused further water damage. Within days of the landslide,

PMC sold the uphill property to an affiliated company—defendant-appellee Gerdes

Holding Co. (“Gerdes Holding”).

        {¶3}   After the 2014 landslide, R&R hired a geotechnical engineer, Joseph

Kowalski, to examine the Property and determine whether the soil and debris could


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be removed safely without compromising the hillside any further.           Kowalski

determined that natural movement of soil and material had caused the 2014

landslide. According to Kowalski, no human action had contributed to the state of

the hillside in the past 50 years.

       {¶4}    R&R filed a lawsuit against PMC and Gerdes Holding.           Shortly

thereafter, Gerdes Holding sold the uphill property to defendant-appellee Charter

Commercial, GA (“Charter Commercial”). In its amended complaint against PMC,

Gerdes Holding, and Charter Commercial (collectively “the Defendants”), R&R

asserted multiple claims, including claims for trespass and nuisance.        Charter

Commercial filed a counterclaim against R&R, alleging that R&R had built the

concrete-block wall on its property without its consent.

       {¶5}    The Defendants and R&R filed cross-motions for summary judgment,

which included requests for summary judgment on R&R’s claims for nuisance and

trespass. With respect to R&R’s trespass and nuisance claims, the trial court denied

R&R’s motion and granted the Defendants’ motion. The court determined that the

Defendants had not committed an intentional act, because the landslide occurred as

an act of nature, and thus R&R could not sustain a trespass claim. As to the nuisance

claim, the court determined that the Defendants did not owe any duty to R&R with

respect to the landslide, again because the landslide occurred naturally, and so R&R

could not prove a negligence theory of nuisance.

       {¶6}    After the trial court entered its summary-judgment decision, the only

issues remaining for the trial dealt with Charter Commercial’s counterclaim for

trespass. Once those issues had been resolved, the trial court entered a final order.

R&R now appeals the trial court’s summary-judgment decision.


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                                   Standard of Review

       {¶7}   When reviewing a summary-judgment ruling, we apply a de novo

standard of review. Schmidt v. Village of Newtown, 1st Dist. Hamilton No. C-

110470, 2012-Ohio-890, ¶ 6, citing Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738

N.E.2d 1243 (2000). Under Civ.R. 56(C), summary judgment is appropriate when

no genuine issues of material fact remain, the moving party is entitled to judgment as

a matter of law, and it appears from the evidence that reasonable minds can come to

but one conclusion, and with the evidence construed most strongly in favor of the

nonmoving party, that conclusion is adverse to that party. Schmidt at ¶ 6, citing

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

                                 R&R’s Nuisance Claim

       {¶8}   We address R&R’s second assignment of error first. In its second

assignment of error, R&R argues that the trial court erred in denying summary

judgment in its favor on its nuisance claim.

       {¶9}   R&R claims that the Defendants’ failure to maintain the hillside and to

prevent further landslides constitutes a nuisance. Nuisance can be established by

intentional, reckless, or negligent conduct. Colegrove v. Fred A. Nemann Co., 1st

Dist. Hamilton No. C-140171, 2015-Ohio-533, ¶ 20.           An absolute nuisance, or

nuisance per se, involves either an intentional or unlawful act, or a hazardous

situation for which absolute liability attaches. City of Cincinnati v. Beretta U.S.A.

Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 15, fn. 4; Metzger v.

Pa., O. & D. R. Co., 146 Ohio St. 406, 409, 66 N.E.2d 203 (1946).       By contrast, “a

qualified nuisance or nuisance dependent upon negligence consists of anything

lawfully but so negligently or carelessly done or permitted as to create a potential and


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                      OHIO FIRST DISTRICT COURT OF APPEALS



unreasonable risk of harm, which, in due course, results in injury to another.”

Taylor v. Cincinnati, 143 Ohio St. 426, 55 N.E.2d 724 (1944), paragraph three of the

syllabus; see State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, 780

N.E.2d 998, ¶ 59.       R&R moved for summary judgment on a qualified-nuisance

theory.

          {¶10} As with any negligence claim, the first issue is whether the Defendants

owed R&R a duty. See Strother v. Hutchinson, 67 Ohio St.2d 282, 423 N.E.2d 467

(1981); see also Wheatley v. Marietta College, 2016-Ohio-949, 48 N.E.3d 587, ¶ 54

(4th Dist.) (“Duty is a threshold question in a negligence case. If there is no duty,

then no legal liability can arise on account of negligence.”). Whether a duty exists is

a question of law. See Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265

(1989).

          {¶11} To support its claim that the Defendants owed R&R a duty to prevent

and remediate landslide damage, R&R relies on Heckert v. Patrick, 15 Ohio St.3d

402, 404, 473 N.E.2d 1204 (1984). In Heckert, the court faced the issue of whether a

private landowner could be held liable to a motorist injured on a public highway by a

falling tree limb. The court began by recognizing a distinction in Ohio law between

“passive use” and “active use” of land and stated that “[a] passive use includes the

use and enjoyment of the natural growth on the land.” Id. at 404. The court set forth

the general rule that “[n]either a possessor of land, nor a vendor, lessor, or other

transferor, is liable for physical harm caused to others outside of the land by a

natural condition of the land.” Id., quoting 2 Restatement of the Law 2d, Torts,

Section 363(1) (1965). The court noted that an exception to this general rule of

nonliability for natural conditions on real property exists for “[a] possessor of land in


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                    OHIO FIRST DISTRICT COURT OF APPEALS



an urban area [who] is subject to liability to persons using a public highway for

physical harm resulting from his failure to exercise reasonable care to prevent an

unreasonable risk of harm arising from the condition of trees on the land near the

highway.” 2 Restatement of the Law 2d, Torts, Section 363(2) (1965).

       {¶12} The Heckert court then addressed whether this exception should apply

to rural landowners, such as the defendant in the case before it. The court found that

“[i]f the danger is apparent to the rural property owner, he must take precautions to

protect the traveling public.” Heckert at 405. The court ultimately determined that

the rural property owner had no actual or constructive notice of the defective

condition of the tree limb and, therefore, owed no duty.

       {¶13} According to R&R, Heckert’s holding imposing a duty on landowners

with regard to a dangerous tree on their property, should be extended to a landslide

occurring between two adjoining landowners. For this proposition, R&R relies on

Woods v. Blodgett, 6th Dist. Erie No. E-85-35, 1997 Ohio App. LEXIS 6800 (May 16,

1986). In Woods, the court considered whether a property owner could be held

liable after a tree limb fell on an adjoining property owner’s car, causing damage.

After reasoning that Heckert represented a “move toward introducing general tort

theories of liability into the sphere of adjoining landowner liability,” the Woods court

held that “a landowner in an urban area has a duty to exercise reasonable care to

prevent an unreasonable risk of harm to adjoining neighbors from decaying,

defective or unsound trees of which such landowner has actual or constructive

notice.” Id.; see Jackson v. Ervin, 8th Dist. Cuyahoga No. 68842, 1995 Ohio App.

LEXIS 5099, *6 (Nov. 16, 1995); Estate of Durham v. City of Amherst, 51 Ohio

App.3d 106, 554 N.E.2d 945, 949 (9th Dist.1988).


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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} R&R also relies on a federal appellate decision, Norfolk-Southern

Railway Co. v. City of Pittsburgh, 235 Fed.Appx. 907 (3d Cir.2007). In Norfolk, the

plaintiff railway company sought a preliminary injunction to require the city of

Pittsburgh to take immediate action to prevent landslides on its property, which had

been causing and would continue to cause damage to the plaintiff’s railroad tracks

and to the plaintiff’s employees. In granting the preliminary injunction, the court

relied on Pennsylvania law in determining that the city of Pittsburgh had a general

duty to maintain its property so as to not injure adjoining landowners.

       {¶15} In arguing that no duty exists, the Defendants rely on the general rule

in 2 Restatement of the Law 2d, Torts, Section 363(1) (1965) (“Section 363”), as cited

in Heckert, that a property owner cannot be held liable to others outside the land for

damage caused by a natural condition of the property. The Defendants also rely on

an Ohio appellate decision, Rababy v. Metter, 2015-Ohio-1449, 30 N.E.3d 1018 (8th

Dist.). In Rababy, the plaintiff had sustained damages to his home and car from a

tree on his neighbor-defendant’s property. The Eighth District assumed, without

deciding, that the defendant had a duty to protect neighbors from a dangerous

condition, such as an unsound tree, but that the defendant had no notice that the

tree was unsound. Moreover, the court determined that the plaintiff’s remedy was

self-help, i.e., to trim the trees back to the property line. Id. at ¶ 20.

       {¶16} Reading together Heckert, Woods, and Rababy, as well as the other

cases cited above, courts appear to be moving away from a strict application of

Section 363. It should be noted that the Restatement Third of Torts has abolished

Section 363. The Third Restatement now provides that “[f]or natural conditions on

land that pose a risk of physical harm to persons or property not on the land, the


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                    OHIO FIRST DISTRICT COURT OF APPEALS



possessor of the land (1) has a duty of reasonable care if the land is commercial;

otherwise (2) has a duty of reasonable care only if the possessor knows of the risk or

if the risk is obvious.” 3 Restatement 3d of the Law, Tort, Liability for Physical and

Emotional Harm, Section 54(b) (2012). The comments to the Third Restatement

also acknowledge that “a trend exists toward expansion of the duties of land

possessors to a general duty of reasonable care with regard to natural conditions.”

Id. at Comment c.

       {¶17} Nevertheless, this court is bound by the analysis in Heckert. Heckert

recognized the difference between a property owner’s “passive” and “active” use of

land and relied on Section 363. In the absence of any indication from the Ohio

Supreme Court that Section 363 is not the law in Ohio, this court must follow it. See

In re Schott, 16 Ohio App.2d 72, 75, 241 N.E.2d 773 (1st Dist.1968) (holding that an

Ohio court of appeals is bound by the Ohio Supreme Court). Therefore, we hold that

a private landowner does not owe a duty to another private landowner to repair

damage from a landslide or to prevent future landslides, when the landslide is the

result of a natural condition of the property.

       {¶18} Our holding has been adopted outside Ohio. While not explicitly

adopting Section 363, a Washington court limited the duty of landowners to prevent

landslides “where the possessor of land has actual or constructive notice of a hazard

produced by an alteration to the natural condition of the land.” Price v. Seattle, 106

Wn.App. 647, 24 P.3d 1098 (2001). In Price, a group of residents sued the city of

Seattle after their homes were damaged by landslides originating on city-owned

property. The court held that because the residents could not show that the city had

altered the property to be “unnaturally vulnerable to the natural forces at work[,]”


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                   OHIO FIRST DISTRICT COURT OF APPEALS



the residents could not establish the duty element on their negligence claim.

Compare Sprecher v. Adamson Cos., 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121

(1981) (in determining whether any duty was owed with regard to a landslide caused

by natural conditions, the court rejected the distinction in the Second Restatement

between artificial and natural conditions and instead adopted a general test of

whether the landowner acted reasonably under all the circumstances).

       {¶19} Moreover, adopting a different approach would negate Ohio law on

surface-water disputes. In Ohio, courts apply a reasonable-use rule, which means

that a property owner may interfere with the natural flow of surface water, but will

“incur[] liability only when his harmful interference with the flow of surface water is

unreasonable.” McGlashan v. Spade Rockledge Terrace Condo Dev. Corp., 62 Ohio

St.2d 55, 60, 402 N.E.2d 1196 (1980). The reasonable-use rule presupposes that an

uphill property owner who does nothing to interfere with the natural flow of surface

water will not be liable to the downhill property owner unless the uphill property

owner interferes with the flow of the surface water.

       {¶20} The parties do not dispute that the landslides in this case resulted from

a natural movement of soil and other debris. Thus, the Defendants do not owe a duty

to R&R to repair damage from landslides or to prevent future landslides. Because no

duty exists on the part of the Defendants with respect to the landslides, we overrule

R&R’s second assignment of error.

                                 R&R’s Trespass Claim

       {¶21} In its first assignment of error, R&R argues that the trial court erred in

denying summary judgment in its favor on the trespass claim and in granting

summary judgment to the Defendants.


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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} Under Ohio law, a trespass occurs “when a person, without authority

or privilege, physically invades or unlawfully enters the private premises of another

whereby damages directly ensue.” Little Hocking Water Assn. v. E.I. du Pont de

Nemours & Co., 91 F.Supp.3d 940, 978 (S.D.Ohio 2015), quoting Apel v. Katz, 83

Ohio St.3d 11, 19, 697 N.E.2d 600 (1998); see Brown v. Cty. Commrs., 87 Ohio

App.3d 704, 716, 622 N.E.2d 1153 (4th Dist.1993) (defining trespass as “(1) an

unauthorized intentional act, and (2) entry upon land in the possession of another”).

       {¶23} R&R argues that the trial court erred in determining that a trespass

requires an intentional act. R&R asserts that landslides are trespasses and relies on a

case from this court that recognized that a landslide can constitute a trespass. See

Davis v. Allen, 1st Dist. Hamilton Nos. C-010165, C-010202 and C-010260, 2002

Ohio App. LEXIS 158 (Jan. 18, 2002). In Davis, this court determined that the

defendants’ failure to remedy a landslide problem constituted a continuing trespass.

However, one of the defendants in Davis had contributed to the landslides by

dumping fill dirt on the property. In contrast, the landslides here are a natural

occurrence.   We decline to write a new rule that landslides constitute a per se

trespass.

       {¶24} R&R also argues that the trial court erred by concluding that the

Defendants had no duty to remove their dirt and debris or to prevent future

landslides. In this regard, R&R’s argument is no different from the argument it

made in its second assignment of error with regard to its nuisance claim. See Price,

106 Wn.App. at 660, 24 P.3d 1098 (holding that plaintiffs’ trespass claim based upon

a failure to act was no different from their negligence claim).




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                      OHIO FIRST DISTRICT COURT OF APPEALS



         {¶25} Because R&R cannot show a duty exists under Ohio law, it cannot

succeed on a trespass theory of liability. We overrule R&R’s first assignment of

error.

                                           Conclusion

         {¶26} In conclusion, because the Defendants did not owe any duty to R&R

with respect to the landslide where the landslide occurred naturally, R&R cannot

succeed on its nuisance and trespass claims. Therefore, the trial court correctly

granted summary judgment to the Defendants on R&R’s claims for nuisance and

trespass. The judgment of the trial court is affirmed.

                                                                       Judgment affirmed.


DEWINE and MOCK, JJ., concur.



Please note:
         The court has recorded its own entry on the date of the release of this opinion.




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