Goodman v. Dan Rich, LLC

2021 Ohio 690

STEVEN M. GOODMAN, ET AL., Plaintiffs-Appellants, v. DAN RICH, LLC, ET AL., Defendants-Appellees.

No. 109581

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

March 11, 2021

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-18-906545

Appearances:

Elk & Elk Co., Ltd., and Ian D. Fijalkovich, for appellants.

Gallagher Sharp LLP, and Thomas J. Cabral, for appellees.

SEAN C. GALLAGHER, J.:

{¶ 1} Plaintiffs-appellants Steven M. Goodman ("Goodman") and Patsy Goodman appeal the decision of the trial court that granted summary judgment in favor of defendants-appellees Dan Rich, LLC and Integrity Realty Group, LLC. Upon review, we affirm the decision of the trial court.

Background

{¶ 2} Appellants rented a single-family home on Brainard Road in Orange Village, Ohio. They began renting the home in February 2015. Appellants state that appellees Dan Rich, LLC and Integrity Realty Group, LLC were responsible for the ownership and maintenance of the property.

{¶ 3} The rental home had a brick-and-paver patio. In July 2016, which was four months before the trip-and-fall that led to this action, Goodman sent an email to his landlord listing several issues he was having with the premises.¹ In this email correspondence, Goodman indicated that "[t]he bricks on the back porch are falling down and the other day I fell when the wall collapsed and I sprained my ankle." In his deposition, Goodman explained that he tripped over a paver along the perimeter of the patio. After Goodman sent this email, Richard Brown, a management member and representative of appellees, met with Goodman to go over the issues and looked over the patio.

{¶ 4} Brown contacted a mason who inspected the property. The mason informed him the patio would not be worth repairing because of its age and condition, and the mason suggested addressing the project, whether it was to do an extensive repair or a replacement, in the spring. Brown conceded in his deposition that it was an old patio that needed maintenance, that it was a matter of structural integrity, and that there potentially were safety concerns.

{¶ 5} Goodman allegedly fell again on the patio in November 2016 when he stepped up on the brick-and-paver patio at the rear of the rental property.² According to Goodman, as he stepped onto the patio, one of the pavers at the very edge came loose, causing him to fall over backwards onto the ground. He claims that he suffered serious physical injuries from the fall. In his deposition, Goodman stated that it was daylight, he was not carrying anything, and he was not distracted. He did not testify to any attendant circumstances. He indicated that "[w]e like to grill out and hang out as a family on Friday, Saturday evenings." Goodman admitted in his deposition that he had knowledge "there were loose bricks on the patio" and that he "knew some were loose."

{¶ 6} On November 6, 2018, appellants filed a complaint for money and declaratory judgment against appellees.³ In their complaint, appellants allege that appellees were negligent in the maintenance, care, and/or control of the patio by creating and allowing a hazard and for failing to warn appellants of the dangerous condition of the patio. The complaint raises claims for common-law negligence and for violations of statutory duties imposed by R.C. 5321.04 under Ohio's Landlord-Tenant Act.

{¶ 7} Appellees filed an answer, and discovery occurred. Thereafter, appellees filed a motion for summary judgment claiming they were entitled to summary judgment on both the common-law negligence claims and the claims for violations of Ohio's Landlord-Tenant Act. Appellees argued that appellants were aware that the patio contained bricks that were uncemented to the base of the patio around its perimeter, that Goodman had actual knowledge of the open-and-obvious danger, and that appellees owed no duty to appellants under the particular facts of the case. Appellees further argued that the record did not support any claims of negligence per se for a violation of R.C. 5321.04(A)(1) or (2).

{¶ 8} Appellees' motion was opposed by appellants. Appellants argued that appellees failed to comply with R.C. 5321.04(A)(1) and (2) and were negligent per se by having an unsafe patio at the rental property that (1) did not comply with the Residential Code of Ohio for One-, Two-, and Three-Family Dwellings ("the RCO") or acceptable safety standards, and (2) violated their duty to repair. Appellants filed an affidavit of Richard L. Zimmerman, a registered architect, who opined the brick-and-paver patio violated the RCO and accepted industry safety standards because "it was not maintained to be safe; it was not positively anchored to the primary structure; it was not capable of supporting the minimum required uniformly distributed live load; and for other reasons." In his report, which was incorporated into his affidavit, Zimmerman opined that the "incident deck/patio" did not comply with certain sections of the RCO and violated R.C. 5321.04(A)(1) and (2). Zimmerman also opined that the landlord did not make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition. He further opined that the landlord's violations proximately caused Goodman's fall and injuries.

{¶ 9} On February 10, 2020, the trial court granted appellees' motion for summary judgment. In considering the common-law negligence claims, the trial court recognized appellees' arguments that Goodman had testified in his deposition that he had knowledge that some bricks were loose on the patio prior to his November 2016 fall, he had previously sprained his ankle when he tripped over a brick on the patio in July 2016, and he reported the dangerous condition of the patio to appellees via email on July 22, 2016. Further, the court recognized that appellants did not claim any attendant circumstances existed. In considering the claims for violations of Ohio's Landlord-Tenant Act, the trial court determined there was nothing in the record to suggest the premises were not kept in a fit and habitable condition or that any violation materially affected the tenants' health and safety. The court recognized that appellants continued to access the patio even after Goodman had sprained his ankle. The court also found plaintiffs' expert report was insufficient to establish a violation under R.C. 5321.04 and determined plaintiffs' expert had interchangeably used the term "deck/patio" when the language of the RCO does not mention patios. The court granted summary judgment in favor of appellees upon finding appellants failed to present evidence that the condition of the patio was not an open-and-obvious condition and failed to demonstrate appellees violated their statutory duty under R.C. 5321.04. This appeal followed.

Law and Analysis

{¶ 10} Appellants raise two assignments of error for our review. Under the first assignment of error, appellants claim the trial court erred in granting summary judgment with respect to their claims under Ohio's Landlord-Tenant Act. Under the second assignment of error, appellants claim the trial court erred in finding the loose patio brick that caused Goodman's fall was an open-and-obvious condition with respect to their common-law negligence claims.

{¶ 11} Appellate review of summary judgment is de novo, governed by the standard set forth in Civ.R. 56. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate "only when [1] no genuine issue of material fact remains to be litigated, [2] the moving party is entitled to judgment as a matter of law, and, [3] viewing the evidence in the light most favorable to the nonmoving party, reasonable minds can reach a conclusion only in favor of the moving party." Id., citing M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12.

{¶ 12} In their complaint, appellants raised claims for both common-law negligence and negligence per se for violations of R.C. 5321.04 under Ohio's Landlord-Tenant Act. We shall review both types of claims.

A. Common-law negligence claims

{¶ 13} To prevail on a negligence claim, a party must show the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 21, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). The open-and-obvious doctrine, which is based on a common-law duty to warn invitees of latent or hidden dangers, remains viable in Ohio. Id., citing Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 11. Pursuant to the open-and-obvious doctrine, "a premises-owner owes no duty to persons entering [the] premises regarding dangers that are open and obvious." Armstrong at ¶ 5, citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one of the syllabus. The rationale behind the "open and obvious" doctrine is that "the open and obvious nature of the hazard itself serves as a warning" and "the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves." Id., quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). "When applicable * * * the open-and-obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claims." Id.

{¶ 14} Appellants argue that although some of the pavers on the patio may have been loose, there is no evidence that Goodman previously traversed the loose paver on which he allegedly fell, and the paver was in a different area of the patio from his previous fall. They further argue that there is an issue of fact as to whether appellees had superior knowledge of the defect because they had the patio independently...