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Thursday, October 13, 2011

Supreme Court of Ohio Holds that Woman Injured by Tree is Not a Third-Party Beneficiary of Contractor

Ohio-flagDust off Restatement (2d) of Contracts § 302....

Lisa Huff was out walking during a heavy thunderstorm in Hartford Township, Ohio, when she was seriously and permanently injured by the limb of a tree.  A large sugar maple tree split in two and the limb fell and struck her.  While Ohio Edison Company did not own the property where the tree was located, the tree was 20 feet from utility lines that it owned and maintained.  Ohio Edison had hired Asplundh Tree Expert Company to inspect and maintain the trees along its power lines in that area.  Huff sued Ohio Edison and Asplundh on the theory that they “failed to inspect, maintain and remove the tree or to warn the landowner of the public danger raised by the tree.” 

So far it sounds like one for the torts anthology; indeed, Ohio Edison and Asplundh argued that they owed no duty to Huff.  However, Huff responded that Ohio Edison had contracted with Asplundh to inspect and maintain the trees and she was a third-party beneficiary of that contract. 

The contract specifically provided that Asplundh “shall plan and conduct the work to adequately safeguard all JALcolor persons and property from injury.”  Nevertheless, the Supreme Court of Ohio held that Huff was not an intended beneficiary.  In reversing the intermediate appellate court, Judge Lanzinger reasoned:

When this statement is placed in context, however, it is unambiguous that neither Ohio Edison nor Asplundh intended to make the Huffs third-party beneficiaries under the contract. The contract was not entered into for the general benefit of the public walking on public roads. It was designed to support the electrical service offered by Ohio Edison. The contract states that it applies to work, consisting of “tree trimming, tree removal, clearance of rights-of- way using either manual or chemical methods, and disposal of trees and brush,” completed by Asplundh on behalf of Ohio Edison. The purpose of the contract, then, is to ensure that Ohio Edison’s equipment and lines are kept free of interference from trees and vegetation. The remainder of the contract sets forth how this work is to be carried out, such as the standards by which Asplundh is to perform its work, the limits on liability for the performance of thework, and the necessary qualifications for the Apslundh employees who were to perform the work. The contract contains no language establishing an ongoing duty to the general public on behalf of either Ohio Edison or Asplundh.

TOcolorIn a concurring opinion, Judge O’Donnell agreed with the result but not the majority’s statement of law insofar as it “create[d] a new requirement that the intention to benefit a third party must be indicated in the terms of the contract.”

Huff v. FirstEnergy Corp, et al., Slip Op No. 2011-Ohio5083 (Oct. 5, 2011).

[Meredith R. Miller]

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