[Cite as Matteucci v. Cleveland State Univ., 2010-Ohio-2653.]

                                                         Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us




VINCENT MATTEUCCI

       Plaintiff

       v.

CLEVELAND STATE UNIVERSITY

       Defendant
       Case No. 2008-08906

Judge Alan C. Travis

DECISION




        {¶ 1} On April 15, 2010, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(C). On May 7, 2010, plaintiff filed a response. The case is now
before the court for a non-oral hearing. L.C.C.R. 4.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, 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. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that 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, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
      {¶ 4} As an initial matter, on May 7, 2010, plaintiff filed a combined motion for
sanctions and motion to strike defendant’s motion. Plaintiff asserts that defendant has
filed its second motion for summary judgment and supporting affidavits “in bad faith or
solely for the purpose of delay.” Specifically, plaintiff argues that defendant has raised
the same arguments that were rejected in the court’s November 13, 2009 decision. The
trial in this case was continued, however, as a result of plaintiff’s December 9, 2009
motion. When the original trial order was amended the dispositive motion deadline was
extended accordingly. Defendant timely filed its second motion for summary judgment.
Accordingly, plaintiff’s motion is DENIED.
      {¶ 5} On July 1, 2005, plaintiff was injured while he was working in an elevator
that is located in Fenn Tower on defendant’s campus. It is undisputed that the building
had been leased by defendant to a developer and that defendant was not in possession
or control of the building at the time of the accident. Defendant asserts that it owed no
duty to plaintiff inasmuch as it had no control over the property upon which the injury
occurred.
      {¶ 6} Generally, liability in tort is dependant upon occupation or control of the
premises. Mitchell v. Cleveland Electric Illuminating Co.(1987), 30 Ohio St.3d 92, 94.
“‘The control necessary as the basis for tort liability implies the power and the right to
admit people to the premises and to exclude people from it, and involves a substantial
exercise of that right and power.’” Id., quoting Wills v. Frank Hoover Supply (1986), 26
Ohio St.3d 186, 188. Furthermore, “[a]s to elevators, if a lessee has the sole control
and management of an elevator in a leased building, he and not the lessor must usually
answer to one who is injured because of defects in the elevator or by reason of
surrounding dangers.” Kauffman v. First-Central Trust Co. (1949), 151 Ohio St. 298,
303. However, an owner of leased property may be responsible for the existence of a
defective elevator only when the conditions complained of existed at the time of the
lease. Id.
      {¶ 7} Defendant’s motion is accompanied by an affidavit of George E. Hamm,
Jr., Associate General Counsel for defendant, wherein he states as follows:
       {¶ 8} “2.                         The elevator, which is the subject of Plaintiff’s
complaint, is located in a building that was leased to Euclid Avenue Housing
Corporation (Euclid Avenue), a developer of student housing facilities. Upon knowledge
and belief, Euclid Avenue in turn subleased the building to American Campus
Communities, Inc. (ACC). ACC hired contractors to renovate the building. Prior to July
1, 2005, possession and control of this building had been transferred from CSU to
Euclid Avenue, and from Euclid Avenue to ACC. As part of this lease arrangement,
Euclid Avenue was to indemnify CSU, and upon knowledge and belief ACC was to
indemnify CSU and Euclid Avenue as to any injuries or damages occurring at the
property. A true and accurate copy of the relevant portion of the lease agreement
between CSU and Euclid Avenue is attached hereto as Exhibit 1.
       {¶ 9} “3.                         Prior to leasing the building known as Fenn
Tower to ACC, it had been closed and was not in use. CSU had quarantined the
building to prevent access to it.
       {¶ 10} “4.                        Because the building (not just the elevator)
was quarantined for a period of time, CSU canceled its contract with an elevator
servicing company.
       {¶ 11} “5.                        Prior to ACC’s taking possession of the
building, CSU provided notice that none of the elevators had been used for some time
and that an inspection of the elevators needed to be done prior to the elevators being
used. Although CSU was unaware of any problems with the elevators, inspection was
required since they had been inactive for a period of time.
       {¶ 12} “6.                        CSU did not have possession or control of
Fenn Tower at the time of Plaintiff’s injury, and ACC and its contractor had sole
responsibility for the maintenance and control of the building and its elevators.”
(Defendant’s Exhibit A.)
       {¶ 13} The undisputed evidence shows that defendant had transferred control of
the leased premises to Euclid Avenue and that the property was subsequently
subleased to ACC. Turner Construction Company (Turner), the contractor ACC had
hired to complete the renovations, was in possession and control of the property when
the injury occurred. Defendant presented the affidavit of W. Randy Painter, a project
executive for Turner, wherein he states as follows:
       {¶ 14} “3.                         Turner entered into two separate contracts with
American Campus Communities to complete the Fenn Tower Renovation Project.
       {¶ 15} “4.                         The first contract was executed in November of
2004, with work beginning immediately thereafter. The second contract was executed
in March of 2005 with work beginning immediately thereafter.
       {¶ 16} “5.                         Under the terms of the first contract, Turner
was required to have the elevator inspected prior to use and make any necessary
repairs. Accordingly, Turner contracted with Schindler’s Elevator Corporation to have
the elevator inspected for any safety hazards.
       {¶ 17} “6.                         On December 15, 2004, Schindler inspected
the elevator at issue in this case and found that it met all necessary safety
requirements.” (Defendant’s Exhibit B.)
       {¶ 18} Painter further stated in his affidavit that Turner’s second contract with
ACC provided for the full renovation of the building, including new elevators; however,
the elevator where the incident occurred had remained in service during the project.
According to Painter, Turner contracted with an elevator service company to maintain
the elevator during construction. Painter averred that on July 1, 2005, Turner was
directing the work and believed that the elevator at issue “was in sound working
condition.”
       {¶ 19} Plaintiff asserts that Hamm’s statement that defendant “quarantined” the
building should be construed as an admission that the elevator was in disrepair prior to
the lease.    However, Hamm specifically stated that defendant was unaware of any
problem with the elevator prior to executing the lease and no evidence has been
presented to rebut Hamm’s testimony.        Furthermore, the evidence shows that the
elevator was inspected on December 15, 2004, after Turner took possession of the
building, and the inspection confirmed that the elevator passed “all testing requirements
prior to being returned to service.” (Defendant’s Exhibit B.)
       {¶ 20} The evidence submitted by defendant shows that defendant had
relinquished possession and control of the building to Euclid Avenue.          The only
reasonable inference which follows from these undisputed facts is that once the lease
was executed, defendant had no responsibility for inspecting or making repairs on the
elevator. Such a finding is ordinarily sufficient to support a summary judgment in favor
of the building owner. Hendrix v. Eighth and Walnut Corp. (1982), 1 Ohio St.3d 205,
207. Furthermore, Euclid Avenue agreed both to indemnify defendant for damages
resulting from injuries due to the use of the premises by the lessee, and to require all
“others providing services or equipment to or for the premises” to indemnify defendant.
(Defendant’s Exhibit B.)
      {¶ 21} Upon review of the evidence, oral argument of counsel, and the
memoranda filed by the parties, the court concludes that there are no genuine issues of
material fact and that defendant is entitled to judgment as a matter of law. Accordingly,
defendant’s motion for summary judgment shall be granted.




                                             Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us




VINCENT MATTEUCCI

      Plaintiff

      v.

CLEVELAND STATE UNIVERSITY

      Defendant
      Case No. 2008-08906

Judge Alan C. Travis

JUDGMENT ENTRY
          A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.               For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.




                                               _____________________________________
                                               ALAN C. TRAVIS
                                               Judge

cc:


Kristin S. Boggs                                   Michael J. Feldman
Velda K. Hofacker                                  4230 State Route 306, Suite 240
Assistant Attorneys General                        Willoughby, Ohio 44094
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

AMR/cmd
Filed May 26, 2010
To S.C. reporter June 9, 2010
