Brief filed: R&R Family Investments v. The Plastic Moldings Corp.

Today we filed a notice of appeal and a jurisdictional brief in the Ohio Supreme Court on behalf of the appellant in R&R Family Investments v. The Plastic Moldings Corp., et al. You can read the brief here.

At issue in the case is whether a property owner owes a duty to people outside the land with regard to naturally occurring conditions of which the owner has actual knowledge. More particularly, our brief asks the Court to accept the appeal in order to adopt Section 54 of the Restatement Third of Torts: Liability for Physical and Emotional Harm.


The parties to the case are neighbors on a hillside. R&R's building is downhill from a parcel that at one time or another was owned by each of the appellees. In 2012 a landslide occurred on the uphill parcel and deposited debris on R&R's property. In 2013, another. R&R asked its neighbor to clean up the slide and prevent future slides, but the neighbor refused, and so R&R removed its neighbor's dirt from its land, and built a concrete-block wall to try to catch any future slide and keep the mass off its building. In 2014 a third slide--larger than each of the others--started on the uphill property, slid down into and knocked over the block wall, and crashed into R&R's building.

R&R sued on theories of trespass and negligence, but the trial court determined that "natural occurrences" cannot give rise to such claims; it reasoned that an uphill property owner owed no duty to neighbors with regard to such circumstances.

The First District affirmed, in an opinion authored by Judge Patrick Fischer and joined by Judge Pat DeWine--both of whom now sit on the Ohio Supreme Court. In that decision the court wrote that it felt bound by a 1984 Ohio Supreme Court case called Heckert v. Patrick, which made reference to Section 363 of the 1965 Restatement Second of Torts; the court held that Section 363 generally provided that no duty was owed to people outside the land in regards to natural conditions, and that the facts of the case did not fit within any identified exceptions.

But the court also wrote that "courts [in Ohio and elsewhere] appear to be moving away from a strict application of Section 363" of the Second Restatement, and it noted that the Third Restatement had "abolished" Section 363 in favor of a rule that possessors of land owe neighbors a duty of reasonable care for known dangers. It nevertheless affirmed the summary judgment against R&R because it felt "bound by the analysis in Heckert" and its reference to--though not express adoption of--Section 363.

Our appeal today thus asks the Ohio Supreme Court to revisit Heckert, and to adopt Section 54 of the Third Restatement as the law of Ohio.