Seventh District: Construction Company Not Responsible for Bulldozed House
Ohio treats a stolen bulldozer no different than a stolen car. And if a thief steals a bulldozer and demolishes a house, the dozer owner is not liable for damages caused by a joy-riding thief, an Ohio appeals court ruled.
The Seventh District Court of Appeals recently affirmed the ruling of a Belmont County trial court that dismissed Roger Lagowski’s lawsuit against construction contractor Shelly & Sands, whose stolen bulldozer was used to smash Lagowski’s Bellaire home.
In July 2012, Shelly & Sands was conducting construction on Belmont County Road 214 near Interstate 470. A Caterpillar D-6 bulldozer was on the job site and left unattended. An unidentified person drove off with the bulldozer, traveled about a mile to Lagowski’s house, ripped through the front of the home, and continued plowing through the house until the bulldozer ran out of gas. Media reports said Lagowski and another relative who lived in the home were both out of state at the time.
Lagowski filed suit in Belmont County Common Pleas Court arguing Shelly & Sands had a duty to secure the bulldozer with a lock and its negligence allowed a thief to wreck his home.
Shelly & Sands asked the case be dismissed, citing the Seventh District 1997 Tilton v. Austin Motors Inc. ruling that found a vehicle owner whose car was stolen was not liable for negligence to others, even if the owner left the keys in the ignition when it was stolen. The trial court sided with the contractor and Lagowski appealed to the Seventh District.
Writing for the appellate court, Judge Cheryl L. Waite noted the Tilton decision was based on the Ohio Supreme Court’s 1985 Pendrey v. Barnes decision, which also found the owner of a stolen vehicle, even if the keys are left in the ignition, is not liable for damage to others caused by the thief. She wrote that Lagowski did not present any evidence from an Ohio court contradicting those rulings and the only case he could cite regarding a stolen bulldozer was a 1955 California case.
In the California case, two men who had been drinking tried to steal two bulldozers from a construction site, but could only get one to operate. They did not know how to turn off the dozer so they left it running and it eventually went over a hill, across a highway, through a house, and into a retaining wall.
The victims of the damage sued and while a jury found the bulldozer owners’ were not liable, an appeals court ordered a new trial, noting it is a foreseeable risk that unattended bulldozers would draw after-hour attention from meddlers. It also found that the owner knew people were meddling with the equipment and he had instructed his crew to keep them locked to prevent injury.
Judge Waite wrote that the case implies there might be “special circumstances” regarding bulldozers, but neither California nor Ohio requires extra locks on construction equipment, and a decision to require a lock would be a policy decision to be made by the Ohio General Assembly.
The California case is mentioned in one 1989 Ohio case, Fed. Steel & Wire Corp. v Ruhlin Const. Co., where vandals threw construction material from a site and damaged a nearby landowner’s property. Judge Waite noted in that case that the Supreme Court did not set a blanket rule that contractors are liable for failing to secure their construction sites, but if a contractor is aware of repeated vandalism to the site that could cause injuries or affect others, then the contractor should take steps to prevent future vandalism.
She wrote that Lagowski had to argue more than mere negligence by Shelly & Sands, and he needed to show the company had a “special duty” based on repeated intrusion.
“(Lagowski) did not allege that there was repeated trespass or vandalism, nor did he allege any other circumstances that should have led (Shelly & Sands) to recognize that its worksite was compromised and that trespasser or intermeddler may attempt to operate a bulldozer,” she wrote.
Lagowski had argued that a bulldozer is different than a car because it is much larger and more capable of causing damage, but Judge Waite concluded that without proving there was knowledge of trespassers, Ohio does not consider the size of the vehicle, and his situation “is no different factually than those scenarios involving an automobile.”
Judges Gene Donofrio and Mary DeGenaro concurred in the decision.
Lagowski v. Shelly & Sands, Inc., 2015-Ohio-2685
Civil Appeal From: Belmont County Common Pleas Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 29, 2015
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