A negligence claim arising from a water main break and subsequent crash from ice on a roadway needs to go to trial instead of being resolved through summary judgment, according to a Twelfth District Court of Appeals ruling.

Judge Michael E. Powell authored the unanimous decision that reversed and remanded the case from the Clermont County Common Pleas Court calling its summary judgment ruling “inappropriate.”

Kristi Profitt lost control of her Jeep on State Route 756 in Clermont County on December 2, 2008, after she “hit a sheet of ice.” She suffered injuries after her Jeep left the roadway and flipped. More than an hour before Profitt left home to drive to work that day, the Tate Monroe water company had been notified of a water main break and water running out onto the road.

Kristi and her husband Michael sued Tate Monroe and employee Barbara Adamson in Clermont County Common Pleas Court asserting claims of negligence and loss of consortium. The trial court granted Tate Monroe and Adamson’s motion for summary judgment. The Profitts appealed the summary judgment to the Twelfth District Court of Appeals.

Under Civil Rule 56, Judge Powell wrote, “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.’”

Citing two previous appeals court cases, Judge Powell also noted that “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.”

Judge Powell discussed whether Tate Monroe owed a duty to inspect and maintain its water lines and the duty of ordinary care. He also discussed how reasonable minds could come to different conclusions about whether the accident was caused by a leak in the service line, water discharged from the flush hydrant, or both.

“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,” Judge Powell wrote.

“Summary judgment is not the vehicle for weighing the evidence or determining witness credibility,” he continued. “Only a trial on the merits can resolve such disputes.”

Judges Robert P. Ringland and Robert N. Piper III concurred in the opinion.

Profitt v. Tate Monroe Water Assn., Inc., 2013-Ohio-2278
Opinion: http://www.sc.ohio.gov/rod/docs/pdf/12/2013/2013-ohio-2278.pdf
Civil Appeal From: Clermont County Common Pleas Court
Judgment Appealed From Is: Reversed and Remanded
Date of Judgment Entry on Appeal: June 3, 2013

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