alleging city’s negligence in not installing a lightning protection system on picnic shelter was a concurrent cause of plaintiffs’ injuries, plaintiffs sued city for damages suffered when lightning struck city picnic shelter rented by plaintiffs for a family picnic; trial court held that plaintiffs’ injuries were caused by an act of God and granted summary judgment for the city; supreme court reversed and held that the city could be held liable even if some other cause concurred with the city’s negligence in producing plaintiffs’ injuries
How later courts described this case
- alleging city’s negligence in not installing a lightning protection system on picnic shelter was a concurrent cause of plaintiffs’ injuries, plaintiffs sued city for damages suffered when lightning struck city picnic shelter rented by plaintiffs for a family picnic; trial court held that plaintiffs’ injuries were caused by an act of God and granted summary judgment for the city; supreme court reversed and held that the city could be held liable even if some other cause concurred with the city’s negligence in producing plaintiffs’ injuries
Written by the judges who cited it.
The opinion
Holmes, J.,
concurring. In that governmental tort liability of municipalities has been abrogated by this court, I must accept the fact that an action claiming damages under the circumstances sub judice may be entertained. Upon a motion for summary judgment, in this type of case certain issues must be properly raised by the plaintiff as to the duty of the city under the facts of the case, the breach of such duty, the nexus of the breach to the claimed effect, and the injury sustained.
Here, the plaintiffs alleged that there was a duty imposed upon the city of New Philadelphia to install lightning rods or arrestors on the metal-roofed picnic shelter. As to this element, there was an affidavit of a qualified expert *137 submitted by the plaintiffs which stated that it is generally recognized that lightning protection devices placed upon such buildings significantly enhance public safety. Therefore, the issue of the municipality’s duty was properly raised, and there was a showing that there was no such device. Further proof, however, would be required at trial to establish the standards for protection devices upon public shelters. There would, of course, also have to be proof of a breach of any such duty.
Whether the installation of any lightning protection device would have avoided, or lessened, the accident remains a matter of proof. Further, if it is shown that there was a duty, and a breach thereof, the defendants may introduce evidence to prove that the damages would have occurred in spite of any preventive measures taken. Piqua v. Morris (1918), 98 Ohio St. 42 . All facets of the proximate cause issue remain for the trial upon the merits.
In the present case, plaintiffs have submitted affidavits to the effect that lightning struck the picnic shelter in question. The defendants submitted evidence that the lightning had not struck the shelter, but that only some damage to a roof support could be shown. Reasonable minds could clearly differ as to the cause of the accident.
Therefore, upon the stance of this matter before the court on a motion for summary judgment, I cannot state that reasonable minds could come to but one conclusion. Accordingly, I concur with the majority.