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Portage County poison garden dispute partially reversed
TRACEY BLAIR
Legal News Reporter
Published: January 21, 2022
A husband and wife each filed separate lawsuits accusing their neighbor of discharging a poisonous substance on their property.
A Portage County judge granted the neighbor’s motion for summary judgment on each claim – trespassing, negligence and criminal damaging.
Plaintiff-appellant, Kathy Hammonds, appealed the trial court’s entry granting summary judgment in favor of defendant-appellee, Jack Bowman. Her husband, Peter Machlup, made similar arguments in his case against Bowman. The spouses’ lawsuits were consolidated but proceeded separately on appeal.
The 11th District Court of Appeals recently affirmed summary judgment on the negligence and criminal damaging claims but ruled that summary dismissal of trespass was error in both cases because there is a genuine issue as to the material facts.
Hammonds and Bowman own adjacent property in a residential neighborhood. Hammonds alleged Bowman sprayed a store bought hermicide onto her yard, including the garden area, causing personal injury, property damage, loss of quiet use and enjoyment and economic loss.
In her first assigned error, Hammonds argued genuine issues of material fact exist that preclude summary judgment on her claim of trespass.
In granting summary judgment, the trial court wrote that “Machlup agreed that the lawn care product was not directly sprayed on his property”; “Machlup testified that Bowman indirectly sprayed onto Plaintiffs’ property”; and “There is no proof that Bowman sprayed any sort of poison * * * intentionally and directly onto plaintiffs’ property.”
However, Hammonds argued those were misstatements of fact, not supported by the record and contradicted by the deposition testimony. The appellate court concurred.
“While Machlup agreed that Bowman did not directly spray his person, Machlup testified that he and Hammonds’ daughter both witnessed Bowman spraying the herbicide directly onto their property, causing Machlup to immediately confront Bowman,” appellate judge Thomas R. Wright stated in his 3-0 opinion.
According to court testimony, Machlup confronted the neighbor after seeing him spray his vegetable beds about three feet from the property line on June 25, 2019.
“So I walked out through the poison water, walked up to Jack and said, ‘Stop spraying poison onto our food. Stop spraying our yard. You’re poisoning our food.’ And he said in response, ‘I’ve had enough of your plants,’ “ Machlup testified.
Bowman said he used weed control from Lowe’s, on his own property, and repeatedly denied spraying Hammonds’ property. In his motion for summary judgment, Bowman argued there is no evidence of an intentional act and therefore no trespass.
“In making this argument, he repeatedly ignores the first part of Machlup’s testimony as well as Hammonds’ testimony,” Judge Wright stated. “The trial court echoed this omission. On de novo review of the deposition testimony, viewed most strongly in favor of Hammonds as the nonmoving party, reasonable minds could conclude that Bowman did intentionally cause the herbicide to enter Hammonds’ property. Because this is a genuine issue of material fact that remains to be litigated, Bowman is not entitled to summary judgment as a matter of law on Hammonds’ claim of trespass.”
Eleventh District judges Mary Jane Trapp and Matt Lynch concurred. Hammonds’ case is cited Hammonds v. Bowman, 2021-Ohio-4369.
The same three judges also reviewed Hammond’s husband’s appeal, Machlup v. Bowman, 2021-Ohio-4370.
Machlup alleged Bowman sprayed a store-bought herbicide onto his tall grasses along the shared property line and his garden of medicinal herbs and food plants.
Although the trio once again affirmed the trespassing assignment of error, the appellate panel disagreed with Machlup’s argument that Bowman is civilly liable for damages.
“Although the trial court again omitted reference to relevant portions of Machlup’s testimony and entered summary judgment on different grounds, we conclude summary judgment was appropriate on the claim of negligence per se,” Judge Wright wrote. “On summary judgment, however, Machlup provided no evidence of damage to the grasses or the garden. At oral argument before this court, Machlup admitted that there was no change to the aesthetic of his garden, and when asked if the tall grasses died after the alleged actions of Bowman, Machlup responded that he did not know.”
Both cases were remanded to the trial court for further proceedings consistent with the appellate court’s opinion.