
    Puthoff et al. v. Niehaus et al. 
    (No. 81-3343-CV-H
    Decided December 2, 1983.)
    Celina Municipal Court.
    
      Mr. Gregory D. Wilson, for plaintiffs Larry H. and Ñola J. Puthoff.
    
      Mr. John F. Moul, for defendants Charles R. and Patricia R. Niehaus.
   S.J. Walters, J.

This cause came on upon complaint of the plaintiffs, answer of the defendants, the evidence, arguments of counsel and briefs of counsel for the parties.

The defendants purchased land on the south side of Grand Lake, St. Marys, in 1955, and thereafter built a summer home on the land. The summer home was used by the defendants for summer weekend occupancy. During the time the defendants owned the premises, in an attempt to solve a water problem, they installed a tile from the patio around the house and into the lake channel and at two different times built sea walls to prevent the lake from rising onto the property. The last sea wall was constructed approximately five years prior to the sale to the plaintiffs. After construction of the last sea wall the defendants had no problems with water other than that occasionally water from the channel backed up through the drain onto the patio.

In 1979, defendants sold the property to the plaintiffs. At or about the time of sale the defendants, in response to a question from the plaintiffs as to whether they had any water problems with the property, answered that the only water problems they had experienced was that occasionally water backed up from the channel through the drain and onto the patio.

After the plaintiffs purchased the premises in 1982 water came through the drain and over the sea wall and rose to a height of eight inches in the basement or lower level room of the property.

As stated in plaintiffs’ brief, the case of Friedland v. Lipman (1980), 68 Ohio App. 2d 255 [22 O.O.3d 422], provides that a claim of common-law fraud requires proof of all six of the following elements:

(1) A representation or, where there is a duty to disclose, concealment of a fact,
(2) which is material to the transaction at hand,
(3) made falsely with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,
(4) with the intent of misleading another into relying upon it,
(5) justifiable reliance upon the representation or concealment, and
(6) a resulting injury proximately caused by the reliance.

The court finds no proof of the third and fourth elements as set out in the Friedland case. The plaintiffs asked the defendants if they had experienced water problems to which the latter replied that they had none. In fact, they had none since construction of the last sea wall which defendants believed would keep the lake from rising onto the property in all events. They had experienced water backing from the channel through the drain and onto the patio, about which they had told the plaintiffs.

It may be remembered that the spring of 1982 was an extremely wet spring caused by frozen ground, excessive rain and excessive snow melt, causing lakes and creeks to rise and basements to be flooded all over northwestern Ohio. We do not believe that the defendants are required to anticipate abnormal flood conditions and warn the plaintiffs about them. The defendants had experienced no water over the sea wall since building the last sea wall; consequently, the defendants believed and were justified in believing that the sea wall would contain the lake and that the only problem would be water backup from the channel through the drain.

Therefore, the court concludes that the defendants made no false statements with knowledge of their falsity nor were defendants aware of any facts concerning the property which they were under a duty to disclose to the plaintiffs, and that the defendants had no intent to mislead the plaintiffs.

The court further finds that judgment should be rendered in favor of the defendants and against the plaintiffs with costs to the plaintiffs.

Judgment for defendants.

S.J. Walters, J., of the Van Wert Municipal Court, sitting by assignment in the Celina Municipal Court.  