Bierl v. BGZ Assoc. II, L.L.C.

[Cite as Bierl v. BGZ Assoc. II, L.L.C., 2013-Ohio-648.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY

SUSAN BIERL,

PLAINTIFF-APPELLANT, CASE NO. 9-12-42

v.

BGZ ASSOCIATES II, LLC, OPINION

DEFENDANT-APPELLEE.

Appeal from Marion County Common Pleas Court
Trial Court No. 10-CV-0527

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: February 25, 2013

APPEARANCES:

Patrick T. Murphy for Appellant

Timothy J. Ryan for Appellee
Case No. 9-12-42

ROGERS, J.

{¶1} Plaintiff-Appellant, Susan Bierl, appeals the order of the Court of

Common Pleas of Marion County granting summary judgment in favor of

Defendant-Appellee, BGZ Associates II, LLC (“BGZ”). On appeal, Bierl argues

that the trial court erred by (1) finding that the open and obvious doctrine barred

her common law negligence claim; (2) determining that her injury did not occur in

a residential premises that is covered by R.C. 5321.04; and (3) finding that she

was not a third party beneficiary of the lease between Bierl’s daughter, Amber

Bierl (“Amber”), and BGZ. For the reasons that follow, we affirm in part and

reverse in part the trial court’s judgment.

{¶2} On June 25, 2010, Bierl filed a complaint against BGZ seeking

recovery for the injuries she sustained in a trip and fall accident at an apartment

complex owned by BGZ. Bierl sought recovery based on three theories. First,

BGZ was alleged to have violated the Landlord-Tenant Act. Second, Bierl

claimed to be a third party beneficiary of the lease between BGZ and Amber and

that BGZ breached its contractual obligation to maintain the accident site in a safe

condition. Third, Bierl asserted that BGZ was subject to common law premises

liability.

{¶3} Bierl attached Amber’s lease with BGZ to her complaint. It included

the following definition of the premises leased:

-2-
Case No. 9-12-42

PREMISES LEASED. [BGZ], in consideration of the rent to be
paid, and covenants and agreements to be performed by [Amber]
does herby lease the following described premises located at: 532
New Park Drive Apartment C (hereinafter referred to as the
Premises). The Premises shall include the following personal
property owned by [BGZ]: Dishwasher, disposal, range and
refrigerator carpet, mini-blinds, and smoke detectors (Docket No. 1,
Exhibit A, p. 1).

The lease went on to describe BGZ’s duties to Amber, including the duty to

“[k]eep all common areas of the Premises in a safe and sanitary condition[.]” (Id.

at p. 4). The lease also included a variety of provisions that refer to guests and

Amber’s duty to control her guests’ actions while they are on the property.

{¶4} During discovery, several witnesses were deposed regarding Bierl’s

trip and fall accident. Bierl’s deposition provided the following relevant evidence.

Her trip and fall occurred on October 17, 2009 when she was at the complex as

Amber’s guest. Bierl said that before the accident, she visited Amber at the

complex three or four times a week.

{¶5} The purpose of Bierl’s October 17, 2009 visit was to attend a party

thrown by Amber at the apartment complex’s clubhouse. After the party finished,

Bierl assisted with the clean-up effort. Bierl stated that in the course of cleaning,

Bierl carried one 30-to 40-pound garbage bag from the clubhouse to the nearest

dumpster on the complex’s property. She also testified that she carried the bag in

front of her at waist level with both of her hands, which prevented her from seeing

her feet.

-3-
Case No. 9-12-42

{¶6} The dumpster was surrounded on three sides by white wooden walls

that were of greater heights than the dumpster itself. Bierl said that while she had

used other dumpsters at the apartment complex before the date of the accident, she

had never used the dumpster closest to the clubhouse. Further, Bierl indicated that

as she approached the dumpster from the clubhouse, she traveled a sidewalk that

only allowed her to see the white wooden walls and not the open side. After

passing the white wooden wall that concealed the dumpster, she immediately

turned to the right so that she could throw the garbage bags into the dumpster.

Shortly after turning, her right foot got caught on a knee-high one inch by one-

quarter of an inch metal brace that ran diagonally from the ground to the side of

the nearest white wall. Most of the brace was spray painted red but the top of it

was painted white. After getting her foot caught, Bierl fell and sustained several

injuries to her left leg.

{¶7} As to the trip and fall, Bierl testified as follows:

Q: Was there an area that you could not see in front of you or was
the bag – were you carrying it low enough that you could see ahead
of you?

A: I carried it low, yeah, so I could see where I was walking.

Q: So the bag wasn’t effecting [sic] what you could see in front of
you?

A: No, no.

***

-4-
Case No. 9-12-42

Q: All right. So when you were turning that corner, was that
familiar ground to you?

A: No.

Q: When you turned the corner, what were you looking at? * * *
[J]ust after you left the blacktop and were turning, by this white post,
what is first thing you saw on the other side of that – of this sideway
that has the bracket * * *?

A: The dumpster.

***

Q: Were you looking for the place where you would be throwing
it?

A: Yes.

Q: As you’re turning the corner looking to see where the dumpster
is, are you thinking how you would what, take the top off or
whatever?

A: Yes. (Id. at p. 53-54).

Bierl further acknowledged that she was not looking down to see the brace or

anything else that was on the ground and that it was sunny on the date of the

accident. Bierl also admitted that had she been looking down, she probably could

have seen the brace.

{¶8} Kathy Lange, another party attendee who was present during the

clean-up effort, provided a slightly different version of events in her deposition

regarding what Bierl was carrying before the accident. Lange initially testified

-5-
Case No. 9-12-42

that Bierl was carrying one garbage bag in each hand when she headed toward the

dumpster and that Bierl held the bags to her sides. However, later in her

deposition, Lange indicated that Bierl carried the two bags in front of her.

{¶9} Lange also discussed the aftermath of the accident. She indicated that

she heard Bierl scream and ran down the sidewalk to Bierl’s aid. Upon reaching

the dumpster area, Lange discovered that Bierl had suffered significant injuries,

and placed a coat over her as she lay on the ground between the metal bracket and

the dumpster. Lang testified as follows regarding her ability to see the metal

bracket during her run to the dumpster area:

Q: When did you first notice the bracket, the little piece of metal?

A: After I was putting my coat on her. I had taken my coat to
cover her up because it was cold.

**

Q: Had you seen – you did not see that bracket until after she
pointed it out?

A: No, I didn’t. I wasn’t actually – I was more concerned for her.

**

Q: Could you see the bracket as you approached this area?

A: No.

Q: So from this point of view, as you approached the area, the
bracket was not discernible?

A: No. (Lange Depo., p. 14-15, 18).

-6-
Case No. 9-12-42

The following exchange also occurred regarding the metal bracket:

Q: * * * Was the bracket open and obvious? Was it something
you could see?

A: No.

Q: Was it in the way?

A: Yes, obviously, it’s very much in the way. (Id. at p. 23).

However, Lange acknowledged that if she was looking down and looking for the

bracket, she would have seen it.

{¶10} Thomas Stanley, a maintenance employee for BGZ, testified

regarding the apartment complex’s four dumpster sites. He indicated that three of

the dumpster sites do not have metal brackets but that the one Bierl used on the

date of the accident did.

{¶11} The following exchange occurred regarding the use of the dumpsters:

Q: Tom, * * * people are supposed to be using these dumpsters,
correct?

A: Correct.

Q: And, obviously, when they use the dumpsters, they are
approaching the dumpsters because they are carrying garbage?

A: Right.

Q: It’s foreseeable that people are carrying bags of garbage as they
walk through to the dumpsters?

A: You would hope. (Stanley Depo., p. 12).

-7-
Case No. 9-12-42

Stanley also testified to the foreseeability that an older female would carry a

garbage bag in such a way as to obstruct the view of the metal brace that Bierl

tripped over:

Q: It’s foreseeable that an older lady carrying a garbage bag might
use both hands to carry the bag in front of her?

A: Yes.

Q: In doing that process, that person’s view of the bracket would
be obscured, right?

A: Probably would, yes. (Id. at p. 14-15).

{¶12} On May 2, 2011, BGZ filed its motion for summary judgment on all

of the claims raised in Bierl’s complaint. Attached to the motion was the affidavit

of Meredith Dirst, the property manager of the apartment complex.1 She attested

that the metal brace was painted red and could be seen at a distance of 100 feet

from the dumpster. Pictures of the brace were affixed to the affidavit. After Bierl

filed her response, BGZ submitted a reply brief that included an additional

affidavit from Dirst indicating that Amber had to pay $25 to reserve the clubhouse

for the October 17, 2009 party.2

1
The original affidavit attached to the motion was neither notarized nor signed. To correct this, BGZ later
submitted a properly signed and notarized affidavit.
2
After these three filings, Bierl filed a “Supplement to Memorandum and Opposition to Motion for
Summary Judgment” on January 27, 2012. In this supplement, Bierl first argued that attendant
circumstances obviated the applicability of the open and obvious doctrine. BGZ moved that the
supplement be stricken, but the trial court did not rule on BGZ’s request. Accordingly, we assume that the
trial court denied the motion. Seff v. Davis, 10th Dist. No. 03AP-159, 2003-Ohio-7029, ¶ 16.

-8-
Case No. 9-12-42

{¶13} The trial court granted BGZ’s motion for summary judgment on June

19, 2012. The trial court found that the dumpster area was not part of the leased

premises and accordingly ruled that the Landlord-Tenant Act did not apply to the

trip and fall accident. It further found that Bierl was not a third party beneficiary

of the lease between BGZ and Amber. Finally, it found, based on the photographs

of the metal bracket and the purported analogousness of this matter to Novik v.

Kroger Co., 3d Dist. No. 9-11-21, 2011-Ohio-5737, that the bracket was an open

and obvious danger that precluded Bierl from recovering on the basis of common

law premises liability.

{¶14} Bierl timely appealed from this judgment, presenting the following

assignments of error for our review.

Assignment of Error No. I

THE TRIAL COURT ERRED IN GRANTING DEFENDANT-
APPELLEE’S MOTION FOR SUMMARY JUDGMENT IN
FINDING THAT THERE IS NO MATERIAL ISSUE OF FACT
THAT THE BRACKET IN QUESTION WAS OPEN AND
OBVIOUS THUS OBVIATING THE APPELLEE FROM A
DUTY TO WARN OF THE DANGER.

Assignment of Error No. II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN THE COURT SUMMARILY DETERMINED THAT
THE DUMPSTER AREA WHERE APPELLANT WAS
INJURED WAS NOT PART OF THE “LEASED PREMISES”
AND THAT THE PROTECTION AFFORDED THE
TENANTS PER SECTION 5321.04 ORC ARE NOT

-9-
Case No. 9-12-42

APPLICABLE TO THE APPELLANT WHILE LAWFULLY
ON THE PREMISES.

Assignment of Error No. III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN SUMMARILY GRANTING DEFENDANT-APPELLEE’S
MOTION FOR SUMMARY JUDGMENT FINDING THAT
THE PLAINTIFF-APPELLANT AS A GUEST OF TENANT
WAS NOT A THIRD PARTY BENEFICIARY OF THE
CONTRACT BETWEEN THE TENANT [SIC] AND NOT
AFFORDED THE SAME PROTECTION THE LAND LORD
[SIC] OWED ITS TENANT PURSUANT TO THE
CONTRACT.

Assignment of Error No. I

{¶15} In her first assignment of error, Bierl argues that the trial court

improperly granted summary judgment in favor of BGZ on her common law

premises liability claim. Specifically, she contends that the trial court erred in

finding that the open and obvious doctrine bars her negligence claim. We agree.

Summary Judgment Standard

{¶16} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.

1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distris., Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d

-10-
Case No. 9-12-42

217, 222 (1994). Summary judgment is appropriate when, looking at the evidence

as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving

party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this

analysis the court must determine “that reasonable minds can come to but one

conclusion and that conclusion is adverse to the party against whom the motion for

summary judgment is made, [the nonmoving] party being entitled to have the

evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”

Id. If any doubts exist, the issue must be resolved in favor of the nonmoving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).

{¶17} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

The nonmoving party must then rebut with specific facts showing the existence of

a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings. Id.; Civ.R. 56(E).

The Open and Obvious Doctrine

{¶18} A negligence claim requires that the plaintiff show the “existence of

a duty, breach of that duty, and an injury proximately caused by the breach.”

-11-
Case No. 9-12-42

Miller v. Grewal Bros. Corp., 3d Dist. No. 7-11-12, 2012-Ohio-1279, ¶ 13, citing

Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680

(1998). In regard to the existence of a duty, Ohio courts have found that

landowners do not owe a duty to warn land entrants of open and obvious dangers.

E.g., Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 13

(“[W]e reiterate that when courts apply [the open and obvious doctrine], they must

focus on the fact that the doctrine relates to the threshold issue of duty.”); Sidle v.

Humphrey, 13 Ohio St.2d 45 (1968), paragraph one of the syllabus (“An occupier

of premises is under no duty to protect a business invitee against dangers which

are known to such invitee or are so obvious and apparent to such invitee that he

may reasonably be expected to discover them and protect himself against them.”).

Accordingly, the open and obvious doctrine operates to completely bar a

negligence claim and summary judgment is appropriate. Lang v. Holly Hill Motel,

Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, ¶ 11 (“[W]hen a plaintiff is injured by

an open and obvious danger, summary judgment is generally appropriate because

the duty of care necessary to establish negligence does not exist as a matter of

law.”). The reasoning behind this doctrine is that “the open and obvious nature of

the hazard itself serves as a warning. Thus, the owner or occupier may reasonably

expect that the person entering the premises will discover those dangers and take

appropriate measures to protect themselves.” Simmers v. Bentley Constr. Co., 64

-12-
Case No. 9-12-42

Ohio St.3d 642, 644 (1982); see also Armstrong at ¶ 13 (“The fact that a plaintiff

was unreasonable in choosing to encounter the danger is not what relieves the

property owner of liability. Rather, it is the fact that the condition itself is so

obvious that it absolves the property owner from taking any further action to

protect the plaintiff.”).

{¶19} “A hazard is open and obvious when in plain view and readily

discoverable upon ordinary inspection.” Stewart v. AMF Bowling Ctrs., Inc., 3d

Dist. No. 5-10-16, 2010-Ohio-5671, ¶ 15. Rather than rely on the plaintiff’s

subjective beliefs to determine the existence of such a hazard, we assess whether a

reasonable person would have discerned the hazard. Carnes v. Sieferd, 3d Dist.

No. 1-10-88, 2011-Ohio-4467, ¶ 19. In performing this analysis, we have noted

that “‘even an obstruction that sits low to the ground * * * may be open and

obvious as a matter of law, so long as it is not concealed.’” Mohn v. Wal-Mart

Stores, Inc., 3d Dist. No. 6-08-12, 2008-Ohio-6184, ¶ 14, quoting Johnson v.

Golden Corral, 4th Dist. No. 99CA2643 (Sept. 12, 2000).

{¶20} We find two cases to be of particular relevance to this matter. In

Kidder v. Kroger Co., 2d Dist. No. 20405, 2004-Ohio-4261, the Second District

found that the trial court improperly granted summary judgment on the basis of the

open and obvious doctrine. There, the plaintiff slipped on a puddle of water in a

grocery store “immediately upon turning the corner at the end of an aisle.” Id. at ¶

-13-
Case No. 9-12-42

9. As a result, “she had little advance opportunity to perceive the hazard,” which

indicated that there was a genuine issue of material fact as to the open and obvious

nature of the puddle. Id.

{¶21} Similarly, in Miller v. Beer Barrel Saloon, 6th Dist. No. 90-OT-050

(May 24, 1991), the plaintiff was at one end of an L-shaped bar when her husband

beckoned her to come to the other side of the bar. The plaintiff consequently

followed the bar, took a 90 degree turn, and within a couple of steps, she slipped

on rolled up mats that were on the floor. The Sixth District reversed the trial

court’s grant of summary judgment in favor of the defendant property owner

because the placement of the mats, combined with the plaintiff’s path around the

bar, rendered her unable to see the mats. Id.

{¶22} Nearly the same facts are present here. As reflected in Bierl’s and

Lange’s depositions, Bierl’s only reasonable pathway to the dumpster only

allowed her to see the white walls around the dumpster until she turned the corner.

According to Bierl, she fell shortly after turning the corner, suggesting that “she

had little advance opportunity to perceive” the metal brace. Kidder at ¶ 9. In light

of this evidence and the guidance of Kidder and Miller, we believe that there is a

genuine issue of material fact as to whether the brace was open and obvious.

{¶23} Bierl’s lack of familiarity with the dumpster area where she fell

further bolsters our finding that such a genuine issue of material fact exists. In

-14-
Case No. 9-12-42

many of our previous cases, we have found that the open and obvious doctrine

applies where the plaintiff testified that he had been to the area of the accident

before or knew that the hazard was present before the accident. E.g., Novik, 2011-

Ohio-5737, at ¶ 24; Stewart, 2010-Ohio-5671, at ¶ 17; Lyle v. PK Mgt., LLC, 3d

Dist. No. 5-09-38, 2010-Ohio-2161, at ¶ 29; Mohn, 2008-Ohio-6184, at ¶ 16;

Williams v. Lowe’s of Bellefontaine, 3d Dist. No. 8-06-25, 2007-Ohio-2045, ¶ 22;

Brown v. Whirlpool Corp., 3d Dist. No. 9-04-12, 2004-Ohio-5101, ¶ 15; Branham

v. Moore, 3d Dist. No. 11-2000-09 (Nov. 8, 2000); Primavera v. Guthery, 3d Dist.

No. 9-96-11 (June 24, 1996). But, this matter implicates a very different dynamic.

Bierl testified in her deposition that she had previously used dumpsters at the

complex, but not the one that was closest to the clubhouse. Further, Stanley’s

deposition testimony established that the dumpster closest to the clubhouse was

the only one that included a metal brace. From this evidence, it is apparent that

Bierl had no familiarity with this dumpster area before her trip and that she had no

knowledge of the metal brace. See Miller, supra (reversing grant of summary

judgment in favor of the defendant property owner where the plaintiff had not

been to the area of the accident before). In fact, the evidence suggests that Bierl

would reasonably expect, from her trips to the complex’s other dumpsters, that the

brace would not be present. See Smith v. Frederick C. Smith Clinic, 189 Ohio

App.3d 473, 2010-Ohio-4548, ¶ 28 (3d Dist.) (finding that open and obvious

-15-
Case No. 9-12-42

doctrine did not bar negligence claim since reasonable person, based on common

experience, would not expect an automatic sliding door to close on him while he

passed through a doorway).

{¶24} In sum, we find that, when viewing all inferences in favor of Bierl,

there is a genuine issue of material fact regarding the open and obvious nature of

the metal brace. Consequently, the trial court erred in granting summary judgment

in favor of BGZ on Bierl’s premises liability claim.

{¶25} Accordingly, we sustain Bierl’s first assignment of error.

Assignment of Error No. II

{¶26} In her second assignment of error, Bierl argues that the trial court

erred in granting summary judgment to BGZ on her claim that BGZ violated the

Landlord-Tenant Act. Specifically, Bierl argues that the trial court improperly

found that the dumpster area was not part of the residential premises. We agree.

{¶27} This assignment of error revolves around our resolution of two

issues. First, does the Landlord-Tenant Act create liability on a landlord’s part to

a tenant’s social guest who is injured in an area that is not under the tenant’s

exclusive control? Second, if the Landlord-Tenant Act does create such liability,

is the dumpster area implicated in this matter a “common area[] of the premises”

that is covered by R.C. 5321.04(A)(3)? We answer both questions in the

affirmative.

-16-
Case No. 9-12-42

The Landlord-Tenant Act

{¶28} At common law, a landlord generally owed no duty to a residential

tenant or his guest. Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d

414, 417-18 (1994). However, the General Assembly partially abrogated the

common law with the enactment of the Landlord-Tenant Act, which is codified in

R.C. Chapter 5321. Id. at 419. The statute provides, in pertinent part, as follows:

(A) A landlord who is a party to a rental agreement shall do all of
the following: * * *

(3) Keep all common areas of the premises in a safe and sanitary
condition[.] R.C. 5321.04(A)(3).

Pursuant to R.C. 5321.01(C), a “residential premises” is defined as:

[A] dwelling unit for residential use and occupancy and the
structures of which it is part, the facilities and appurtenances in it,
and the grounds, areas, and facilities for the use of tenants generally
or the use of which is promised the tenant.

{¶29} It is well-established that if the language of a statute is plain and

unambiguous, there is no need for a court to apply further rules of statutory

interpretation. State v. Siferd, 151 Ohio App.3d 103, 2002-Ohio-6801, ¶ 33 (3d

Dist.). Words and phrases must be read in context and given their usual, normal,

and customary meanings. R.C. 1.42; Proctor v. Kardassilaris, 115 Ohio St.3d 71,

2007-Ohio-4838, ¶ 12. Further, “[i]t is an axiom of judicial interpretation that

statutes be construed to avoid unreasonable or absurd consequences.” State ex rel.

Seneca Cty. Bd. of Commrs., 175 Ohio App.3d 721, 2008-Ohio-736, ¶ 28 (3d

-17-
Case No. 9-12-42

Dist.), quoting State ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St.3d 382, 384

(1985).

{¶30} However, where the meaning of a statute is ambiguous, a court may

examine its legislative history or consider the statute in pari materia to ascertain its

meaning. State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, ¶ 34; State ex

rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph two of the syllabus.

“In determining legislative intent when faced with an ambiguous statute, the court

may consider several factors, including the object sought to be obtained,

circumstances under which the statute was enacted, the legislative history, and the

consequences of a particular construction.” Bailey v. Republic Engineered Steels,

Inc., 91 Ohio St.3d 38, 40 (2001). Additionally, “‘a court cannot pick one

sentence and disassociate it from the context, but must look to the four corners of

the enactment to determine the intent of the enacting body.’” Jackson at ¶ 34,

quoting State v. Wilson, 72 Ohio St.3d 334, 336 (1997). Further, a court is

permitted to consider laws concerning the same or similar subjects to discern

legislative intent. R.C. 1.49(D); see also D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd.

of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, ¶ 20 (“Statutes relating to the

same matter or subject * * * are in patri materia and should be read together to

ascertain and effectuate if possible the legislative intent.”).

-18-
Case No. 9-12-42

A Landlord’s Liability under the Landlord-Tenant Act to Guests

{¶31} Shump contains the Ohio Supreme Court’s first discussion of a

landlord’s potential liability for a social guest’s injury under the Landlord-Tenant

Act. There, the plaintiff’s decedent was the guest of a tenant who leased a two-

story townhouse from the landlord. The landlord only installed one smoke

detector and it was located on the second floor of the townhouse. When a fire

began on the first floor of the townhouse, the smoke detector did not go off until it

was too late for the decedent to escape. The plaintiff then brought a wrongful

death claim alleging that the landlord was negligent in the installation of the

smoke detector. Shump, 71 Ohio St.3d at 415-16.

{¶32} Regarding the plaintiff’s common law premises liability claim

against the landlord, the Court stated as follows:

[T]he common-law classifications of trespasser, licensee, and invitee
determine the legal duty that a tenant owes others who enter upon
rental property that is in the exclusive possession of the tenant.
However, with regard to areas within the exclusive possession of a
tenant, the common-law classifications do not affect the legal duty
that a landlord owes a tenant or others lawfully upon the leased
premises. Id. at 417.

As a result, the Court found that “[a] landlord owes the same duties to persons

lawfully upon the leased premises as the landlord owes to the tenant.” Id. at

syllabus.

-19-
Case No. 9-12-42

{¶33} Although the plaintiff in Shump did not assert a claim based on the

Landlord-Tenant Act, the Court still addressed the applicability of its finding on

the statute. In doing so, it stated as follows:

We do not believe that the [Landlord-Tenant Act] alters this well-
settled common-law principle. * * * Thus, the obligations imposed
upon a landlord under R.C. 5321.04 would appear to extend to
tenants and to other persons lawfully upon the leased premises.
(Emphasis sic.) Id. at 420.

Moreover, the Court reiterated its holdings in Marqua v. Mann, 109 Ohio St. 56

(1923), and Stackhouse v. Close, 83 Ohio St. 339 (1911), “that a landlord may be

held liable to a tenant’s guest for the breach of a statutory duty imposed upon the

landlord.” Shump at 420.

{¶34} BGZ seizes upon Shump’s use of the term “leased premises” when

referring to the scope of a landlord’s duties to guests and argues that the Landlord-

Tenant Act only creates liability on a landlord’s part if the tenant’s guest suffers

his or her injury while in an area that is under the tenant’s exclusive control. BGZ

also cites to several cases in which the Ninth District Court of Appeals applied

Shump and found that R.C. 5921.04 did not inculpate a landlord for the injuries

that a guest suffered while in the common areas of the landlord’s premises. E.g.,

Shumaker v. Park Lane Manor of Akron, 9th Dist. No. 25212, 2011-Ohio-1052, ¶

12; Owens v. French Village Co., 9th Dist. No. 99CA0058 (July 26, 2000); Rios v.

Shauck, 9th Dist. No. 97CA006753 (June 3, 1998); Sanders v. Bellevue Manor

-20-
Case No. 9-12-42

Apartments, 9th Dist. No. 95CA006067 (Jan. 3, 1996). However, after reviewing

Shump and the Landlord-Tenant Act, we disagree with the Ninth District’s

position. Instead, we adopt the Tenth District’s reasoning in Mann v. Northgate

Investors, LLC, 10th Dist. No. 11AP-684, 2012-Ohio-2871, appeal accepted, 133

Ohio St.3d 1463, 2012-Ohio-2871,3 and likewise find that the statute creates

liability on a landlord’s part for the injuries sustained by guests in common areas

of a residential premises.

{¶35} In Mann, the plaintiff was injured while visiting a tenant who leased

an apartment unit from the defendant. The plaintiff fell on the staircase leading to

the tenant’s apartment, allegedly because the defendant negligently failed to

replace a burned-out light bulb. The trial court granted the defendant’s motion for

summary judgment on the basis that R.C. 5321.04 did not apply. Id. at ¶ 2-5. On

appeal, the defendant, like BGZ here, cited to Shump’s “leased premises” language

and the Ninth District’s case law to support its case for affirmance. Id. at ¶ 15.

The Tenth District disagreed and reversed the trial court, finding that Shump

supported the proposition that “landlords owe to guests of a tenant in the common

areas the same duties the landlord owes to a tenant.” Id. at ¶ 20. Other courts in

this state have reached the same conclusion. E.g., Smith v. Finn, 6th Dist. No. L-

3
Mann is currently pending before the Supreme Court of Ohio. The certified question for the Court’s
review is “[w]hether a landlord owes the statutory duties of R.C. 5321.04(A)(3) to a tenant’s guest properly
on the premises but on the common area stairs at the time of injury?”

-21-
Case No. 9-12-42

04-1244, 2005-Ohio-1547, ¶ 13-14; Hodges v. Gates Mills Towers Apt. Co., 8th

Dist. No. 77278 (Sept. 28, 2000). We adopt the logic of Mann for three reasons.

{¶36} First, the Tenth District’s view is consistent with the language of the

Landlord-Tenant Act. R.C. 5321.12 provides that “[i]n any action under Chapter

5321. of the Revised Code, any party may recover damages for the breach of

contract or a breach of any duty that is imposed by law.” (Emphasis added.) R.C.

5321.12. The use of the term “any party” is instructive. Rather than use “tenant”

or “landlord,” both of which are defined terms in R.C. 5321.01, or refer to

particular types of guests, the General Assembly elected to use the expansive term

“any party.” Had the General Assembly intended to maintain a distinction

between guests who are injured in the common areas of a residential premises and

guests who are injured within the tenant’s defined leasehold estate, it certainly

would have chosen a more limiting term than “any party.”

{¶37} Second, the outcome and reasoning of Mann is also in concert with

the holding in Shump. Since Shump involved the landlord’s alleged negligence in

installing a smoke detector within the apartment unit leased by a tenant, its holding

does not mandate that the courts exculpate landlords from liability under the

Landlord-Tenant Act for a guest’s injuries that were sustained in common areas.

Rather, Shump leaves that issue unresolved and indeed it suggests that such

injuries are covered by the statute.

-22-
Case No. 9-12-42

{¶38} As noted by the Tenth District in Mann, the Court explicitly rejected

the reasoning found in Rose v. Cardinal Industries, Inc., 68 Ohio App.3d 406 (6th

Dist. 1990), and Seiger v. Yeager, 44 Ohio Misc.2d 40 (C.P. 1988). Shump, 71

Ohio St.3d at 420. In Rose, the plaintiff was injured while visiting a tenant who

leased an apartment unit from the defendant. The plaintiff slipped on wet grass

immediately in front of the sidewalk that led to the tenant’s unit. Rose at 407.

The Sixth District affirmed a grant of summary judgment in favor of the defendant

because “in the absence of any clear statutory provision or case law specifically

extending the duties and remedies of R.C. 5321.04 to social guests of tenants,” it

would not find a violation of the statute. Id. at 410; see also Sieger at 41-42

(granting summary judgment to landlord-defendant where plaintiff-social guest

injured herself in driveway of residential rental property she was visiting). By

rejecting Rose and Sieger, both of which involve social guests injuring themselves

in common areas, the Supreme Court sent a clear signal in Shump – landlords are

liable under R.C. Chapter 5321 when social guests of their tenants injure

themselves in common areas.

{¶39} Third, Mann is consistent with our decision in Elliott v. Massey, 3d

Dist. No. 3-94-23 (Mar. 20, 1995). There, the plaintiff was a social guest of a

tenant who leased residential property from the defendant. In the course of the

visit, the plaintiff slipped and fell on a slab that led to the property. We reversed

-23-
Case No. 9-12-42

the trial court’s grant of summary judgment in favor of the defendant because

“R.C. 5321.04 applies to a tenant as well as a tenant’s guest; thus, the duty owed is

not determined by an individual’s classification as business invitee or licensee.”

Id.; see also Saunders v. Greenwood Colony, 3d Dist. No. 14-2000-40 (Feb. 28,

2001) (noting that “common law distinctions continue to control only as to the

relationship between the guest and the tenant”). This finding hints that we do not

view the Landlord-Tenant Act as only inculpating a landlord for the injuries

suffered by a tenant’s guest within the areas solely controlled by the tenant.

Accordingly, following Elliott’s guidance requires us to find that the Landlord-

Tenant Act inculpates a landlord for the injuries that a tenant’s guest sustains in

common areas.

{¶40} We are not persuaded by BGZ’s argument that the use of “leased

premises” in Shump indicates that a landlord cannot be liable under the Landlord-

Tenant Act for the injuries a tenant’s guest suffers in the common areas of a

residential premises. A review of Shump reveals that the Court used both “leased

premises” and “rental property” when referring to the area which the landlord was

responsible for maintaining. E.g., Shump, 71 Ohio St.3d at 419 (“The proposition

that a landlord owes the same duties to persons lawfully upon the rental property

as the landlord owes to the tenant is not unique to Ohio.”). The Court’s

interchangeable use of these two terms suggests that the Court did not intend its

-24-
Case No. 9-12-42

use of “leased premises” to convey a specific meaning that is different from the

definition of “residential premises” that is provided in R.C. 5321.01(C).

{¶41} Further, the Court unequivocally stated that “the obligations imposed

upon a landlord under R.C. 5321.04 would appear to extend to tenants and to other

persons lawfully upon the leased premises.” (Emphasis sic.) Id. at 420. R.C.

5321.04(A)(3), which the Court explicitly extends to both tenants and guests,

refers to a landlord’s duty to “keep all common areas of the premises in a safe

sanitary condition” in cross-reference to the statutory definition of residential

premises in R.C. 5321.01(C). This statement in Shump, when read in conjunction

with R.C. 5321.01(C) and 5321.04(A)(3), indicates that the Court intended to

place landlords under a duty to maintain the “common areas” of the “residential

premises” as those terms are used and defined in the statute. As a result, any use

of “leased premises” within the body of Shump was not intended to contravene or

vary the dictates of the statute.

{¶42} Based on the plain terms of the Landlord-Tenant Act, the Ohio

Supreme Court’s reasoning in Shump, and the Tenth District’s decision in Mann,

we find that the Landlord-Tenant Act allows social guests of tenants to maintain

actions against landlords for the injuries that the guests sustain in the common

areas of residential properties they are visiting. As a result, BGZ is potentially

-25-
Case No. 9-12-42

liable for Bierl’s injuries provided that Bierl sustained her injury in a common area

of the apartment complex in which Amber resided.

BGZ’s Liability for Bierl’s Injuries

{¶43} In its appellate brief, BGZ admits that the dumpster area is a

common area. (Appellee’s Br., p. 12). Indeed, Stanley’s deposition testimony that

the dumpster areas are generally available for the use of tenants at the complex

confirms this admission. Based on this, we find that the dumpster area is a

common area and that, pursuant to R.C. 5321.04(A)(3), BGZ had the duty to

maintain the dumpster area in a “safe and sanitary condition” for the benefit of

tenants and their guests, including Bierl. As a result, the trial court’s finding that

the Landlord-Tenant Act did not apply to Bierl’s injuries was erroneous.

{¶44} In sum, the Landlord-Tenant Act applies with equal force to social

guests of tenants regardless of whether they are injured in the common areas of a

residential premises or within areas solely controlled by tenants. As such, because

the dumpster area is a common area of the apartment complex owned by BGZ, it

owed a duty under the Landlord-Tenant Act to maintain the dumpster area in a

safe condition for the benefit of Bierl, who was a guest of Amber, one of BGZ’s

tenants. Consequently, we find that, when viewing all inferences in favor of Bierl,

there is a genuine issue of material fact as to whether BGZ violated the Landlord-

-26-
Case No. 9-12-42

Tenant Act and the trial court erred in granting summary judgment on Bierl’s

claim under the Landlord-Tenant Act

{¶45} Accordingly, we sustain Bierl’s second assignment of error.

Assignment of Error No. III

{¶46} In her third assignment of error, Bierl contends that the trial court

erroneously granted summary judgment to BGZ on her breach of contract claim.

Specifically, Bierl claims that she is a third party beneficiary of the lease between

Amber and BGZ. We disagree.

{¶47} To enforce a contract, a party must be an intended beneficiary and

not a mere incidental beneficiary. Hill v. Sonitrol of Southwestern Ohio, Inc., 36

Ohio St.3d 36, 40 (1988). In Hill, the Supreme Court of Ohio adopted the Second

Restatement’s definitions of intended and incidental beneficiaries. The definitions

are as follows:

(1) * * * [A] beneficiary of a promise is an intended beneficiary if
recognition of a right to performance in the beneficiary is
appropriate to effectuate the intention of the parties and either:

(a) the performance of the promise will satisfy an obligation of the
promisee to pay money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to give the
beneficiary the benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary who is not an
intended beneficiary. 2 Restatement of the Law 2d, Contracts,
Section 302 (1981).

-27-
Case No. 9-12-42

{¶48} The Court also adopted the “intent to benefit” test to delineate

between intended and incidental beneficiaries. The test is as follows:

“[I]f the promisee * * * intends that a third party should benefit from
the contract, then the third party is an ‘intended beneficiary’ who has
enforceable rights under the contract. If the promisee has no intent
to benefit a third party, then any third party beneficiary to the
contract is merely an ‘incidental beneficiary,’ who has no
enforceable rights under the contract.” Hill at 40, quoting Norfolk &
W. Co. v. United States, 641 F.2d 1201, 1208 (6th Cir. 1980).

The Hill test remains viable in Ohio courts. E.g., Huff v. FirstEnergy Corp., 130

Ohio St.3d 196, 2011-Ohio-5083, ¶ 10-11 (applying Hill test).

{¶49} The Supreme Court has provided the following guidance for the

application of the Hill test:

Courts generally presume that a contract’s intent resides in the
language the parties choose to use in the agreement. Only when the
language of a contract is unclear or ambiguous, or where the
circumstances surrounding the agreement invest the language of a
contract with a special meaning will extrinsic evidence be
considered in an effort to give effect to the parties’ intentions. Ohio
law thus requires that for a third party to be an intended beneficiary
under the contract, there must be evidence that the contract was
intended to directly benefit that third party. Generally, the parties’
intention to benefit a third party will be found in the language of the
agreement. (Internal citations and quotations omitted.) Id. at ¶ 12.

Further, courts have noted that for a person to claim intended third party

beneficiary status, the contracting parties must have entered into the contract for

the primary benefit of that person. E.g., Caruso v. Natl. City Mtge. Co., 187 Ohio

App.3d 329, 2010-Ohio-1878, ¶ 23 (1st Dist.). Nevertheless, there is no

-28-
Case No. 9-12-42

requirement that the contract explicitly identify the third party beneficiary. First

Fed. Bank v. Angelini, 3d Dist. No. 3-07-04, 2007-Ohio-6153, ¶ 11.

{¶50} The record indicates that BGZ and Amber did not enter into their

lease agreement to primarily or directly benefit Bierl. The lease’s purpose was to

govern the contractual relationship between BGZ and Amber for the use of the

leased premises. Both BGZ and Amber received the primary benefits of the lease.

Namely, BGZ received monthly rental payments and Amber’s agreement to abide

by her duties listed in the lease while Amber received the right to occupy her

apartment unit and BGZ’s agreement to abide by its duties listed in the lease.

Meanwhile, Bierl merely received the incidental benefit of being able to visit

Amber at her apartment unit.

{¶51} Further, the lease includes two provisions identifying the persons

who could legally occupy the apartment unit. The only persons identified in these

sections were Amber, her son, and her then-boyfriend. None of the provisions

refer to Bierl or any other guest, suggesting that the Lease was not made for her

primary benefit.

{¶52} In support of her intended third party beneficiary claim, Bierl cites

several passages in the lease that refer to guests. But, a review of these passages

reveals that they only relate to either Amber’s responsibility for her guests’ actions

or BGZ’s liability to guests for its negligence. These provisions do not manifest

-29-
Case No. 9-12-42

an intent to primarily benefit Bierl. Rather, they evince Amber’s and BGZ’s

agreement regarding Amber’s use of the leased premises and the parties’

respective duties in ensuring the premises’ maintenance during the lease period.

Again, Amber received the primary benefit of the parties’ agreement in this regard

and Bierl merely received an incidental benefit.

{¶53} In sum, Bierl was an incidental third party beneficiary of Amber’s

lease agreement with BGZ. As such, she is unable to enforce the obligations

included in the lease and the trial court was correct in granting summary judgment

in favor of BGZ on Bierl’s third party beneficiary claim.

{¶54} Accordingly, we overrule Bierl’s third assignment of error.

{¶55} Having found no error prejudicial to Bierl in the third assignment of

error, but having found error prejudicial to Bierl in the first and second

assignments of error, we affirm in part and reverse in part the trial court’s

judgment and remand this matter for further proceedings consistent with this

opinion.

Judgment Affirmed in Part,
Reversed in Part, and
Cause Remanded

WILLAMOWSKI and SHAW, J.J., concur.

/jlr

-30-