[Cite as Mid-Century Ins. Co. v. Stites,

.]

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

MID-CENTURY INSURANCE : APPEAL NO. C-200421 COMPANY, AS SUBROGEE OF TRIAL NO. A-1704151 GENERAL WESTERN HIGHLAND : COMPANY, O P I N I O N. Plaintiff-Appellant, :

vs. :

NICHOLAS STITES, :

Defendant-Appellee. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 29, 2021

Metz, Gilmore, & Vaclavek, LLC, Carl E. Metz II, Wolnitzek & Rowekamp PLLC and Leonard G. Rowekamp, for Plaintiff-Appellant,

Patsfall, Yeager, & Pflum and Stephen M. Yeager, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} This case arises from a fire that occurred at an apartment complex on

August 22, 2015. Plaintiff-appellant, Mid-Century Insurance Company, as subrogee

of General Western Highland Company (“MCI”), brings this appeal to challenge the

trial court’s grant of summary judgment in favor of defendant-appellee Nicholas

Stites. For the following reasons, we affirm the judgment of the trial court.

Procedural History

{¶2} On August 7, 2017, MCI brought suit against Stites for negligence.

Stites subsequently moved for summary judgment on the claim, attaching his own

affidavit to the motion. The trial court granted summary judgment in favor of Stites

on October 19, 2018, after MCI failed to file a response. On November 28, 2018, MCI

filed a motion to vacate the court’s judgment and requested to file a response in

opposition to summary judgment instanter. The trial court granted the motion and

allowed leave for MCI to file its response. The response included a deposition of

Stites and a “Hamilton County Fire Investigation Unit Incident Report.” Stites then

filed a reply in support of his motion for summary judgment, which included an

affidavit of Steven Buchner and a “Woodlawn Police Division Criminal Investigations

Section Investigative Summary.”

{¶3} On November 10, 2020, the trial court granted summary judgment in

favor of Stites. In relevant part, the trial court’s entry stated:

This matter is before the court on Defendant, Nicholas Stites’

Motion for Summary Judgment. The Court, having reviewed

Defendant’s Motion and the memoranda in support and in opposition,

finds the Motion for Summary Judgment is well taken and hereby

GRANTS the same. For the reasons stated in Defendant’s Motion and

2 OHIO FIRST DISTRICT COURT OF APPEALS

supporting memoranda, the Court finds that there are no genuine

issues of material fact. Plaintiff’s Complaint is hereby DISMISSED

WITH PREJUDICE.

Factual Background

Affidavit of Nicholas Stites

{¶4} Stites was an invited guest of the tenant of the apartment unit where

the fire is alleged to have started on August 22, 2015. He was drinking a beer and

smoking a cigarette, along with three others, on the balcony of the apartment. He

extinguished and disposed of his cigarette butt in his empty beer bottle. The three

others extinguished and disposed of their cigarette butts in the hollow leg of an

overturned, plastic chair. When he left to return to his own residence, there was no

fire on the apartment’s balcony or anywhere else. He did not learn of the fire until

several hours later.

Deposition of Nicholas Stites

{¶5} On the day of the fire, Stites met up with four friends around noon at

the Century Inn Bar and Grill. They had lunch, drank one or two beers, smoked

cigarettes, and played cornhole. They disposed of the cigarettes in the available

ashtrays. At the time of his deposition, he did not remember what they had for

lunch, what kind of beer they drank, exactly how many beers they drank, whether he

paid with cash or with a credit card, or how long they were there.

{¶6} He left the bar with two of his friends, Spence and Buchner, because

Spence had an obligation to pick something up at a store and Spence was the one

who drove Stites to the bar. The other two friends, Hoctor and Shidler, rode

separately. Before going to the store, they all met at Hoctor’s apartment because

Hoctor needed to change clothes and do a load of laundry. Hoctor’s apartment was

3 OHIO FIRST DISTRICT COURT OF APPEALS

only a one-to-two-minute drive from the bar. At the apartment, they watched a

tennis tournament while going back and forth between inside the apartment and out

on the balcony. Stites had one beer while he was there. He did not remember what

kind of beer it was or where he got it from but did remember it was in a bottle. They

all agreed to move to Stites’s house to play cards since they had to leave to go to the

store and Stites’s house was about five minutes from the store and closer to where

most of them lived.

{¶7} The balcony was approximately five feet by ten feet in size. It could

comfortably fit around four people at one time. There was a stack of plastic chairs

and a small table on the balcony. The balcony also had leaves piled in the corners

and a couple of old pizza boxes were out there. Hoctor had a rule that they had to

smoke outside. Stites smoked one cigarette while he was there. Hoctor, Buchner,

and Shidler also smoked that day. Spence did not smoke cigarettes. Stites could not

recall how many cigarettes the others smoked that day. He also could not recall if

there was an ashtray on the balcony. He did remember seeing a small pile of

cigarette butts—probably 15 to 25—on the plastic chairs. Once Stites finished

drinking his beer, he instantly put his cigarette butt in the bottle and left the bottle

sitting on the table on the balcony. None of the friends ever discussed how to

dispose of their cigarettes while at Hoctor’s apartment. Prior to the day of the fire, if

Hoctor did not have an ashtray for them to put the cigarettes in, they had to pile the

cigarettes on the chair.

{¶8} Stites left the apartment with Buchner and Spence to go to the store.

The others were waiting at Stites’s house when they got back from the store. They

“hung out” at Stites’s house until around midnight. Stites did not learn of the fire

until the next morning. He was ultimately contacted by an investigator shortly

4 OHIO FIRST DISTRICT COURT OF APPEALS

thereafter. Stites read in the report provided by the investigators that the fire was

started by a cigarette butt.

Affidavit of Steven Buchner

{¶9} Steven Buchner was an invited guest of the tenant of the apartment

unit where the fire is alleged to have started on August 22, 2015. He was present

with Stites, along with two others, on the balcony of the apartment. He recalls seeing

Stites dispose of his cigarette butt into a beer bottle. He left the apartment to go to

Stites’s residence for the rest of the evening. When he left the apartment, there was

no fire on the apartment’s balcony or anywhere else. He did not learn of the fire until

several house later.

Law and Analysis

Standard of Review

{¶10} MCI raises a sole assignment of error, arguing that the trial court erred

in granting summary judgment by failing to view the facts in a light most favorable to

MCI. We review the grant of summary judgment de novo. Heiert v. Crossroads

Community Church, Inc., 1st Dist. Hamilton Nos. C-200244 and C-200391, 2021-

Ohio-1649, ¶ 37, citing Grafton v. Ohio Edison Co.,

,

(1996). “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) the evidence, when viewed in favor of the nonmoving party, permits only one

reasonable conclusion and that conclusion is adverse to the nonmoving party.”

citing Evans v. Thrasher, 1st Dist. Hamilton No. C-120783,

.

“The initial burden in on the party moving for summary judgment to demonstrate

the absence of a genuine issue of material fact as to the essential elements of the

case.” Id. at ¶ 38, citing Dresher v. Burt,

,

5 OHIO FIRST DISTRICT COURT OF APPEALS

(1996). “If the moving party meets its initial burden, the burden shifts to the

nonmoving party to set forth specific facts to show there is a genuine issue of

material fact.”

Improper Evidence

{¶11} Two pieces of evidence submitted by the parties cannot properly be

considered under Civ.R. 56. In relevant part, Civ.R. 56(C) provides:

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.

(Emphasis added.) “Other types of documents may be introduced as evidentiary

material only through incorporation by reference in a properly framed affidavit.

Documents that have not been sworn, certified, or authenticated by way of an

affidavit ‘have no evidentiary value.’ ” Firor v. Lydon, 1st Dist. Hamilton No. C-

170137,

, quoting Mitchell v. Internatl. Flavors & Fragrances,

Inc.,

,

,

(1st Dist.).

{¶12} The “Hamilton County Fire Investigation Unit Incident Report” and

the “Woodlawn Police Division Criminal Investigations Section Investigative

Summary” were entered into evidence without properly being sworn to, certified, or

incorporated into an attached affidavit as required to be considered under Civ.R.

56(C). See Hersh v. Grumer, 8th Dist. Cuyahoga No. 109430,

(“The police reports, standing alone, are not proper Civ.R. 56 evidence.”). Thus,

6 OHIO FIRST DISTRICT COURT OF APPEALS

neither document has any evidentiary value for purposes of summary judgment. See

.

{¶13} We acknowledge that there is no indication in the record that either

party raised any objection to either document. When no objection is raised, a trial

court may consider evidence not in accord with Civ.R. 56. E.g., Loukinas v. Roto-

Rooter Servs. Co.,

,

,

(1st

Dist.); Greene v. Partridge,

, 78 N.E. 3d, ¶ 23 (4th Dist.); Nationstar

Mtge. LLC v. Payne,

,

, ¶ 21 (10th Dist.). However, the

issue here is that the trial court’s entry is silent on whether it considered these

documents when determining summary judgment.

{¶14} When there is no indication that a trial court relied on the improper

evidence, a reviewing court will presume the trial court considered only the proper

evidence when ruling on a summary-judgment motion. E.g., Marrie v. Internatl.

Local 717, 11th Dist. Trumbull No. 2001-T-0046,

, ¶ 22, quoting

Drawl v. Cornicelli,

,

(11th Dist. 1997), fn. 5

(“ ‘Even though a trial court may consider evidence not authorized by Civ.R. 56(C)

where there is no objection made, reviewing courts will presume that the court

considered only evidence properly submitted unless it appears from the record that

the court, in fact, relied upon improper materials.’ ” (Emphasis sic.)); Stoll v.

Gardner,

,

,

(9th Dist.),

citing Wayne Sav. Community Bank v. Gardner, 9th Dist. Wayne No. 08CA0016,

(“We will not presume that the trial court considered such

improper evidence, however, unless the trial court specifically indicated that it did so

when entering judgment in the case.”). Therefore, we presume that the trial court

considered only the proper evidence in this case and do the same here in our de novo

7 OHIO FIRST DISTRICT COURT OF APPEALS

review. See Anderson v. Maines Paper and Food Serv. Inc., 8th Dist. Cuyahoga No.

89187,

.

Negligence

{¶15} “To establish actionable negligence, one must show (1) existence of a

duty, (2) breach of that duty, and (3) an injury resulting proximately therefrom.”

Heiert, 1st Dist. Hamilton Nos. C-200244 and C-200391,

,

citing Ellis v. Time Warner Cable, Inc., 1st Dist. Hamilton No. C-120083, 2013-Ohio-

240, ¶ 6. Where the damages are alleged to have been caused by a single tortfeasor,

and the injury complained of may have resulted from any one of several causes, “ ‘it

is incumbent upon plaintiff to produce evidence which will exclude the effectiveness

of those causes for which defendant is not legally responsible.’ ” Beaty v. Schilling,

1st Dist. Hamilton Nos. C-880807 and C-890061,

, *2 (Feb. 21,

1990), quoting Gedra v. Dallmer Co.,

,

(1950),

paragraph two of the syllabus.

[T]he law is that there can be no guessing by either court or

jury. There must be some evidence, direct or inferential, that the

agency which produces an injury is the result of the negligence of a

defendant before he can be held liable therefore, and if the cause of an

injury to a plaintiff may be as reasonably attributed to an act for which

the defendant is not liable as to one for which he is liable, the plaintiff

has not sustained the burden of proving that the injury is the direct

result of the defendant’s negligence.

8 OHIO FIRST DISTRICT COURT OF APPEALS

.1

The supreme court [sic] observed that the rule in Gedra * * *

does not impose a burden on the plaintiff ‘of always effectively

eliminating all other possible causes’ analogous to proof beyond a

reasonable doubt in a criminal case. Instead, under this rule the

plaintiff fails to prove causation if from the same facts used by the

plaintiff to infer proximate cause, it is equally reasonable to draw

inferences of other possible causes.

Wesley v. McAlphin Co., 1st Dist. Hamilton No. C-930286,

, *3

(May 25, 1994), quoting Westinghouse Elec. Corp. v. Dolly Madison Leasing &

Furniture Corp.,

,

(1975).

{¶16} If the plaintiff fails to eliminate equally valid theoretical causes for the

actionable injury, “the plaintiff would be asking the fact finder merely to speculate in

his or her favor, a latitude the law does not grant.” Lonaker v. Cincinnati Youth

Sports, 1st Dist. Hamilton No. C-030672,

, quoting Loura v.

Adler,

,

(1st Dist. 1995). “In short,

negligence is never presumed, and the plaintiff must show how and why the injury

occurred.” Id. at ¶ 14, citing Wesley.

{¶17} Here, the evidence established that improper disposal of a cigarette

was the suspected cause of the fire. Four individuals were smoking on the balcony

that day, including Stites. Stites claimed that he smoked one cigarette and then

placed the cigarette butt in an empty beer bottle when he was done. The others

1 While the Ohio Supreme Court has adopted the theory of alternative liability in Munnich v. Ashland Oil Co.,

,

(1984), it retained Gedra for cases which “ ‘involve a single plaintiff and a single defendant, with allegedly multiple proximate causes for the plaintiff’s injuries.’ ” Beaty, 1st Dist. Hamilton Nos. C-880807 and C-890061,

, at fn. 1.

9 OHIO FIRST DISTRICT COURT OF APPEALS

placed their cigarette butts in the hollow leg of an overturned plastic chair. MCI

argues that whether Stites actually placed his cigarette in the beer bottle was a

genuine issue of material fact that warranted denial of summary judgment.

However, even if this testimony was ultimately disbelieved, the evidence would still

be insufficient to prove proximate causation. It would be equally possible, based on

the evidence presented, to infer that any one of the four people smoking on the

balcony that day could have caused the fire due to improper disposal of their

cigarette and MCI failed to put forth evidence to eliminate any of the other

individuals present as the potential proximate cause of the fire.

{¶18} MCI cites to Westinghouse,

,

, and

Morelli v. Walker, 8th Dist. Cuyahoga No. 88706,

, and asserts that

merely establishing that Stites was smoking in the area of the fire was sufficient.

However, neither case provides support for MCI’s argument.

{¶19} In Westinghouse, the suspected cause of a warehouse fire was careless

smoking by a warehouse tenant’s employee.

. The fire spread to

an adjoining part of the warehouse, occupied by another tenant, which was the

plaintiff in the action.

. Evidence was presented that: (1) the defendant’s

employee was in the vicinity of the closet which was the point of origin of the fire, (2)

the defendant’s employee was smoking, (3) the defendant’s employee would

probably have had to dispose of a cigarette butt while near the closet, (4) there were

flammable materials in the closet and paper which could be set on fire by a dropped

cigarette, and (5) the interval of time before the discovery of the fire was compatible

with a fire cause by a dropped cigarette.

. “Defendants suggested other

causes of the fire were possible, such as spontaneous combustion, arson, or sparks

from a locomotive.”

The court found “all of these possible causes were questions

10 OHIO FIRST DISTRICT COURT OF APPEALS

of fact for the jury and none acted to prevent the drawing of an inference of

defendant’s liability, as they would for example, if they established that some other

cause was the only one possible.”

. Importantly, the court went on to

say:

None of the defendant’s theories of the cause of the fire amount

to more than the suggestion that other causes were possible, and none

amounted to proof that the evidence presented by plaintiffs did not

permit an inference that careless smoking by defendant’s employee

caused the fire. Suggestion of other causes is limited only by the limits

of the human imagination, and are not the basis for taking a case from

the jury.

The distinction between those possible causes which, as a

matter of law, render the drawing of an inference of negligence

impermissible and those which involve weighing the evidence by the

jury, can be best illustrated by an example.

In the instant case, plaintiffs could prove all the facts they

allege and still not make out a case, if it were also proved that other

persons were smoking near the closet, who were not employees of

defendant, and that it was reasonable to infer that one of their

cigarettes caused the fire. In that hypothetical case, plaintiff’s

evidence, no matter how convincing, would not warrant an inference

that defendant’s negligence was responsible for the fire, for it would be

a matter of speculation as to who had tossed the guilty cigarette butt.

Because an inference of defendant’s negligence would be

impermissible on those facts, plaintiffs would have the burden of

11 OHIO FIRST DISTRICT COURT OF APPEALS

eliminating the carelessness of the other smokers in order to make out

a case for the jury.

.

{¶20} The case at hand parallels the hypothetical situation laid out by the

Ohio Supreme Court in Westinghouse to represent a situation in which an inference

would be impermissible. The evidence shows that four people were present and

smoking on the balcony that day and MCI did not meet its burden to eliminate the

carelessness of the other smokers as a proximate cause of the fire. Thus, it would be

impermissible in this case to infer that Stites’s negligence caused the fire because it

would be based on speculation as to who tossed the guilty cigarette butt.

{¶21} Morelli, 8th Dist. Cuyahoga No. 88706,

, also does

not provide support for MCI’s argument. Morelli concerned a house fire that

occurred in the early morning hours after Morelli hosted a surprise party.

. The defendant, a guest at the party, asked Morelli if she could smoke, and

Morelli allowed the defendant to smoke in the garage because of the extremely cold

temperatures. Id. at ¶ 3. The defendant smoked two cigarettes throughout the party.

Id. At some point in the night when Morelli was sleeping, the smoke alarms went off

and she was met with a wall of fire in the garage. Id. at ¶ 5. Firefighters arrived and

determined the point of origin was the northeast corner of the garage. Id. at ¶ 6.

Within that area of the garage were two electrical outlets, a refrigerator, and a

wooden cart with two containers of peat moss and dahlia bulbs in them. Id. The

defendant claimed to have extinguished the tips of her cigarettes inside a glass and

then placed the butts back in her pack. Id. at ¶ 7. Investigators identified four

possible origins of the fire: each of the two outlets, the refrigerator, and the negligent

disposal of smoking materials near the container of peat moss. Id. at ¶ 8.

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶22} Morelli sued the defendant and, during trial, both sides presented

expert testimony on the cause of the fire. Id. at ¶ 9, 11. A jury verdict was returned

against the defendant and defendant appealed, arguing that the trial court erred in

denying her motion for a directed verdict because Morelli’s expert testimony could

not establish proximate causation. Id. Morelli’s expert opined that the cause of the

fire was the defendant’s negligent disposal of smoking materials. Id. at ¶ 18. By

using deductive reasoning, the expert “sought to eliminate as many of the possible

causes as he could.” Id. The expert had a forensic electrical engineer testify in

support of his conclusion. Id. at ¶ 19. Recognizing that three of the possible causes

were potential electrical malfunctions, the engineer eliminated those three potential

causes in his testimony. Id. Thus, Morelli’s expert testimony eliminated all but the

negligent disposal of a cigarette as the possible cause. Id. Alternatively, defendant’s

expert opined that the “cause of the fire related to the normally operating refrigerator

that ignited nearby combustibles.” Id. at ¶ 20. Ultimately, the court found that the

trial court did not err in allowing the case to proceed to a jury as “reasonable minds

could reach different conclusions when considering all of the evidence.” Id.

{¶23} Thus, Morelli is distinguishable from the case at hand because (1) only

one person was smoking in the area at the time of the fire and (2) expert testimony

eliminated all other possible causes of the fire. Therefore, it would have been

permissible in Morelli for the jury to infer the defendant’s negligence because this

conclusion would not be based on speculation or conjecture. In the case at hand, no

evidence was presented to eliminate the other potential causes of the fire, for which

Stites would not have been legally responsible, so any inference that he was negligent

would be impermissible as it would be based purely on speculation or conjecture.

Therefore, the trial court properly granted summary judgment in favor of Stites.

13 OHIO FIRST DISTRICT COURT OF APPEALS

Joint Tortfeasor

{¶24} MCI additionally argues that summary judgment should have been

denied because Stites was a joint tortfeasor in a joint enterprise. “[I]n order for an

individual to be engaged in a joint enterprise within the meaning of the law of

negligence, there must be a community of interests in the purpose of the enterprise,

and the individual must have some voice and right to be heard in its control or

management.” Zachariah v. Roby,

,

,

(10th Dist.). “ ‘Parties cannot be said to be engaged in a joint

enterprise, within the meaning of the law of negligence, unless there be a community

of interests in the objects or purposes of the undertaking, and an equal right to direct

and govern the movements and conduct of each other with respect thereto.’ ” Bloom

v. Leach,

,

(1929), quoting St. Louis & S.F.R. Co. v. Bell,

,

(1916). “ ‘Each must have some voice and right to be heard in

its control or management.’ ”

{¶25} MCI appears to argue that Stites was part of a common purpose to

dispose of the cigarettes in a plastic chair among flammable debris and thus all

involved are equally culpable. However, there is nothing in the record to show the

existence of any common enterprise, of the sort that each had the right to direct and

control each other’s movement, between the people smoking on the balcony that day.

There is no indication of any control as to how each of them disposed of their

cigarettes or any indication that any of them had any right to direct or govern the

movement or conduct of each other in this regard. On the contrary, Stites testified

that they never discussed how to dispose of the cigarettes. Thus, it cannot be said

that the parties smoking on the balcony that day were engaged in a joint enterprise.

14 OHIO FIRST DISTRICT COURT OF APPEALS

Therefore, the trial court did not err in granting summary judgment in favor of

Stites. MCI’s sole assignment of error is overruled.

Conclusion

{¶26} Having overruled the sole assignment of error, we affirm the judgment

of the trial court.

Judgment affirmed.

BERGERON and WINKLER, JJ., concur.

Please note:

The court has recorded its own entry this date.

15