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Barnett v. Carr9/17/2001
(Aug. 31, 1987), Hancock App. No. 5-85-33, 1987 Ohio App. LEXIS 8541, at *8, unreported.
In the case at bar, it is undisputed that both Carr and Jesse drank alcohol before the accident, from the time they left work and during the wedding reception. It is also undisputed that Jesse knew Carr had been drinking when he got into Carr's vehicle. The evidence shows that the vehicle driven by Carr was approaching a "L" intersection at about seventy-four m.p.h. (presumably to scare Jesse), did not slow down, ran a stop sign, and became airborne before it encountered the boulder in its travel path. Under the foregoing circumstances, we find that the trial court properly found that the boulder in appellees' front yard was not the proximate cause of Jesse's injuries. Appellants' fifth issue for review is overruled.
In their sixth issue for review, appellants argue that the trial court erred by finding that appellants "failed to plead and create a general issue of material fact as [appellees'] commission of the tort of nuisance[.]" The trial court rejected appellants' nuisance claim on the grounds that (1) appellants failed to specifically allege nuisance in their complaints, and (2) there was "no evidence that anyone's rights [were] violated by [appellees] having a rock in their front yard."
We first address whether appellants' failure to specifically plead nuisance in their complaints was fatal to their nuisance claim. Civ.R. 8(A) requires only that a pleading contain a short and plain statement of the circumstances entitling the party to relief. "A party is not required to plead the legal theory of recovery or the consequences which naturally flow by operation of law from the legal relationships of the parties." Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, 526. "The rules make clear that a pleader is not bound by any particular theory of a claim but that the facts of the claim as developed by the proof establish the right to relief." Id.
Paragraphs 14 and 15 of appellants' complaint and amended complaint state that
14. Said rock was placed for the intentional, knowing, willful, and malicious purpose of hindering or impeding, by forceful impact with the rock as a barrier, any car running through that intersection, off of Sycamore Street, and onto [appellees'] property, to prevent their encroachment thereon.
15. [Appellees] knew, or were aware of, or had reason to believe, and it was reasonably foreseeable that said barrier would be unreasonably dangerous to any person or vehicle accidently or otherwise running past that intersection into their yard.
In light of the overall liberal allowances accorded to pleadings under the Ohio Rules of Civil Procedure, see Rose v. Clark Oil & Refining Corp. (June 10, 1991), Butler App. No. CA90-07-139, unreported, and based upon the definition of nuisance (set forth below), we find that appellants' complaints sufficiently set forth a cause of action under a nuisance theory. The trial court therefore erred by rejecting appellants' nuisance claim on the ground that appellants failed to specifically allege nuisance in their complaints.
We next address whether there is a genuine issue of material fact as to whether appellees' conduct of placing the boulder on their property constituted nuisance. "Nuisance" is a term used to designate "the wrongful invasion of a legal right or interest." Taylor v. Cincinnati (1944), 143 Ohio St. 426, 432. The liability of the defendant, as well as the plaintiff's entitlement to relief, will depend upon both the nature of the alleged nuisance and the conduct of the defendant. Nuisance may be first designated as "private" or "public." Brown
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