This month we start with a case from the Ohio Court of Appeals for Cuyahoga County. A supplier’s inability to prove that materials were delivered on a specific date or that the materials were actually incorporated into the project appears to be the death knell for the supplier’s lien claim. Our second case this month comes from the Ohio Court of Appeals for Clark County. There the Court held that a negligence per se standard should not apply to an accident victim’s claim against a contractor. The city ordinance at issue was not created to impose a duty to protect public safety as the ordinance was created to allocate liability between the city and a contractor performing road work.  

Supplier Can’t Prove Basic Facts Needed To Support Lien Rights

In the world of contracting and subcontracting, it is important to understand the details involved in obtaining an enforceable mechanic’s lien. There are requirements regarding the content and the timeliness of filing the lien affidavit. These requirements were at the heart of the recent Eighth Appellate District of Ohio case, JJO Construction, Inc. v. Penrod, 2010-Ohio-2601.  

The Penrod case involved the construction of a Rite Aid drug store. J.J.O. Construction, Inc. (“JJO”) was the general contractor and subcontracted the installation of the heating, air conditioning, and ventilation equipment to Air Technologies. Air Technologies then contracted with Refrigeration Sales Corporation to supply the equipment. When Air Technologies refused to pay Refrigeration Sales for the equipment, Refrigeration Sales filed a mechanic’s lien affidavit.  

Part of JJO’s contract with Rite Aid required JJO to post a bond large enough to cover the mechanic’s lien. In response to this lien being filed, JJO sued and claimed that the lien should not be enforced. The court addressed two issues with respect to the mechanic’s lien; the sufficiency of information provided in the lien affidavit and the timeliness of filing the lien affidavit.  

JJO pointed out two errors in the content of the affidavit. First, Refrigeration Sales identified the owner as Rite Aid Corporation of Ohio when the correct name was Rite Aid of Ohio, Inc. The court pointed out that the language of the Ohio statute on the filing of mechanic’s liens, R.C. § 1311.06(A), says that the name of the owner must be included only “if known.” Because this “if known” language was used, the court determined that the name of the owner is not vital to the lien affidavit. Also, the court stated that the difference between Rite Aid’s correct business name and the one stated in the lien affidavit was inconsequential and thus did not make the affidavit unenforceable.  

The second error that JJO pointed out in the content of the affidavit pertained to the property description. Ohio law, R.C. § 1311.06(A), requires the lien affidavit to include a legal description of the land. Refrigeration Sales provided an accurate legal description, but they also included an inaccurate permanent parcel number. JJO claimed that the inaccurate permanent parcel number made the lien affidavit defective. The court concluded that since the lien affidavit provided the correct legal description, as required by Ohio law, the fact that it also included an inaccurate permanent parcel number did not make it defective. So, JJO’s claims that the lien affidavit did not provide the correct information required by law were not successful.

JJO’s second argument was that the lien affidavit was unenforceable because Refrigeration Sales waited too long to file it. Under R.C. § 1311.06(B)(3), the mechanic’s lien affidavit must be filed within 75 days from the date on which Refrigeration Sales last furnished material to Air Technologies. There was a dispute as to whether Refrigeration Sales actually delivered material to Air Technologies in the 75 days preceding the filing of the affidavit lien.  

This question, according to the court, really just came down to whether Refrigeration Sales could prove one of two points; that they actually delivered the goods on the day they claim they did or that the goods were actually incorporated into the building. The court said that either of these two points would be easy to prove if they occurred and since Refrigeration Sales couldn’t provide proof to establish either point, then that proof probably didn’t exist. So, the court found that even though the information in the lien affidavit was sufficient, the mechanic’s lien was still unenforceable because Refrigeration Sales couldn’t prove they delivered materials to Air Technologies in the 75 day time period required by Ohio law.  

No Negligence Per Se Standard for Motorist Injured on Construction Project

If a motorist sustains injuries while traveling on a road that is under construction, it is possible that the motorist could sue the construction company performing the road work and claim the construction company was somehow negligent in their work. If this happens, the outcome of the case will depend heavily on the standard used by the court to determine liability.  

In a regular negligence suit, the motorist would have to show that the construction company owed the motorist a duty of care, that the duty was breached, and that breaching the duty proximately caused the motorist’s injuries. If, however, the court determines that the negligence per se standard applies, then all the motorist needs to prove is that the construction company violated a law and that will result in the construction company being held liable for the motorist’s injuries.  

So, one can see that the standard applied can have a great impact on the outcome of the case. The Second Appellate District of Ohio was faced with determining which standard to apply in Kooyman v. Staffco Construction, Inc., 2010-Ohio-2268.  

Kooyman involved a construction contract to excavate a portion of road in the city of Springfield. Staffco Construction (“Staffco”) obtained a permit from the city to do work on three sections of the city’s roads. After the city closed the road, Staffco dug trenches, laid piping, and then backfilled the trenches with gravel when they were done. Once the gravel was put down, the city reopened the road. Gregory Kooyman was riding his motorcycle on the newly reopened road near one of the unpaved trenches when he lost control of his motorcycle and crashed, sustaining injuries.

Kooyman sued Staffco claiming Staffco was negligent for failing to restore the trench properly and negligent for failing to notify the city that the trench was ready to be repaved as required by a city ordinance. The city ordinance stated that anyone excavating a paved street must provide written notice to the city when they are done with their work, so that the city can restore the pavement. The ordinance goes on to say that the person performing the work is liable to the city for any claims which result from the excavation and that this liability stays in place until the city gives written notice that the city has taken over the work of repaving the road. The trial court determined that Staffco violated this ordinance by not providing notice to the city that the road was ready to be repaved. Because of this violation, the trial court decided that Staffco was negligent per se and thus Kooyman did not need to prove the elements of negligence.  

The Second Appellate District of Ohio did not agree with the trial court. The appellate court found that even if Staffco violated the city ordinance, negligence per se was not the correct standard to use. Negligence per se only arises when a person violates a law which imposes a duty to protect public safety. This city ordinance had a purpose of allocating liability between the city and the person performing road work, and thus was not created to impose a duty to protect the public safety. This ordinance established that Staffco was liable to the city for any claims arising against the city, but the appellate court held that a violation of this ordinance did not create automatic liability to Kooyman. Instead, Kooyman would have to prove that Staffco was negligent.

So, negligence per se should not have been the standard applied because the city ordinance was not created to protect public safety. Kooyman needed to prove that Staffco was negligent by showing that Staffco owed Kooyman a duty of care, that the duty was breached, and that breach proximately caused Kooyman’s injuries. The appellate court sent the case back to the trial court to apply the regular negligence standard instead of negligence per se.