[Cite as Eckert v. Univ. of Cincinnati Bd. of Trustees, 2011-Ohio-6864.]



                                                         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

CHARLES ECKERT, III,

        Plaintiff,                                          Case No. 2008-10951

        v.

UNIVERSITY OF CINCINNATI                                    Judge Clark B. Weaver Sr.
BOARD OF TRUSTEES, et al.,

        Defendants.



       ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT


        {¶1} On September 12, 2011, defendants filed a “motion to dismiss or motion for
summary judgment.” On September 13, 2011, the court issued an entry construing the
motion as one for summary judgment pursuant to Civ.R. 56(B), and setting it for a non-
oral hearing. Plaintiff filed a response to the motion on September 26, 2011. The
motion is now before the court for a non-oral hearing pursuant to 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
Case No. 2008-10951                         -2-                                     ENTRY

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶4} According to the amended complaint, plaintiff parked his automobile in a
parking garage owned by defendants on May 3, 2005, and “[a]t said time and place, as
a direct result of [defendants’] failure to maintain said garage, the wooden mechanical
arm of the parking garage [gate] came down and struck Plaintiff in the head.”
(Amended Complaint, ¶4.)
       {¶5} In their motion, defendants acknowledge that they own the parking garage,
but assert that they owed plaintiff no duty inasmuch as the premises were leased to a
third-party.
       {¶6} Liability in tort for injuries arising from the defective condition of property is
dependent upon occupation or control of the premises. Mitchell v. Cleveland Elec.
Illuminating Co. (1987), 30 Ohio St.3d 92, 94. That is, in order “to have a duty to keep
premises safe for others one must be in possession and control of the premises.”
Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130, 132, 1995-Ohio-203. “The element
of control is required as a predicate to liability because the possessor of the land is
thought to be in the best position to diminish dangers to invitees. Simpson, supra, at
133. Moreover, the control necessary as the basis for tort liability implies the power and
right to admit people to the premises and to exclude people from it, and involves a
substantial exercise of that right.” Albright v. Univ. of Toledo (Sept. 18, 2001), Franklin
App. No. 01AP-130.
       {¶7} In support of their motion, defendants submitted the affidavit of David F.
Schwallie, Assistant Senior Vice President and Director of Risk Management for the
University of Cincinnati, who avers that defendants leased the parking garage to the
Health Alliance of Greater Cincinnati at all times relevant. In his affidavit, Schwallie
authenticates an attached copy of the lease agreement, which provides, in part:
       {¶8} “Section 1. Leased Premises.
       {¶9} “(a) UC leases to The Alliance and The Alliance leases from UC * * * a
parking garage * * * known generally as the ‘Goodman Garage’ * * * together with all
other rights and easements appurtenant thereto (the ‘Leased Premises’).
       {¶10} “(b) Included within this Lease * * * is The Alliance’s Lease of all gate
equipment * * *. The Alliance shall have the right to replace any of the foregoing at The
Alliance’s sole expense, and any such equipment shall, upon termination of this Lease,
remain with the Leased Premises and become the property of UC.
       {¶11} “* * *
       {¶12} “Section 8. Maintenance.
       {¶13} “During the term of this Lease, The Alliance, at its sole expense, shall
maintain the Leased Premises in good condition and repair and shall make all repairs,
replacements, and renewals, whether foreseen or unforeseen, ordinary or extraordinary,
interior or exterior, necessary to put or maintain the Leased Premises in that state of
repair and condition. The Alliance’s obligations include, but are not limited to * * *
repairing * * * gate booths, machinery, gate arms, signage, and the like; * * * and,
otherwise operating the Leased Premises in the same manner as previously operated
by UC. * * *
       {¶14} “* * *
       {¶15} “Section 18. Quiet Enjoyment.
       {¶16} “UC covenants and agrees with The Alliance that The Alliance * * * shall
lawfully, peaceably and quietly hold, occupy and enjoy the Leased Premises without
any let, hindrance, ejectment or molestation by UC or by any person claiming by,
through, or under UC.” (Emphasis added.)
       {¶17} Plaintiff presented no evidence in response to defendants’ motion.
       {¶18} Upon review of the memoranda and supporting materials submitted by the
parties, the only reasonable conclusion to draw is that defendants were not in
possession and control of the premises upon which plaintiff was allegedly injured. The
lease confers upon the lessee the right to occupy, possess, and control the premises,
including “all gate equipment” located thereon, and the lease specifically provides that
Case No. 2008-10951                        -4-                                     ENTRY

the lessee is responsible for maintaining the “gate booths, machinery, [and] gate arms”
in “good condition and repair.”
        {¶19} Based upon the foregoing, the court finds that there are no genuine issues
of material fact and that defendants are entitled to judgment as a matter of law.
Accordingly, defendants’ motion for summary judgment is GRANTED and judgment is
rendered in favor of defendants. 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.




                                          _____________________________________
                                          CLARK B. WEAVER SR.
                                          Judge

cc:


Brian M. Kneafsey, Jr.                        John E. Mahin
Assistant Attorney General                    35 East Seventh Street, Suite 710
150 East Gay Street, 18th Floor               Cincinnati, Ohio 45202
Columbus, Ohio 43215-3130



Filed November 17, 2011
To S.C. reporter December 30, 2011
