Brown v. Reading Community School Dist. Bd. of Edn.

[Cite as Brown v. Reading Community School Dist. Bd. of Edn., 2025-Ohio-2757.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STEPHEN BROWN : APPEAL NO. C-240646

TRIAL NO. A-2103186

and :

ANDRA BROWN, :

Plaintiffs-Appellants, : JUDGMENT ENTRY

vs. :

BOARD OF EDUCATION READING :

COMMUNITY SCHOOL DISTRICT,

:

SHOOK TOUCHSTONE XV, LLC,

:

CHARLES F. JERGENS

CONSTRUCTION CO., INC., :

and :

VOORHIS, SLONE, WELSH, :

CROSSLAND ARCHITECTS, INC.,

:

Defendants-Appellees.

:

This cause was heard upon the appeal, the record, the briefs, and arguments.

The judgment of the trial court is affirmed for the reasons set forth in the

Opinion filed this date.

Further, the court holds that there were reasonable grounds for this appeal,

allows no penalty, and orders that costs are taxed under App.R. 24.

The court further orders that 1) a copy of this Judgment with a copy of the

Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial

court for execution under App.R. 27.

To the clerk:

Enter upon the journal of the court on 8/6/2025 per order of the court.

By:_______________________

Administrative Judge

[Cite as Brown v. Reading Community School Dist. Bd. of Edn., 2025-Ohio-2757.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STEPHEN BROWN : APPEAL NO. C-240646

TRIAL NO. A-2103186

and :

ANDRA BROWN :

Plaintiffs-Appellants, : OPINION

vs. :

BOARD OF EDUCATION READING :

COMMUNITY SCHOOL DISTRICT,

:

SHOOK TOUCHSTONE XV, LLC,

:

CHARLES F. JERGENS

CONSTRUCTION CO., INC., :

and :

VOORHIS, SLONE, WALSH, :

CROSSLAND ARCHITECTS, INC.,

:

Defendants-Appellees.

:

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 6, 2025

Law Office of John H. Forg and John H. Forg, III, for Plaintiffs-Appellants Stephen

and Andra Brown,

Ennis Britton Co., LPA, William M. Deters, II and Ryan M. LaFlamme, for Defendant-

Appellee Board of Education Reading Community School District,

Teetor Westfall, LLC, Scyld D. Anderson and Lee W. Westfall, for Defendant-Appellee

Shook Touchstone XV, LLC,

Gallagher Sharp LLP, Steven A. Keslar, Phillip T. Kelly, P. Kohl Schneider and

Richard C.O. Rezie, for Defendant-Appellee Charles F. Jergens Construction Co., Inc.,

Gordon Rees Scully Mansukhani LLP, Bruce Moore and Gregory D. Brunton, for

Defendant-Appellee Voorhis, Slone, Walsh, Crossland Architects, Inc.

OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Presiding Judge.

{¶1} Plaintiffs-appellants Stephen and Andra Brown (“the Browns”) appeal

the judgment of the Hamilton County Court of Common Pleas granting summary

judgment in favor of defendants-appellees Board of Education Reading Community

School District (“Reading School District”); Voorhis, Slone, Welsh, Crossland

Architects, Inc. (“Voorhis”); Shook Touchstone XV, LLC (“Shook”); and Charles F.

Jergens Construction Co., Inc. (“Jergens”) (collectively, “the defendants”). The

Browns sued the defendants for alleged negligence during the construction of new

school buildings uphill from the Brown’s home. They contend that the removal of trees

and the subsequent installation of plastic fencing proved insufficient to stop the flow

of water downhill during rainstorms, causing damaging flooding into their residence.

{¶2} The trial court granted the defendants’ summary judgment motions for

two reasons. First, the trial court determined that the Browns filed their complaint

outside the four-year statute of limitations for negligence claims contained in R.C.

2305.09(D). Second, the trial court held that the Browns could not establish that the

defendants breached the applicable standard of care, because they did not supply an

expert familiar with construction standards. In addition, the trial court granted

Jergens’ summary judgment motion on the additional basis that a settlement

agreement between Jergens and the Browns precluded any future claims arising from

the construction project.

{¶3} In this appeal, the Browns challenge all three aspects of the trial court’s

decision. However, because the failure to disclose an expert on the standard of care

was fatal to the Browns’ claim, and because the Jergens settlement agreement

foreclosed future claims for damages against Jergens, we reject the Browns’ arguments

and affirm the judgment of the trial court.

OHIO FIRST DISTRICT COURT OF APPEALS

Factual and Procedural History

{¶4} The Browns own and reside in a residential property (“the Browns’

property”) located downhill from a complex of buildings owned by the Reading School

District (“the school complex”). In 2015, the Reading School District decided to tear

down and rebuild some of the buildings at the complex. It hired Voorhis to design the

project and Shook and Jergens to perform construction and demolition functions. The

project commenced at the end of the 2016-2017 school year.

{¶5} During the construction in 2017, several trees that had previously

separated the Browns’ property from the school complex were removed. The

Environmental Protection Agency (“EPA”) subsequently inspected the project and

issued a “stop work” order in part over concerns about the lack of erosion control

measures in place on the site. To retain any potential water runoff, it recommended

the implementation of such measures on the side of the hill leading down to the

Browns’ property from the school complex. Plastic fences were later erected on the

hill above the Browns’ property.

{¶6} Nevertheless, at several points during the construction, rainwater

intruded into the Browns’ home. In June 2017, prior to the installation of the fences,

water seeped into the Browns’ basement. And in October 2017, during a much heavier

rain event, the Browns’ basement essentially flooded, causing more extensive damage

to their home and landscaping.

{¶7} In February 2018, shortly after the October 2017 storm, the Browns

entered into a settlement agreement with Jergens, in which Jergens paid the Browns

$8,700.00 in exchange for the release of all current and future claims related to the

flooding.

{¶8} The Browns then sued the defendants for negligence on September 13,

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OHIO FIRST DISTRICT COURT OF APPEALS

2021. Their complaint alleged that the defendants disregarded their duty to protect

the Browns’ property during the construction project. They contended that the

defendants should have erected both an earthen berm around the existing property

and a swale to direct flowing water into existing channels as preventative measures

against downhill flooding. They also took issue with the failure of the fences to contain

the rainwater during the October 2017 storm.

{¶9} Discovery then commenced, and the Browns were separately deposed.

In her deposition, Andra testified that water began infiltrating their home after the

defendants demolished the existing buildings and removed the trees that stood

between their property and the school complex. This first occurred in June 2017, when

she noticed a large stream of water flowing down the hill. The water entered the

Browns’ home, damaging the carpet in their finished basement.

{¶10} During her deposition, Andra was asked to identify a notice of violation

sent from the EPA on July 17, 2017. The notice indicated that the school project had

been inspected on June 23, 2017, and that it violated storm water discharge guidelines

associated with construction activity. Andra was also asked about a “stop work” order

issued by the EPA’s safety service director on August 1, 2017, which immediately

halted construction on the project. Andra testified that, around August 4, 2017, the

defendants installed plastic fences or mulch berms consistent with the EPA’s

recommendations. Andra was unclear as to which defendant was responsible for

erecting the fences.

{¶11} Andra further testified that a large rain event took place in October

2017, after the fences were installed. Rainwater spilled over the fences and ran onto

the Browns’ property, damaging the landscaping and basement. Andra identified

photographs depicting the flooding and the damage, which were marked as exhibits to

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OHIO FIRST DISTRICT COURT OF APPEALS

her deposition. According to Andra, water continued to infiltrate the property through

November 2017 each time it rained.

{¶12} Andra testified that a swale was constructed in the spring of 2018 to

address the flooding. She further indicated that the water infiltration stopped once

the school parking lot was completed and the curbs were erected.

{¶13} Stephen was deposed the same day as Andra. His deposition testimony

was consistent with hers.

{¶14} In addition to being deposed, the Browns disclosed an insurance

adjuster, Jason Monday, as their sole expert witness. From the record, it appears as

though Monday was the adjuster who assessed the damage to the Browns’ property

following the flooding. Monday did not provide an expert report.

{¶15} Following discovery, all defendants moved for summary judgment on

essentially identical bases. The defendants contended that the Browns’ complaint

should have been filed by June 2021, four years after the initial water intrusion began

in June of 2017. Because the complaint was not filed until September of 2021, the

defendants argued it exceeded the four-year statute of limitations for negligence

claims set forth in R.C. 2305.09(D). The defendants also argued that the Browns

lacked an expert witness to explain the standard of care for a construction project like

the one undertaken by the Reading School District. Absent an expert to explain how

the plastic fencing or its installation was somehow defective, the defendants argued

the Browns could not prove the essential elements of negligence.

{¶16} The Browns responded to the motions for summary judgment, arguing

that their complaint was filed within the statute of limitations because they sued

within four years of the October 2017 storm. They also contended that they were not

aware of the fences’ negligent installation until they failed to prevent water from

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OHIO FIRST DISTRICT COURT OF APPEALS

entering their property. Regarding expert witnesses, the Browns argued that experts

were not necessary to establish the standard of care, because the fact that the water

breached the fences and the resulting damage could readily be understood by a

layperson.

{¶17} On October 8, 2024, the trial court granted the defendants’ motions for

summary judgment. As to the statute of limitations, the trial court determined that

the Browns discovered the water damage in June 2017 and had four years to file suit

from that date. Because they waited until September 2021 to sue, the Browns’ claim

was time-barred. The trial court also agreed that the Browns could not prove negligent

construction and design without an expert to establish the standard of care. Lastly,

the trial court interpreted the settlement agreement between the Browns and Jergens

to include all future claims arising from the school project, thereby precluding the

Browns’ current suit against Jergens.

{¶18} The Browns now appeal.

Summary Judgment

{¶19} In their sole assignment of error, the Browns argue that the trial court

erred in granting the defendants’ summary judgment motions. The Browns raise three

specific issues with the trial court’s judgment. First, the Browns argue that their

complaint was filed within the four-year statute of limitations contained in R.C.

2305.09(D) because the intrusion of water into their property constituted a

continuous violation. Second, they argue that a layperson could readily ascertain the

defendants’ negligence in failing to prevent flooding on their property, rendering

expert testimony unnecessary. Third, they argue that the trial court erred in broadly

construing the Jergens settlement.

{¶20} We review summary judgment decisions de novo. Al Neyer, LLC v.

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OHIO FIRST DISTRICT COURT OF APPEALS

Westfield Ins. Co., 2020-Ohio-5417, ¶ 13 (1st Dist.). Summary judgment is proper

under Civ.R. 56(C) where “(1) no genuine issue of material fact remains, (2) the

moving party is entitled to judgment as a matter of law, and (3) it appears from the

evidence that reasonable minds can come to but one conclusion, and construing the

evidence most strongly in favor of the nonmoving party, that conclusion is adverse to

the party against whom the motion for summary judgment is made.” Id. at ¶ 14, citing

Civ.R. 56(C). The moving party has the initial burden of informing the court of the

basis for the motion and identifying the portions of the record that set forth specific

facts demonstrating entitlement to summary judgment. Id. at ¶ 15.

A. Expert Testimony

{¶21} Although the Browns begin their argument with the statute of

limitations issue, we first address the trial court’s expert testimony finding, as this

issue is dispositive of the Browns’ appeal. We agree with the trial court that the

defendants were entitled to summary judgment as a matter of law because the Browns

did not support their negligence claim with an expert, regardless of whether the

complaint was timely filed.

{¶22} “To prevail on a negligence claim, a plaintiff must establish (1) that the

defendant owed a duty of care to the plaintiff, (2) that the defendant breached the duty,

and (3) that the defendant’s breach proximately caused the plaintiff’s injuries.” Wood

v. Kroger Co., 2025-Ohio-1385, ¶ 20 (1st Dist.). “Whether a contractor exercises

reasonable care depends upon the standards which others in the profession must

follow.” Riverside Drive Ents., LLC v. Geotechnology, Inc., 2023-Ohio-583, ¶ 21 (1st

Dist.). The same is true of architects. Staph v. Sheldon, 2009-Ohio-122, ¶ 18 (8th

Dist.).

{¶23} “Expert testimony is required to establish the standard of care, unless

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OHIO FIRST DISTRICT COURT OF APPEALS

the lack of skill or care of the professional is so apparent as to be within the

comprehension of a layperson and requires only common knowledge and experience

to understand it.” (Cleaned up.) Riverside Drive at ¶ 21. Where a standard-of-care

expert is required and the plaintiff fails to provide one, summary judgment is

appropriate in favor of the defendant. See, e.g., Anthony v. Turner/Cargile Joint

Venture, 1995 Ohio App. LEXIS 1299 (10th Dist. Mar. 30, 1995) (affirming summary

judgment in favor of architect in suit resulting from building collapse where plaintiff

presented no expert testimony to establish standard of care).

{¶24} Case law fails to identify with precision the exact kinds of information a

layperson can comprehend without expert testimony in a negligence case. But in

general courts have excused the need for a standard-of-care expert when a condition

is easily observable and its risks require no specialized training or knowledge to

understand. See, e.g., Ballard v. K-Mart Corp., 1998 Ohio App. LEXIS 2832, *8-9 (2d

Dist. June 25, 1998) (finding expert testimony unnecessary in a personal injury case

where item was placed on a shelf such that it might fall). On the other hand, courts

require expert testimony to establish the standard of care where the activity at issue

requires particularized training or skill. See, e.g., Filby v. Heffter & Russell LLC, 2018-

Ohio-1333, ¶ 24 (11th Dist.) (observing that that the lack of a qualified expert witness

to establish the standard of care in a legal malpractice action provides a basis to award

summary judgment to the defendant); Dickerson Internationale, Inc. v. Klockner, 139

Ohio App.3d 371, 376-377 (2d Dist. 2000) (affirming trial court’s judgment in favor of

civil engineer defendant because plaintiff failed to present expert testimony

establishing the standard of care).

{¶25} The Browns argue that the condition above their property, in which

water flowed downhill over the plastic fences at the construction site, is of the former

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OHIO FIRST DISTRICT COURT OF APPEALS

variety. They assert that the pictures introduced at Andra’s deposition, which depict

water breaching the fences, would allow a layperson to conclude the defendants acted

negligently. In addition, they contend that the defendants’ fence installation and the

lack of an effective berm and swale during the construction project constituted

negligence. Notably, the Browns do not explain which defendant was responsible for

designing and erecting the fences or whether a different type of water barrier would

have more effectively prevented flooding.

{¶26} Contrary to the Browns’ position, these are matters beyond the ordinary

knowledge of a lay person. While the photographs do support the Browns’ position

that the barriers failed, they do not explain why or whether a stronger barrier would

have withstood the October 2017 storm. Absent specialized training, the average

person lacks the capability to assess whether the measures taken by the defendants to

slow rainwater runoff were sufficient to meet the standard of care. An expert was

therefore required to establish whether the erosion prevention measures taken at the

construction site were reflective of those used by the construction and architectural

industries. Riverside Drive, 2023-Ohio-583, at ¶ 21 (1st Dist.).

{¶27} The trial court therefore correctly awarded summary judgment to the

defendants. Whether timely or not, the Browns’ negligence claim could not be proven

without a standard-of-care expert, which they did not present.

B. The Jergens Agreement

{¶28} The trial court also correctly granted Jergens’ summary judgment

motion. Before the Browns filed suit, Jergens entered into a settlement agreement

with the Browns that resolved all pending and future claims related to the school

project. That agreement was binding as to this action.

{¶29} “[T]he overriding consideration in interpreting a release is to ascertain

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OHIO FIRST DISTRICT COURT OF APPEALS

the intent of the parties, which intent is presumed to reside in the language the parties

chose to employ in the agreement.” (Cleaned up.) Crutcher v. Oncology/Hematology

Care, Inc., 2022-Ohio-4105, ¶ 31 (1st Dist.). “Only when the language of a contract is

unclear or ambiguous will extrinsic evidence be considered in an effort to give effect

to the parties’ intention.” Al-Zubi v. Cosmetic & Implant Dental Ctr. of Cincinnati,

Inc., 2020-Ohio-3272, ¶ 9 (1st Dist.). If the terms are unambiguous, courts will not

create a new contract using an intent not expressed by the clear language between the

parties. Id.

{¶30} The settlement agreement between Jergens and the Browns clearly and

unambiguously released Jergens from all claims for property damage the Browns

might make arising from the project. Entitled “Release in Full of All Claims and Rights

Related to Property Damage,” the settlement agreement discharged Jergens “from any

and all claims and damages resulting from or related to the property damage resulting

from” the construction project, whether “existing or arising in the future.” Its terms

were described as “full and final.”

{¶31} The Browns have failed to explain why the plain language of this

settlement agreement should not be enforced. In fact, they do not dispute that the

terms of the settlement agreement are clear and unambiguous. Instead, they argue

that the settlement agreement only covers damages that occurred prior to its

execution. This belies the scope of the agreement, which expressly covers future

claims. Thus, the trial court did not err in separately awarding summary judgment to

Jergens on the basis that the Browns’ claims against it had already been settled.

Conclusion

{¶32} Because the Browns failed to present an expert to establish the standard

of care, and because the Browns’ claim against Jergens was governed by the settlement

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OHIO FIRST DISTRICT COURT OF APPEALS

agreement, we overrule the Browns’ sole assignment of error and affirm the judgment

of the trial court.

Judgment affirmed.

BOCK and MOORE, JJ., concur.

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