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Westfield Ins. Co. v. Huls Am.6/9/1998
TROCAL defect. We disagree.
A cause of action in negligence alleging a defendant's "failure to meet the duty to warn" is the same as in strict liability actions. A negligence cause of action is "an alternative to a strict liability cause of action for failure to warn." (Emphasis sic.) Crislip v. TCH Liquidating Co. (1990), 52 Ohio St.3d 251, 256, 556 N.E.2d 1177, 1181-1182. However, an "insurer-subrogee cannot succeed to or acquire any right or remedy not possessed by its insured-subrogor." Chemtrol, supra, paragraph one of the syllabus. Therefore, the mall tenants must bsable to bring a negligent failure-to-warn action in their own right before Westfield will be permitted to Me suit as subrogee in their place.
To establish actionable negligence it is fundamental that a plaintiff show the existence of a duty on the part of the defendant toward the plaintiff, a breach of that duty, and an injury proximately caused by such breach of duty. Where there is no duty or obligation of care or caution, there can be no actionable negligence. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265, 269-270; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467. See, also, Jeswald v. Hutt (1968), 15 Ohio St.2d 224, 44 O.O.2d 196, 239 N.E.2d 37; Norwalk v. Tuttle (1906), 73 Ohio St. 242, 76 N.E. 617; Elster v. Springfield (1892), 49 Ohio St. 82, 30 N.E. 274. The mere omission of a duty that causes injury is not the foundation of a negligence action unless it results in injury to one for whose protection the duty is imposed. See Cleveland Terminal & Valley RR. Co. v. Marsh (1900), 63 Ohio St. 236, 58 N.E. 821. While it may be argued that appellee owed a duty to UAP to warn of the possibility of the roofs failure, it is clear from the record that the tenants were not considered as beneficiaries of UAP's rights and benefits with regards to the TROCAL roof. See Drew v. Gross (1925), 112 Ohio St. 485, 147 N.E. 757; McCoy v. Engle (1987), 42 Ohio App.3d 204, 207, 537 N.E.2d 665, 668-669.
HULS was under no duty to warn the mall tenants of the roofs propensity to shatter, and Westfield, likewise, cannot support its negligence claim where the defendant owes neither it nor its insured a duty to warn. It was UAP Columbus and Standard that contracted with appellee HULS (then Dynamit/DNA) to provide a TROCAL roof for the Lane Avenue shopping mall. The tenants were not a part of the agreement between HULS and UAP. In fact, the lease agreement between UAP Columbus and Standard and the mall tenants, under which the tenants contracted with Standard as management company for UAP Columbus, provides that the tenants have no control over or rights in the roof area or its maintenance. Therefore, HULS's duty would have been one to warn UAP Columbus and Standard of any defect in the roof, not the tenants. While it may be true that the tenants could have benefitted from HULS's warning of the defective properties of the TROCAL system, and while HULS may have owed a duty to warn UAP of such a defect, there is no evidence in the record that HULS owed a duty to the tenants to provide such a warning. Westfield's alleged right to be warned as beneficiaries of UAP's rights is directly derived from any rights that the tenants gained from UAP. As has been stated earlier, UAP's lease specifically states that the tenants have no rights in the roof and therefore Westfield had no right to be warned by HULS of the roof's condition.
If the Westfield tenants could somehow be considered as having the right to bring their negligent-failure-to-warn suit, that action is further barred bsthe statute of limitations on such actions. Since Westfield's negligence action stems from an assertion t
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