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Temple v. Fence One12/15/2005
§136(b)(bb). With respect to labeling, regulations promulgated by the EPA address the design and content of the label, see 40 C.F.R. §156.10, and further require that the final printed label must be submitted before registration. Labeling is approved by the Administrator only if it is determined that the label is "adequate to protect the public from fraud and from personal injury and to prevent unreasonable adverse effects on the environment." 40 C.F.R. §156.10(i)(1)(i).
{ } The uncontroverted evidence in the record demonstrates that ISK Biocides properly registered Perm-E8% with the EPA under Registration Number 1022-528-50534. Further, ISK Biocides furnished an EPA-approved label for Perm-E8%, as well as an MSDS for Perm-E8% showing the registration number as approved by the EPA. Thus, Temple's claim that ISK Biocides failed to register or properly label its product is without merit.
{ } Moreover, Temple failed to present any evidence that ISK Biocides had any duty to provide more specific warnings to her than those approved by the EPA simply because she is hypersensitive to certain chemicals or that it was even aware of her MCS condition prior to installation of the fence. Without a duty, any negligence claim necessarily fails.
{ } Because Temple's negligence, nuisance, and recklessness claims fail as a matter of law, the trial court properly granted summary judgment in favor of ISK Biocides regarding these claims.
{ } With respect to Temple's fraud claim against ISK Biocides, Temple argues that ISK is liable for the alleged misrepresentations in EA Group's report. As discussed earlier, however, Temple admitted that she did not rely on the report. Without such reliance, Temple's fraud claim necessarily fails. Therefore, the trial court did not err in granting summary judgment to ISK Biocides on the fraud claim.
TEMPLE'S CLAIMS AGAINST FENCE ONE
{ } Despite Temple's claims to the contrary, she did not allege fraud against Fence One in her complaint. Moreover, as discussed above, recklessness is not recognized as a separate cause of action in Ohio. Accordingly, we address only Temple's claims of nuisance and negligence with respect to Fence One.
{ } Initially, we note that Temple does not find any fault with the manner in which Fence One installed the fence. Rather, the fact that the chemically-treated fence exists, regardless of any fault in its construction, is the basis of her nuisance claim.
Temple's nuisance claim against Fence One fails, however, for the same reasons her nuisance claim against the other defendants fails: she has failed to establish that the fence is a public or private, absolute or qualified nuisance.
{ } Temple's negligence claim against Fence One is similarly not premised on the installation of the fence, but on her claim that the chemically treated fence is an inherently dangerous product for which all defendants owed her a duty to warn. As with the other defendants, Temple has failed to establish that Fence One had any duty to warn her of anything relating to the fence. The Komars, not Temple, contracted with Fence One for installation of the fence. There is no evidence in the record to show that Fence One was on notice of any defect in the lumber that it used to install the fence. There is similarly no evidence that chemically treated lumber is by its very nature defective or inherently dangerous. Likewise, Temple produced no evidence that Fence One had knowledge prior to installation of the Komars' fence of any complaints or injuries involving the treated wood or that Temple was hypersensitive to certain chemicals. Accordingly, Temple has failed to demonstrate that Fe
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