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Koch v. Lind6/19/1997
DESHLER, Judge.
This is an appeal by plaintiffs, Wesley Koch and Valerie Koch, from a summary judgment granted by the Franklin County Court of Common Pleas in favor of defendants, Columbus and Central Ohio Regional Multiple Listing Service, Multiple Listing Service of Columbus Board of Realtors, Inc., and Roger Lind, d.b.a. Transamerica Express Systems.
Defendant Roger Lind is the owner of Transamerica Express Systems ("Transamerica"), a delivery service. Transamerica has an oral contract with defendant Multiple Listing Service of Columbus Board of Realtors, Inc., to deliver multiple listing service ("MLS") directories to realtors in the central Ohio area. The MLS directories (also referred to as "MLS books") are delivered on Thursday night to make them available to subscribing realty offices by the opening of each Friday business day.
Plaintiff Wesley Koch ("Koch") started delivering for Transamerica in 1992. Koch drove a route that began near downtown Columbus and then proceeded to the east side of town. Koch was paid $1 per stop for each book he delivered to a realty office.
Koch and the other drivers would go to Lind's house on Thursday evenings to pick up computer generated route sheets for that particular week. Later that night, the drivers would meet at a north Columbus location to pick up MLS directories that had been delivered by truck from Michigan. Once the books were loaded, the drivers would begin their routes. Generally, the books wersdelivered and loaded around midnight, and it took Koch approximately six hours thereafter to complete his route.
On June 30, 1995, while delivering MLS books on his route, Koch was shot by two assailants on the east side of Columbus. On September 15, 1995, plaintiffs filed a complaint against defendants, alleging that defendants were negligent in failing to properly instruct, supervise, caution or assist Koch in delivering the MLS books. The complaint further alleged that requiring Koch to deliver books in dangerous neighborhoods at night constituted a deliberate and intentional act by defendants that made injury to Koch certain or substantially certain to occur.
Defendant Lind filed an answer on October 19, 1995. Defendants Columbus and Central Ohio Regional Multiple Listing Service and Multiple Listing Service of Columbus Board of Realtors, Inc. (collectively, "the Board") filed an answer on October 25, 1995.
On May 3, 1996, the Board filed a motion for summary judgment. Transamerica filed a motion for summary judgment on May 6, 1996.
By decision filed October 2, 1996, the trial court granted summary judgment in favor of all defendants. The decision of the trial court was journalized by judgment entry filed October 24, 1996.
On appeal, plaintiffs set forth the following two assignments of error for review: "I. The trial court erred in finding that Defendants-Appellees Columbus and Central Ohio Regional Multiple Listing Service and Multiple Listing Service of Columbus Board of Realtors, Inc. were entitled to summary judgment as sufficient material facts and relevant law exist in Plaintiffs' favor.
"2. The trial court erred in finding that Defendant-Appellee Roger Lind was entitled to summary judgment as sufficient facts and relevant law exist in Plaintiffs' favor."
Plaintiffs' two assignments of error, which challenge the trial court's granting of summary judgment in favor of defendants, involve interrelated issues and will be addressed together.
Civ.R. 56(C) provides:
"Summary judgment shall be rendered forthwith if the pleading, depositions,
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