and fifteen professor ma was dining with her students at oberlin college when a heavy movable partition that was unsecured to its track a movable wall fell on her head and she was severely injured she suffered permanent brain damage and as a result it ended the teaching career that she loved so much the dining hall as we know was operated by bone appetite under a management agreement  with oberlin college that had been in effect for many years and we respectfully submit that there was ample evidence in the record which when viewed in a light most favorable to the plaintiffs would permit a jury to find th not promised liability you say the duty arises from the contract well that they did occupy the premises your honor they had as it were does the duty come from if it's not promise liability if not from a lease where is that the duty it is premises liability because they had sufficient control and occupancy of the premises as if they were a lessee of the of the premises they had the point is a jury could find and that their control and occupancy of the and the duties under the contract that were imposed upon them to take care of the premises that they occupied and controlled i think the contractual language to which you refer that a family of his that duty because yes because they had  hall for dining halls that's important it granted them the exclusive right to perform the food service operation on the premises it's it gave them the keys they had the right to open in the duty to open the dining hall in the morning and admit the people and they had the duty to close the dining hall at night and to exclude everyone who was no longer permitted to be there they had to there's language that says they had to quote take reasonable and proper care of the premises and equipment under its custody and control there was a in several places they refer to their occupancy of the premises they weren't exclusively the occupant the the university did retain its right to enter the premises as well i don't dispute that but that doesn't mean that bone appetit didn't occupy the premises from morning to night they had to obtain all the loot food service licenses there was a provision in the contract that specifically said they were responsible for housekeeping and sanitation in food preparation customer traffic areas storage and serving areas they were obligated to that different than maintaining the structure of the dining hall and i mean having a duty to maintain the equipment in the dining hall is one thing but these sliding partitions are part of the structure and we're i mean we're in the contractor they're responsible for the physical structure of that ideal because the testimony was understood by all their management personnel that if they observed a problem with any of those structural areas they had a duty to immediately report it to oberlin they did they did that did they not yes yes because they had a duty to do so they satisfy their duty to they not well that no no your honor they reported it and they were not obligated i don't think they were even empowered to fix the structure there were a number of things that they had the opportunity to do that would have prevented this accident number one they could have asked or directed the facilities department to move day that's a legal conclusion you that's an improper question to ask an employed did you have a legal duty and i don't know why but what they say wasn't that's not that's not even miscible evidence i mean really well they testified that this is what they did every and if they noticed something that was dangerous or that was a safety hazard they would immediately take action to either correct it themselves if they had the power to do so or they would immediately report it to oberlin college through a work order directing oberlin college to fix it now they testified that they saw this partitioned leaned up against the wall in this private dining area every day for about three weeks they testified that they could have directed the oberland facilities to remove it and place it in the closet in the storeroom but they did not do that they testified that they had the power and duty to to put up warning signs when they when a warning sign was needed they could have put up and they had access to warning signs and they could have put up a warning sign that says do not touch this don't stand it back upright and then finally their marketing manager and dietitian actually saw the partition propped back up unanchored to the track wow the professor ma and her students were dining at the table and he sat there for five or ten minutes and he could easily have appreciated the danger immediately going into that room and pointed out that that movable wall was dangerously propped up an anchor it unsecured could have done it but did he have a duty to do it we submit that he did because they had a sufficient control of the premises throughout there because of their contract and their duties and their management responsibilities to operate the dining hall that yes they had a premises liability situation it isn't as if you can't have more than one party responsible for the premises you can you can have more than one the in and oberlin college didn't open up the dining room every day oberlin college didn't inspect the dining room every day it was left to bone up a teet to open it up and to inspect the dining room and if and if they saw something they were the ones who had the duty to report it to oberlin college because if they didn't report it it would know the danger would persist there's something in the record that the day of the incident this protection was moved again yes to a new position that was even more dangerous than the that they knew it had been moved yes yes there their marketing manager and dietitian management personnel was seated in the dining room facing that partition for five to ten minutes and he saw it fall on professor ma and he testified that yes he saw that it had been back up upright and still was not anchored to its track so he had the final opportunity to prevent this terrible injury when he saw that wall precariously positioned in such a way that it could easily totter over as it did and he saw the fact that a student sitting on the other side of the wall leaned up against it with his chair and it immediately toppled over and fell on professor ma's head so yes the last person who had an opportunity to prevent this terrible injury was the managing marketing director and dietician of boehner who saw the whole thing happened and did nothing to warn anyone or to take action because of the dangerous situation that he observed about this this wall  that fell on her head the the issue generally as is the appellate he says of whether you can be liable for premises liability turns in part on whether you had the right to admit or exclude patrons they say well the college determined who would be allowed to enter the dining hall in terms of being served but that isn't the whole story the evidence is clear that the only keys to open the dining hall other than oberlin which didn't open the dining hall was blown up or to eat and at five thirty in the morning they would come in they'd open up the dining hall they bundle of rights and obligations that bone upper teeth had that i've catalogued that arise under their management agreement to operate and manage this business but you have to look at them al suppose you see it's a question for the jury that's the point or this was a summary judgment the facts that the appellee wants to rely upon let them argue it to the jury and we'll argue our facts but summary judgment was inappropriate  because if you view the evidence in the light most favorable to the plaintiffs the case needs to go to the jury we're not saying that the jury's automatically going to rule in our favor we don't know but we're entitled to having jury decide it not the district court as a that put them in occupancy of the premises and operating this business that would permit a jury to find that they had a duty of care to the patrons including professor macquarie doesn't find duty do they i mean  an issue of law well except that the judge would instruct the jury the jury the in order for the plaintiff to prove that there was a duty the plaintiff has to prove x y and z and if there's a dispute of fact as to what what x y and are and whether so then the jury would decide the dispute of fact as to as to whether oberlin had sufficient control ok so what what genuine issues of material fact are there that the jury would resolve on the issue of control all of them you know what the bundle of rights under occupancy their their duties the fact they supervise the new duties as issue of the law i mean rights it seems like that's an issue of law too that you can look at the contract i don't think you have a jury do that i mean what factual issues would would you have a jury resolve where for example whether in fact  evidence would permit the conclusion that bone appetite had the right to admit or exclude which is one of the issues that can be taken into account in determining whether a duty is owed so we say there is plenty of evidence that would permit a jury to find that bone that bone appetite had the right to admit and exclude and they claim that there were they claim the opposite the jury needs to decide between those competing arguments and facts which version to accept thank you your any further questions that you are i'm you'll have a three minutes rebuttal of your good morning good morning from the pain case on the issue of duty your honor i don't normally like to read quotation relate or evelyn yes your honor the existence of a duty is a question of law even if resolving it requires the court to consider facts and evidence that's from one thousand and eighty five dollars of the pain case decided under ohio law in two thousand and seventeen so the court is correct duty is always a question of  the court even if you have to examine some underlying facts and evidence and what the appellant asked the court to do in this case would run contrary to all precedent of this court and in the state of ohio which would be to take a contractor and impose affirmative duties that only exist in special relationships like a like a promise liability scenario and even though the contract the no and the reason they don't have the power to fix it the remedy for it is to take a fixture that is owned by the college on their premises and repaired and from a policy perspective th and that's exactly why courts draw lines on when in tort law this isn't a case where somebody acted unreasonably and their conduct caused harm they're asking this court to impose an affirmative delineated as to who is responsible for it i suppose anybody could have moved it to the power to do that under the contract is delegated i think both i think in this case it's one in the same and particularly when you view it through the lens of ohio law of promise liability and when you're going to impose an affirmative duty like this you look to two things do you have the legal power the control over the premises to do that and the answer to that is no in the starting point for that analysis as this court found and washburn and all the state substantive law finds is does the least delegate to in this case not even the lessee but a contractor the power to do that the answer is no even if the answer to that were yes is there any record evidence to show that they substantially exercised that power and the answer to that is clearly no and they really haven't even put forth any evidence at the rule fifty six standard to try and meet that obligation we've got the terms of the lease we've got the bone appetite employees who said once we report this we can't do anything with this and finally and it's not been addressed but no depositions were taken of the college and an unrefuted affidavit from the dean of students who had the supervisory power to administer this contract so said bone appetite as our contractor has never had the power to admit or deny people into the nothing more not nothing more under the facts and circumstances of this case and that is one of those areas of law where public policy intervenes and says there is a line at which we're going to draw a boundary between your obligation to affirmatively act to protect others that's an exception to the general rule that there is no affirmative duty to act to protect others there is an affirmative duty not to  to commit malfeasance to act negligently and harm someone else but it's only in special relationships where tort law imposes an obligation to act or protect others and so under the facts and circumstances of this case in ohio law in this court's opinion interpret in ohio law under washburn that's it that's where that public policy line is drawn now if as some of the questions implied it might be a very different case had the plaintiffs come forward with evidence to show that bone appetit and its employees committed an affirmative act that led to the damages and injury here had somebody decided you know we're just going to in order to help the landlord with getting this repaired we're going to set this right here so that it's right there ready for him and we put it in a precarious situation and we created a risk that's a different location that it was moved that morning of the them agreed and that makes logical sense too because they're the ones who are empowered and in fact required under promise liability law to maintain a safe environment for invite their on their premises about their argument that your employee was sitting there having lunch with the plaintiff and either saw it or could have seen how it was improperly installed and therefore somehow had a duty to act within those minutes but how do you respond to that the response is that doesn't in any way speak to promise liability law and the imposition of duty the imposition of a duty under a promise liability standard is do you have control twelve did you substantially exercise that control otherwise there's no duty again and it starts with what the district court analyzed very thoroughly in the opinion the starting point is do we have a scenario where there's active negligence that causes someone harm or sort of the ed very least you could you have warned of a danger that you were aware of even though you may not have had the authority to do anything about it that all falls back to the same starting point on duty in this scenario the claim it is shoe is a premise liability claim and under promise liability law to have that affirmative obligation to to maintain a safe space for invitees the test remains the same no matter how you argue the theory a that the duty originates begins and ends with the idea of control and substantial exercise of that control and regardless of the case here and i think that's also borne out in the washburn case the washburn case that this court decided had various negligence claim it wasn't just a promise liability claim they had a negligence per se and a couple of other negligence theories but the origin of the duty still had to arise from the duty to safely maintain a promise and the two defendants who obtain summary judgment that was affirmed by this court this court found that neither passed the control test so again whether it's a failure to warn negligence per se whatever the tort theory in this context the obligation to take affirmative acts to protect someone begins and ends with the control test and from a legal standpoint they haven't met it under the terms of the lease there is a provision that refutes control and on substantial exercise of that power we would submit to the court they haven't even offered any evidence to support substantial exercise and in fact all of the evidence from oberlin which they could have taken to thirty six deposition they could have the post anyone associated with that contract and oberlin says yeah that was our responsibility we missed on this one but that was our responsibility i would conclude by pointing out to distinctions between the mon in case and freiburg are which are heavily cited by the appellant and in those cases the duty related to the exact instrument of harm that ended up damaging the plan of so in in private or it was the lake level the homeowners association had control over patrolling the water and controlling the lake level someone dove in the water it was shallow there was an injury they had control over the instrumentality of harm the same is true of mon and where you have a bank and some of its parent companies the parent companies dictate safety and security to the branches and so they had control over the instrumentality of harm the opposite is true here were a commercial lease to us or a commercial contract where we're not even a lessee work contractor says you can't maintain our fixtures and so those cases if anything are to political but support our position here because we have no control over the instrumentality of harm and if there are no further questions i would rest on the on the briefs and they are today and ask the court affirmed thank you so if you wanted to have that panel stored in a closet or store room while there was a fall break going on you could have immediately put in a work order said it's an emergency and asked somebody from facilities to come in and move it to a safe place to store it you could have done that correct answer yes question but you didn't did you know they could have had it stored in a in a store room exactly and the fact of the matter is they operated a business from those premises they got paid to operate that dining hall they were in control of it there were plenty of facts that would permit a jury to find that they occupied and controlled the premises and if you take their argument to its logical conclusion if they have no duty to any of these patrons they don't have to do anything there's a broken chair to badmouth the guy sit on it they say this is a fixture it's not a chair i don't think would be a fixture of the building and they say you know  you know the walls the roof the ceiling and these partitions are attached to the building and it's different than spilling water on the floor or broken share this a nonfiction related well except that they had enough control of the premises that they observe the broken fixture and they're the ones who reported it now under their theory they didn't have to report it they saw this broken fixture hanging they should or they could have just sat there and waited until it fell on somebody and never notified oberland that this danger existed because they did report it though did they not but yes but their argument is they had no duty to do so because that's just hypothetical i mean we're talking about this case whether or not they had a duty to report you say they did they say they didn't they did report it yes so they sat is even if you're correct there they satisfy that do so how do you how do you how do you win that because then they had other duties that other negligence that they committed they could have put a warning sign on it they could have moved it into a storage room missed the dietician could have could have come up there and said watch out this is a dangerous thing that's about to fall on you all three of those things are expert said was the standard of care in this kind of a in this kind of a setting so these are all jury questions i understand the duty ultimately is a legal question but it the question of whether or not they had sufficient occupancy control and the management of that dining room that's a legal question i mean what the fact what we say or do they don't just there's no dispute they didn't put warning signs out there's no dispute as t other facts i think i mean well they're disputing that we had any control over the dining hall and we and we have facts that say we occupied the dining hall just like just like a lessee would for example you know the t in possession in a business if he sees a broken fixture he has to call the landlord but he still has a duty of care to his patrons thank you very much thing else for the questions thank you