City Liability for Accidents - No Evidence of Increased Risk of Harm
Does City Owe Legal Duty to An Individual If There Is No Evidence of Increased Risk of Harm to Him by Presence of Employees at Accident Site ?
In Power v. Boles (1996), 110 Ohio App. 3d 29, 673 N.E.2d 617, the appellate court affirmed the trial court's grant of summary judgment on behalf of the city of Columbus, determining that the city owed no legal duty to the decedent in that case.
When considering the issue of duty, the court considered, 110 Ohio App. 3d at 34, 673 N.E.2d at 620, Section 323 of the Restatement of the Law 2d Torts (1965) 135, which states:
"Negligent Performance of Undertaking to Render Services
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if:
"(a) his failure to exercise such care increases the risk of such harm, or
"(b) the harm is suffered because of the other's reliance upon the undertaking."
The appellate court in Power, supra, recognized that the above section has been cited with approval by the Ohio Supreme Court, but not formally adopted.
Because the court found there was no evidence indicating any actions by the other employees at the scene of the accident increased the risk of harm to the decedent, the court found the above section did not give rise to a legal duty on behalf of the city.