Cole v. Toledo Refining Company, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

KEITH COLE, CASE NO. 3:23 CV 769

Plaintiff,

v. JUDGE JAMES R. KNEPP II

TOLEDO REFINING COMPANY, LLC,

MEMORANDUM OPINION AND

Defendant. ORDER

INTRODUCTION

Currently pending before the Court in this personal injury suit is Defendant Toledo

Refining Company, LLC’s Motion to Dismiss Plaintiff Keith Cole’s Complaint. (Doc. 4).

Plaintiff opposed (Doc. 5), and Defendant replied (Doc. 6). Jurisdiction is proper under 28

U.S.C. § 1332.

For the following reasons, the Court grants in part and denies in part Defendant’s Motion.

BACKGROUND

Originally filed in the Lucas County Court of Common Pleas and removed to this Court,

Plaintiff’s two-count Complaint asserts claims of negligence and trespass against Defendant. See

Docs. 1, 1-1. According to the Complaint, Defendant “is a refining company doing business at

1819 Woodville Road, Oregon, Ohio”. (Doc. 1-1, at ¶ 2). On November 23, 2021, Plaintiff heard

a loud explosion while inside his house “which rocked his house and threw him around”; he saw

smoke and fire coming from “Defendant[’]s refinery operation”. Id. at ¶¶ 3-4. “The explosion

and fire was two blocks from [Plaintiff’s] house” and “[a]s a direct and proximate result of the

explosion, [Plaintiff’s] chimney was dislodged and he sustained injuries to the left side of his

body.” Id. at ¶¶ 5-6.

STANDARD OF REVIEW

In reviewing a motion to dismiss, the Court tests the complaint’s legal sufficiency. “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court is

required to accept the factual allegations stated in the complaint as true, while viewing the

complaint in a light most favorable to the non-moving party. Westlake v. Lucas, 537 F.2d 857,

858 (6th Cir. 1976). The complaint “must contain either direct or inferential allegations

respecting all the material elements to sustain a recovery under some viable legal theory.” Scheid

v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (quotation marks

omitted). A party must make “a showing, rather than a blanket assertion of entitlement to relief”

and “[f]actual allegations must be enough to raise a right to relief above the speculative level” so

that the claim is “plausible on its face.” Twombly, 550 U.S. at 555. “A claim has facial

plausibility when the party pleads factual content that allows the court to draw the reasonable

inference the defendant is liable for the alleged misconduct.” Id. at 556; Iqbal, 556 U.S. at 678.

However, the Court is “not bound to accept as true a legal conclusion couched as a factual

allegation”. Id. (quoting Twombly, 550 U.S. at 555).

DISCUSSION

Defendant moves to dismiss both Counts of Plaintiff’s Complaint, arguing neither

contains sufficient factual allegations to support a cause of action. (Doc. 4).

Count One: Negligence

Defendant moves to dismiss Count One on the basis that Plaintiff has failed to plead any

facts supporting “a specific duty that Toledo Refining Company owed to Plaintiff” or “what

action [Defendant] took or failed to take that was negligent in causing the alleged explosion or

any condition that allegedly created an unreasonable risk of harm that was negligently

maintained by [Defendant].” (Doc. 4, at 4). Plaintiff responds, arguing the Complaint “clearly

contains alleged facts that the instrumentality of harm was an explosion at the refinery which

was evidenced by smoke and fire immediately thereafter.” (Doc. 5, at 4). He contends that “[t]his

evidence is sufficient to trigger the res ipsa loquitor [sic], placing the burden of proof on the

Defendant to show evidence that it did not control the instrumentality of harm”. Id. He further

argues that “[i]n any case, sufficient facts coupled with the inference are pleaded to survive the

motion to dismiss.” Id. Defendant replies that res ipsa loquitur is an evidentiary rule not

applicable at the pleading stage, and even if it were, Plaintiff has not established his entitlement

to it. (Doc. 6)

To state a claim for negligence under Ohio law, a plaintiff must assert “(1) the existence

of a legal duty owed to the injured party, (2) the defendant’s breach of that duty, and (3) that an

injury proximately resulted from the defendant's breach of duty.” Snay v. Burr, 167 Ohio St. 3d

123, 126 (Ohio 2021) (citing Mussivand v. David, 45 Ohio St. 3d 314, 318 (1989)). “A

defendant’s duty may be established by common law, legislative enactment, or by the particular

facts and circumstances of the case.” Chambers v. St. Mary’s Sch. 82 Ohio St. 2d 563, 565 (Ohio

1998).

As to Count One, Plaintiff’s Complaint asserts:

7. Mr. Cole incorporates his allegations in Paragraphs 1 through 6 as if fully

rewritten.

8. On or about November 23, 2021, the Defendant owed to neighboring property

owners like Mr. Cole a duty to maintain a safe refining process at its plant.

9. On that same date, the Defendant failed to comply with its duty of care to Mr.

Cole as a neighboring property owner.

10. As a direct and proximate result of the Defendant’s failure to comply with its

duty of care, Mr. Cole sustained property damages, physical injury, pain and

suffering, incurred medical expenses, interference with his ability to perform

usual, pleasurable activities, and possibly permanent disability.

(Doc. 1-1, at ¶¶ 7-10).

Although Defendant is correct that the invocation of res ipsa loquitur does not render an

otherwise conclusory pleading sufficient, the Court finds the facts asserted in Plaintiff’s

Complaint sufficient to avoid dismissal of his negligence claim. Plaintiff states he was in his

home two blocks away from the refinery when he “heard a loud explosion . . . which rocked the

house and threw him around contacting articles and walls inside” and that he saw smoke and fire

coming from the refinery. Id. at ¶¶ 3-4. These facts, and the reasonable inferences drawn

therefrom, are sufficient to state a plausible negligence claim at this juncture. Cf. Paulus v.

Citicorp N. Am., Inc., 2013 WL 5487053, at *8 (S.D. Ohio) (“Taken as true, the allegations lead

to inferences of a duty (for Citi, as a nearby landowner, not to use its ‘property in such a manner

that [it] unreasonably disturb[s][its] neighbors,’ Sakler [v. Huls], 20 Ohio Op.2d 283 [Ohio Ct.

Comm. Pleas.]”); Ronemus & Heath Co., LPA v. We're Jammin, Inc., 2005-Ohio-4836, ¶¶ 15-16

(Ohio Ct. App.) (“It is a general principle of law that every person may make such use as he or

she will of his or her own property, provided such person uses it in such a manner as not to injure

the rights of others or the rights of neighbors.”) (quoting 70 Ohio Jurisprudence 3d (2004) 75-75

Negligence § 18); Hine v. Eikler, 19 Ohio App. 510, 514 (Ohio Ct. App. 1923) (“We know of no

law which would excuse any person from the duty to so use his property as not to injure

others.”).

Count Two: Trespass

Defendant similarly moves to dismiss Plaintiff’s trespass claim. (Doc. 4, at 5-7). It argues

Plaintiff has failed to allege any intentional act or substantial damage as is necessary to raise an

indirect trespass claim. The Court finds this Count must be dismissed.

To state a traditional claim for trespass, a plaintiff must allege “(1) an unauthorized

intentional act, and (2) entry upon land in possession of another.” Brown v. Scioto Bty. Bd. of

Commrs, 622 N.E.2d 1153, 1161 (Ohio Ct. App. 1993). Defendant notes Plaintiff seems to be

alleging an indirect trespass claim based on vibrations caused by an explosion. See Doc. 4, at 5-

6; Doc. 1-1, at ¶ 3 (asserting an explosion “rocked the house”). Ohio courts have recognized such

indirect trespass claims. See, e.g., Colegrove v. Fred A. Nemann Co., 2015-Ohio-533, at ¶ 36

(Ohio Ct. App.) (indirect trespass claim based on vibrations from sewer pump construction). One

Ohio appellate court described the elements of such a claim as: “(1) an invasion affecting an

interest in the exclusive possession of his property; (2) an intentional doing of the act which

results in the invasion; (3) reasonable foreseeability that the act done could result in an invasion

of plaintiff’s possessory interest; and (4) substantial damages to the res.” Hager v. Waste Techs.

Indus., 2002-Ohio-3466, ¶ 41 (Ohio Ct. App.). “Intentional conduct is an essential element of

trespass.” Merino v. Salem Hunting Club, 2008-Ohio-6366, ¶ 44 (Ohio Ct. App.) (granting

summary judgment where plaintiff failed to provide evidence a hunting club intentionally

allowed stray bullets to reach his property).

In opposition, Plaintiff appears to state he is asserting a “traditional trespass claim”, but

he does not identify any physical intrusion. And, although he responds to Defendant’s argument

regarding the nature of the injury and damages, he does not respond to Defendant’s argument

that the Complaint fails to identify any intentional act. See Doc. 5, at 4.

As to Count Two, Plaintiff’s Complaint asserts:

11. Mr. Cole incorporates his allegations in Paragraphs 1 through 10 as if fully

rewritten.

12. On or about November 23, 2021, the Defendant owed Mr. Cole a duty to not

trespass through the operation of its facility onto his property and cause harm.

13. On or about that same date, the Defendant failed to comply with its duty and

trespassed onto Mr. Cole’s property causing property damages and physical

injury.

14. As a direct and proximate result of the Defendant’s failure to comply with its

duty of care, Mr. Cole sustained property damages, physical injury, pain and

suffering, incurred medical expenses, interference with his ability to perform

usual, pleasurable activities, and possible[] permanent disability.

(Doc. 1, at ¶¶ 11-14).

The Court agrees with Defendant that Plaintiff has not pled facts to support any

intentional action. Nor does Plaintiff’s opposition to Defendant’s motion identify any such facts.

See Doc. 5. Moreover, the Court agrees with Defendant that “a fair reading of Plaintiff’s

Complaint leads to an inference that the alleged explosion was entirely unforeseeable.” (Doc. 4,

at 6). Thus, regardless of whether it is pled as a traditional trespass claim, or an indirect trespass

claim, such a claim must be dismissed. To the extent Count II uses the language of negligence

(“duty”, “breach”, “causation”), it seemingly restates the negligence claim in Count I, which, as

stated above, will be permitted to proceed.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendant’s Motion to Dismiss (Doc. 4) be, and the same hereby is,

GRANTED IN PART and DENIED IN PART as set forth herein.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE