[Cite as Profitt v. Tate Monroe Water Assn., Inc.,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

KRISTI J. PROFITT, et al., :

Plaintiffs-Appellants, : CASE NO. CA2012-10-072

: OPINION - vs - 6/3/2013 :

TATE MONROE WATER : ASSOCIATION, INC., et al., : Defendants/Appellees. :

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2010 CVH 01437

Carl W. Zugelter, 1285 West Ohio Pike, Amelia, Ohio 45102, for plaintiffs-appellants

Schroeder, Maundrell, Barbiere & Powers, Jay D. Patton, 5300 Socialville-Foster Road, Suite 200, Mason, Ohio 45040, for defendants-appellees, Tate Monroe Water Association, Inc. and Barbara Adamson

Thomas R. Schuck, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202, for defendants- appellees, Tate Monroe Water Association, Inc. and Barbara Adamson

Robert J. Byrne, 150 East Gay Street, 21st Floor, Columbus, Ohio 43215, for defendant- appellee, Ohio Department of Job & Family Services

M. POWELL, J.

{¶ 1} Plaintiffs-appellants, Kristi J. Profitt and Michael Profitt, Sr., appeal a decision of Clermont CA2012-10-072

the Clermont County Court of Common Pleas, granting summary judgment on their

negligence claim in favor of defendants-appellees, Tate Monroe Water Association, Inc.

(Tate Monroe) and Barbara Adamson.1

{¶ 2} On December 2, 2008, at approximately 6:30 a.m., Tate Monroe, a private

water company, was notified that there was a break in one of its water main lines and that

water was running out onto State Route (S.R.) 756 in Clermont County, Ohio. At

approximately 7:50 a.m. that morning, Kristi was traveling along S.R. 756 on her way to work.

The weather conditions were dry and cold. As she was driving on S.R. 756, she saw a Tate

Monroe truck on the side of the road with its yellow lights flashing. Kristi started driving up a

hill, when she "hit a sheet of ice" and lost control of her vehicle causing her vehicle to leave

the roadway and flip. Kristi suffered injuries as a result of this accident.

{¶ 3} Kristi and her husband, Michael, filed a complaint against Tate Monroe and

Barbara Adamson asserting claims of negligence and loss of consortium.2 Kristi alleged she

sustained serious and permanent physical injuries, incurred medical expenses, and lost

wages as a result of Tate Monroe and Adamson's negligence in maintaining and repairing its

water line on December 2, 2008. Tate Monroe and Adamson answered and later filed a

motion for summary judgment which was granted by the trial court. Appellants now appeal

the trial court's decision. As this is an appeal from a summary judgment, our review is de

novo, and we construe the following facts in the light most favorable to appellants, as the

nonmoving party. Grafton v. Ohio Edison Co.,

(1996); Civ.R. 56(C).

1. Appellants also named as defendants, John Does 1, 2, 3, and the Ohio Department of Jobs and Family Services (ODJFS). The trial court's decision to grant summary judgment to Tate Monroe and Adamson also resulted in a final judgment being "entered against Plaintiffs on their claims against [ODJFS]." These defendants are not participating in this appeal.

2. Appellants originally filed suit on July 14, 2010, however this complaint was amended on November 8, 2010, to add Adamson as a defendant. -2- Clermont CA2012-10-072

{¶ 4} The record indicates that Kristi was traveling westbound on S.R. 756 towards

Felicity, Ohio on the morning of the accident. The relevant portion of S.R. 756 begins where

Lenroot Road meets S.R. 756. If traveling westbound on S.R. 756, Lenroot Road is on the

north side of S.R. 756, and continuing west on S.R. 756, Glass Road is to the south side of

S.R. 756. Shortly after Glass Road there is a private driveway which belongs to Chester

Neal. Continuing west, about 200 feet after Neal's driveway, there is another private

driveway and just west of this driveway there is a flush hydrant which belongs to Tate

Monroe.3 The second private driveway and the flush hydrant are at the top of a hill.

{¶ 5} Tate Monroe provides water to residents in Clermont County, Ohio. On

December 2, 2008, Neal, a customer of Tate Monroe, contacted the Clermont County

Communications Center at about 6:30 a.m. to report water "squirting out" of the ground

around his driveway and out onto S.R. 756. The Communications Center notified Tate

Monroe of this leak. Barbara Adamson, as the "duty person" for Tate Monroe, took the call.

Adamson then called Neal, who informed her a water main had broken and water was

running onto the highway. Neal testified that water from the line was spraying on the

roadway, crossing both lanes of S.R. 756 and was flowing "pretty far down" the hillside to the

east of his driveway. Neal explained that the area near his driveway is "all hillside."

{¶ 6} Adamson reported the water main break and that water was running onto the

roadway to her supervisor, Jeff Smith, and informed him that she was proceeding to Neal's

residence. Upon arriving, she too observed water "running down across the bottom of the

driveway onto the highway." Adamson first went to the meter and determined the leak was

3. Several witnesses refer to this hydrant as a "fire hydrant," however, it is clear that this hydrant was in fact a flush hydrant. Any references to fire hydrant within witnesses' testimony are understood to be referring to the flush hydrant.

-3- Clermont CA2012-10-072

actually in Tate Monroe's service line, rather than the main line.4 As the leak was in the

service line, Tate Monroe was responsible for repairing the leak. Adamson contacted Smith

again, and reported her observations that the water main needed to be shut off and

requested assistance. She also suggested contacting the Ohio Department of

Transportation (ODOT) to have salt spread on the road. After receiving Adamson's call,

Smith contacted Tate Monroe's contractor, Howerton Construction, to request that they report

to the scene and repair the service line break. While waiting for assistance, Adamson used

the laptop in her truck to look up the locations of the gate valves between the leak. The gate

valves control the flow of water through the water main, therefore shutting off these valves

would isolate the break. At this time, Adamson's truck was in Neal's driveway. According to

Adamson, while at the edge of the driveway she saw cars approaching the area. She left her

truck and motioned to a driver to slow down. The driver complied, yet the vehicle still

"fishtailed" when it encountered the water. Adamson witnessed a second vehicle "fishtail"

when it encountered the water, and a third vehicle slid and completed a "U-turn in the middle

of the road."

{¶ 7} Two of these motorists were David W. Snider and Elizabeth Anderkin. Both

Snider and Anderkin were traveling westbound on S.R. 756 sometime between 7:10 a.m. and

7:45 a.m. Both testified that water was coming out of a hydrant and flowing down towards

Neal's driveway. Snider testified that at approximately 7:10 a.m. he saw a lady "with a fire

hydrant open and water was coming across the road tremendously." He observed water

coming straight out of the hydrant and flooding "across" the highway, and then "down over

the hill" towards Neal's driveway. According to Snider, there was water and ice on the

roadway and it came from the hydrant. Anderkin testified that as she started going uphill, just

4. A service line is a one-inch plastic line that carries water from a main line to a water meter on a customer's property and then to the customer's residence. -4- Clermont CA2012-10-072

past Lenroot Road, she slowed down because the road appeared "black" or "shiny."

Between Glass Road and Neal's driveway, Anderkin's car "spun out" and she hit the

embankment on the opposite side of the road right before Neal's driveway. After determining

that her passengers were not injured, she continued up the hill. Once she reached the top of

the hill, she noticed "water [coming] out of the fire hydrant," and that it was "going down [the]

hill and freezing." She testified that the only area she observed to be wet or icy was "from

above [Neal's] driveway, down to Glass Road. It's a hill so it was running down." Although

both Snider and Anderkin testified that the flush hydrant was open and there was water on

the roadway which came from this hydrant, Adamson denies ever opening a flush hydrant

that day.

{¶ 8} After observing these three cars slide, Adamson proceeded down the hill to the

first gate valves located near Lenroot Road. Adamson parked her truck at the bottom of the

hill next to a guardrail. She then climbed over the guardrail, went over an embankment to

turn off the gate valves. Adamson was unable to close off all of the valves. She returned to

her truck to retrieve another wrench to assist in closing the valves. While at her truck,

Adamson noticed more vehicles were approaching the area of the leaking water. Adamson

stepped into the light of her headlights and again motioned with her hands for the drivers to

"break." One of these vehicles was a red jeep driven by Kristi. Adamson testified that the

jeep did not stop or look in her direction.

{¶ 9} Kristi, however, does not agree that Adamson or anyone else motioned for her

to slow down. Kristi testified that she did not see anyone signal or attempt to warn her of any

dangerous condition on the road ahead. Rather, she saw two people inside of a Tate

Monroe truck and simply thought they were reading meters. As she was driving up the hill

past Lenroot Road, she "hit a sheet of ice" and lost control of her vehicle causing her vehicle

to leave the roadway and flip. Neal did not witness the accident, but testified that Kristi's

-5- Clermont CA2012-10-072

vehicle went off the roadway and landed on the north side of the road just west of his

driveway. Snider, who later drove by the accident scene, this time going eastbound on S.R.

756, observed Kristi's vehicle flipped and off the road. Snider estimated the vehicle "came to

rest" about 200 feet from Neal's driveway.

{¶ 10} On appeal from the decision of the trial court granting summary judgment for

Tate Monroe and Adamson, appellants raise the following assignment of error:

{¶ 11} Assignment of Error No. 1:

{¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS IN

GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT.

{¶ 13} In their sole assignment of error, appellants argue the trial court erred in

granting summary judgment because (1) a private water company owes a duty of care in the

maintenance and operation of pipelines as well as a duty to protect persons who travel on

the highways adjacent to the pipelines, and (2) genuine issues of material fact remained as

to "whether Tate Monroe properly inspected and maintained its water lines, whether

Adamson negligently opened the flush hydrant, discharging water into the roadway, whether

Adamson's response at the scene of the leak and collision was negligent, and whether Tate

Monroe's response to the notice of a water main leak was negligent."

{¶ 14} As this court's review of a trial court's ruling on a summary judgment motion is

de novo, we utilize the same standard in our review that the trial court uses in its evaluation

of the motion. Under Civ.R. 56, summary judgment is appropriate when "(1) there is no

genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law,

and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to

the nonmoving party, said party being entitled to have the evidence construed most strongly

in his favor." Simmons v. Yingling, 12th Dist. No. CA2010-11-117,

, ¶ 19,

quoting Zivich v. Mentor Soccer Club, Inc.,

(1998). The moving -6- Clermont CA2012-10-072

party has the burden of demonstrating that there is no genuine issue of material fact.

McQueen v. Kings Island, 12th Dist. No. CA2011-11-117,

, ¶ 6, citing

Harless v. Willis Day Warehousing Co.,

(1978).

{¶ 15} The nonmoving party must then rebut the moving party's evidence; it "may not

rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise

provided in Civ.R. 56, must set forth specific facts showing the existence of a genuine triable

issue." Mootispaw v. Eckstein,

(1996). A disputed fact is "material" if

it affects the outcome of the litigation, and it is "genuine" if it is supported by substantial

evidence that exceeds the allegations in the complaint. Liegel v. Bainum, 12th Dist. No.

CA2011-06-049,

, ¶ 10.

{¶ 16} In order to survive a properly supported motion for summary judgment on a

claim of negligence, the plaintiff must demonstrate the existence of a duty, a breach of that

duty, and an injury resulting proximately from the breach. Zieger v. Burchwell, 12th Dist. No.

CA2009-11-077,

, ¶ 13; Brown-Spurgeon v. Paul Davis Sys. of Tri-State

Area, Inc., 12th Dist. No. CA2012-09-069,

. In the present case,

appellants allege Tate Monroe and Adamson owed them a variety of duties, including a duty

to inspect and maintain its water lines and a duty of ordinary care.

A. Duty to Inspect and Maintain

{¶ 17} Initially, appellants argued Tate Monroe had a duty to inspect and maintain its

water lines. However, during oral argument before this Court, appellants conceded Tate

Monroe did not have a duty to maintain and inspect the water lines. We agree that Tate

Monroe did not owe a duty to maintain and inspect its water lines. See Republic Light and

Furniture Co. v. City of Cincinnati,

(1st Dist. 1954) (finding that requiring the

city to conduct random inspections of the waterworks system where there is no indication of a

problem would require the city to dig up the streets and such method would render the cost of -7- Clermont CA2012-10-072

supplying water "prohibitive").

B. Duty of Ordinary Care

{¶ 18} Appellants assert Tate Monroe and Adamson breached their duty of ordinary

care by negligently or deliberately allowing water from the service line to run onto the

roadway and by negligently or recklessly opening a flush hydrant located along S.R. 756,

causing water to flow onto the roadway.

{¶ 19} The threshold question of the existence of a duty is a question of law. Barnett

v. Beazer Homes Investments, L.L.C.,

,

(12th

Dist.). Duty refers to the relationship between a plaintiff and a defendant from which an

obligation arises on the part of the defendant to exercise due care toward the plaintiff.

Howard v. Kirkpartrick, 12th Dist. No. CA2008-11-040,

, ¶ 11, citing Wallace

v. Ohio Dept. of Commerce, Div. of Fire Marshal,

,

, ¶ 23.

A duty may be established by common law, legislative enactment, or the specific

circumstances of a given case. Chambers v. St. Mary's School,

(1998). The existence of a duty largely depends on the foreseeability of the injury.

Commerce & Industry Ins. Co. v. City of Toledo,

(1989). It is not

necessary that the defendant should have anticipated the specific injury. Re v. Kessinger,

12th Dist. No. CA2007-02-044,

. Rather, "the test for foreseeability is

whether a reasonably prudent person, under the same or similar circumstances as the

defendant, should have anticipated that injury to the plaintiff or to those in like situations is

the probable result of the performance or nonperformance of an act." Commerce & Industry

Ins. Co. at 98. Thus, whether Adamson or Tate Monroe owed appellants a duty turns on

whether a reasonably prudent person would have anticipated that Kristi or any other motorist

traveling along S.R. 756 would be injured by way of the water from the leak or water from the

flush hydrant remaining and freezing on the roadway. -8- Clermont CA2012-10-072

1. Leak from Service Line

{¶ 20} Under the facts and circumstances of this case, a duty arose for Tate Monroe

and Adamson to act as a reasonably prudent person would in responding and repairing the

leak and treating or removing the water on the roadway. The evidence submitted by the

parties demonstrates that at 6:30 a.m. Tate Monroe was notified of a "water main" break and

that water was "running onto the highway." The reported "water main" break was actually a

service line break, and according to Adamson, Tate Monroe had the responsibility to repair

the line as Tate Monroe owned the line. Once Adamson reached the scene of the leak, she

observed it was cold enough for the water on the roadway to freeze. While at the scene,

Adamson observed at least three cars sliding or losing control as the cars came in contact

with the water on the roadway. Recognizing that the water on the roadway represented an

"emergency situation," she became concerned with people hitting the "ice or hitting that water

and sliding out." Adamson began motioning to motorists with her hands to slow down.

{¶ 21} Given the fact that Tate Monroe and Adamson, acting as Tate Monroe's agent,

were aware that water was leaking from a pipe owned by Tate Monroe onto a public

roadway, in subfreezing weather conditions, and that cars were having difficulty traveling over

the roadway where the water and ice accumulated, a reasonably prudent person would

anticipate that motorists, such as Kristi, traveling along S.R. 756 would encounter water or

ice on the roadway, causing them to lose control of their vehicles. Accordingly, we find a

duty arose in this case, under these facts and circumstances, for Tate Monroe and Adamson

to exercise ordinary care in its response to the leak and its treatment of the water in the

roadway.

{¶ 22} Although Tate Monroe recognized that the water on the road from the service

line created a hazardous condition, it argues it did not owe a duty to those traveling on this

road because it did not create this hazardous condition. To support this contention, Tate -9- Clermont CA2012-10-072

Monroe points to the testimony of James Gregory Stanley, the general manager of Tate

Monroe. Stanley testified that it was his "understanding that the tree roots caused the leak."

Tate Monroe further argued pursuant to its written agreement with Neal, that it was Neal's

responsibility to keep the meter area clear of foliage. We find no merit to this argument.

Although Tate Monroe's contractual arrangement with Neal may allocate duties and

responsibilities between them, it has no bearing upon Tate Monroe's duties and

responsibilities vis-à-vis those not party to the contractual agreement. See Beaney v.

Carlson,

, 416 (1974) (finding that a land owner may not contract away a

common law duty by agreement, lease, or any other device).

{¶ 23} Once a common-law duty is found to exist, the fulfillment of that duty is not

defined by or limited to a particular course of action. Rather, the defendant is required to

exercise that degree of care which an ordinarily careful and prudent person would exercise

under the same or similar circumstances. Commerce & Industry Ins. Co. at 98. Whether a

defendant discharged his duty of care is normally a question for the jury.

{¶ 24} When Tate Monroe was notified of the break in the water line at 6:30 a.m., it

was also notified that water from the line was running onto the roadway. There was

testimony that it would take up to three people to adequately warn motorists traveling along

S.R. 756 of the icy conditions. Smith admitted that it would take one person to turn off the

valves to isolate the leak and one person on each side of the leak to warn motorists.

However, Tate Monroe still only dispatched one employee to the scene. Dave Conn, the

distribution supervisor for Tate Monroe, and Adamson testified their trucks were not equipped

with warning devices such as signs or cones. Conn further testified that the contractor,

Howerton Construction, was responsible for putting up signs or other warning devices in the

roadway. Yet, the record indicates Howerton Construction was not contacted until after

Adamson arrived at Neal's residence. It is up to a trier of fact to determine whether it was - 10 - Clermont CA2012-10-072

reasonable for Tate Monroe to dispatch one employee when it knew or should have known

its employee did not have the proper equipment to warn motorists of the dangerous condition

on the roadway. Moreover, Tate Monroe may not delegate the common law duty of ordinary

care to its contractor to insulate itself from liability. See Pusey v. Bator,

(2002) (finding an employer may delegate work to an independent contractor, but may

not delegate the duty).

{¶ 25} As to Adamson, we further find reasonable minds could differ in deciding

whether Adamson's actions in responding to the leak and the methods by which she warned

passing motorists were reasonable under the circumstances. Although Adamson engaged

her yellow lights once she was in Neal's driveway and again once she was on the side of the

road, there is a question of fact as to whether these lights were visible to motorists. Neal

testified he did not believe the truck was visible to the passing motorists when it was in his

driveway. Moreover, there is a question as to whether the use of the yellow lights and the

hand gestures by Adamson, without more, was sufficient under the circumstances. Indeed,

Kristi, herself testified that she saw the flashing yellow lights but believed Tate Monroe was

simply reading meters. Also, since there was testimony that Adamson was concerned about

motorists hitting the "ice or hitting that water and sliding out," it is for a trier of fact to

determine whether it was reasonable for Adamson to discontinue warning motorists with

hand gestures and leave the roadway to shut off the gate valves.

{¶ 26} The foregoing leaves unresolved genuine issues of material fact with respect to

whether appellees discharged their duty of ordinary care. Once these issues of fact are

resolved, reasonable minds may differ in deciding whether Tate Monroe and Adamson acted

reasonably under the circumstances in responding to the leak and the water on the roadway.

{¶ 27} In reaching this decision we note "[t]he law does not require what is

unreasonable, nor does it condemn an act or omission as negligent which can be done or - 11 - Clermont CA2012-10-072

prevented only by extraordinary exertion or by the expenditure of extraordinary sums of

money incident to the removal of an unusual accumulation of snow and ice." Mills v. City of

Springfield,

,

(2d Dist. 1956). However, it is for

the jury to determine whether Tate Monroe and Adamson did enough, using an "ordinary

exertion" of effort to respond to the water leak, including warning motorists of the danger

created by the water and ice accumulation on the roadway.

2. Flush Hydrant

{¶ 28} There is also evidence that a duty could have arisen due to the opening of a

flush hydrant near the scene where Kristi's vehicle left the road. However, a genuine issue of

material fact exists as to whether the flush hydrant was ever opened, and if it was, whether it

was opened by Adamson or some other agent of Tate Monroe. Tate Monroe asserts that

because Adamson testified that she did not open the flush hydrant prior to the accident and

no one contradicted this testimony then it is uncontroverted that she did not open the

hydrant. We disagree.

{¶ 29} Appellants point to the testimony of Snider and Anderkin, two of the motorists

who traveled along S.R. 756 a few minutes prior to Kristi's accident to support their

contention the hydrant was opened. Both Snider and Anderkin testified to driving past the

flush hydrant and observing water coming out of the flush hydrant, onto the roadway, and

down the hill towards Neal's driveway. Furthermore, Michael Profitt testified he saw

Adamson open the flush hydrant, albeit after the accident. Adamson conversely stated that

she never opened the flush hydrant that morning. Contrary to appellees' assertions,

Adamson's testimony that she did not open the flush hydrant is not uncontroverted when

considered in light of the testimony of Snider, Anderkin, and Michael. Rather, the

contradiction in this testimony not only raises a genuine issue of material fact regarding

whether and when the hydrant was opened, but it also raises an issue as to Adamson's - 12 - Clermont CA2012-10-072

credibility. Summary judgment is inappropriate where the resolution of a factual dispute will

depend, at least in part, upon the credibility of the witnesses. Layer v. Kings Island Co., 12th

Dist. No. CA2002-10-106,

, ¶ 14, citing Turner v. Turner,

(1993).

{¶ 30} Moreover, there was also testimony that only Tate Monroe had the authority to

open the flush hydrant. The record also indicates that a specific wrench is normally used to

open these hydrants, and Adamson had one of these wrenches with her that day.

Additionally, employees of Tate Monroe and Howerton Construction testified that a flush

hydrant could be opened to relieve pressure from the pipe while the line is repaired.

Adamson herself admitted this and stated she had opened flush hydrants in the past. In

viewing these facts in a light most favorable to appellants, as we are required to do, we find

the evidence and the inferences from such evidence is sufficient to create a question of fact

as to whether Adamson opened the flush hydrant causing additional water to flow onto the

roadway.

{¶ 31} Furthermore, it is undisputed that at approximately 7:50 a.m., Kristi, while

driving westbound on S.R. 756, encountered ice or "liquid on the road" and lost control of her

vehicle causing the vehicle to leave the roadway and flip. However, the source of this water

is disputed. Tate Monroe asserts the water was from the leak in the service line.

Conversely, appellants assert the water on the roadway which caused Kristi to lose control of

her vehicle could have come from the leak in the service line, the flush hydrant uphill from the

collision scene, or a combination of both. There is a genuine issue of material fact as to the

source of the water which led to Kristi's accident.

{¶ 32} The record demonstrates that Kristi's vehicle left the road near Neal's driveway,

flipped and came to rest approximately 200 feet west of the driveway. The water from the

leak also began west of the driveway and flowed downhill past Glass Road. It is certainly - 13 - Clermont CA2012-10-072

reasonable for a trier of fact to determine that it was water from the leak that Kristi

encountered which caused her to lose control of her vehicle. However, it is equally plausible

for a trier of fact to determine that the flush hydrant discharged water, flowing downhill past

Neal's driveway, which Kristi's vehicle encountered causing her to lose control of her vehicle.

From the foregoing evidence, reasonable minds could differ in deciding whether Kristi lost

control of her vehicle due to the water on the roadway from the leak in the service line, or

water discharged from the flush hydrant, or a combination of both.

{¶ 33} While the question of the existence of a duty is a question of law, the resolution

of that question must await the resolution of the factual disputes concerning witness

credibility, whether the flush hydrant was opened, and whether the water from the flush

hydrant contributed to Kristi's accident. Summary judgment is not the vehicle for weighing

the evidence or determining witness credibility. Only a trial on the merits can resolve such

disputes. Accordingly, summary judgment was inappropriate in this case.

{¶ 34} Based on the foregoing, we sustain appellants' sole assignment of error,

reverse the judgment of the trial court, and remand the cause for further proceedings in

accordance with this decision.

{¶ 35} Judgment reversed and remanded.

RINGLAND, P.J., and PIPER, J., concur.

- 14 -