[Cite as McHugh v. Zaatar, 2015-Ohio-143.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
AMY MCHUGH C.A. No. 14CA010591
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOE ZAATAR COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 12CV178208
DECISION AND JOURNAL ENTRY
Dated: January 20, 2015
MOORE, Judge.
{¶1} Plaintiff-Appellant, Amy McHugh (“Tenant”), now appeals from the judgment of
the Lorain County Court of Common Pleas, granting summary judgment in favor of Defendant-
Appellee, Joe Zaatar (“Landlord”). This Court reverses.
I.
{¶2} In August 2009, Tenant leased a home from Landlord and paid him an $850
security deposit. There is no dispute that the steps leading to the basement of the home were not
equipped with a handrail and that, at some point during her tenancy, Tenant paid a company to
clean and repair the basement due to flooding. There is also no dispute that Landlord kept
Tenant’s security deposit when she ended her lease.
{¶3} According to Tenant, Landlord ignored her request to install a handrail and, in
January 2011, she fell down the basement steps and sustained serious injuries. Further,
according to Tenant, Landlord never reimbursed her for the basement cleaning and repair work
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she had done with Landlord’s approval. Tenant brought suit against Landlord for
negligence/negligence per se as a result of her injuries and for oral contract/unjust enrichment as
a result of the cleaning and repair work she paid to have done after the basement flooded.
Further, she pleaded a statutory cause of action based on Landlord’s failure to return her security
deposit. Landlord filed an answer and discovery commenced. After discovery concluded, both
parties filed motions for summary judgment.
{¶4} Landlord moved for summary judgment on all of Tenant’s claims. Meanwhile,
Tenant filed a motion for partial summary judgment on the duty and breach elements of her tort
claim. She argued that, by failing to install a statutorily-mandated handrail on her basement
steps, Landlord had committed negligence per se. Both parties filed briefs in opposition to
summary judgment, and Landlord filed a reply to Tenant’s brief in opposition. Subsequently, the
court granted Landlord’s motion for summary judgment on each of Tenant’s counts and denied
Tenant’s partial motion for summary judgment.
{¶5} Tenant now appeals from the trial court’s judgment and raises five assignments of
error for our review. For ease of analysis, we rearrange and consolidate several of the
assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT GRANTED LANDLORD’S MOTION
FOR SUMMARY JUDGMENT BECAUSE HIS MOTION WAS NOT
SUPPORTED BY EVIDENTIARY MATERIAL AS REQUIRED BY OHIO
CIV.R. 56(C).
{¶6} In her first assignment of error, Tenant argues that the court erred by granting
Landlord’s motion for summary judgment because Landlord did not support his motion with any
Civ.R. 56(C) evidence. We agree.
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{¶7} Pursuant to Civ.R. 56(C), summary judgment is proper only if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The summary judgment movant
bears the initial burden of informing the trial court of the basis for the motion and pointing to
parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75
Ohio St.3d 280, 292-93 (1996). “If the moving party fails to satisfy its initial burden, the motion
for summary judgment must be denied.” Id. at 293. Only if the moving party fulfills his or her
initial burden does the burden shift to the nonmoving party to prove that a genuine issue of
material fact exists. Id.
{¶8} “Civ.R. 56(C) limits the types of evidentiary materials that a party may present
when seeking or defending against summary judgment.” Committe v. Rudolchick, 9th Dist.
Lorain No. 12CA01086, 2013-Ohio-2373, ¶ 11. The rule provides that
[s]ummary judgment shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence,
and written stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.
(Emphasis added.) Civ.R. 56(C). “[I]f the opposing party fails to object to improperly
introduced evidentiary materials, the trial court may, in its sound discretion, consider those
materials in ruling on the summary judgment motion.” Wolford v. Sanchez, 9th Dist. Lorain No.
05CA008674, 2005-Ohio-6992, ¶ 20, quoting Christe v. GMS Mgt. Co., Inc., 124 Ohio App.3d
84, 90 (9th Dist.1997). “If, however, the opposing party objects to the materials on the basis that
they have not been properly introduced under Civ.R. 56(C), the trial court may not rely upon
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them in ruling on the motion for summary judgment.” Committe at ¶ 11. Accord King v. Rubber
City Arches, L.L.C., 9th Dist. Summit No. 25498, 2011-Ohio-2240, ¶ 19.
{¶9} “[A] deposition transcript must be authenticated before it can be considered as
legally acceptable evidence for summary judgment purposes.” Id. Moreover, “[e]very
deposition intended to be presented as evidence must be filed at least one day before the day of
trial or hearing * * *.” Civ.R. 32(A). “[T]he rule clearly makes filing of the depositions
mandatory.” Nickey v. Brown, 7 Ohio App.3d 32, 35 (9th Dist.1982).
{¶10} In support of his motion for summary judgment, Landlord relied upon two
exhibits. The first exhibit was a copy of Tenant’s lease agreement. The second was a copy of
Tenant’s deposition. Unlike the other depositions in the matter, Tenant’s deposition was never
separately filed in the action. Instead, Landlord only attached a copy of it to his motion.
{¶11} In her brief in opposition to summary judgment, Tenant argued that Landlord’s
motion should fail as a matter of law because he did not support it with any Civ.R. 56(C)
evidence. She argued that her deposition was not properly before the court because it had never
been separately filed in the matter. She also argued that Landlord had failed to support his
evidence with an affidavit. Consequently, it was Tenant’s position that Landlord had failed to
meet his initial Dresher burden. See Dresher, 75 Ohio St.3d at 292-93.
{¶12} Landlord filed a reply to Tenant’s brief in opposition, but did not cause her
deposition to be separately filed with the court. Instead, he argued that the transcript “has not
been filed because [Tenant] did not waive signature and thus she must sign the transcript before
it can be filed.” He noted that he attached a copy of the deposition to his summary judgment
motion “for the Court’s convenience” and that Tenant’s deposition “will be filed with the Court
as soon as [she] signs it.” The deposition, however, was never filed with the court.
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{¶13} The trial court did not address Tenant’s argument that Landlord had failed to
present it with any Civ.R. 56(C) evidence. In granting Landlord’s motion, however, the court
specifically noted that it had considered Tenant’s deposition. Tenant argues that the court erred
by doing so because the deposition did not comply with Civ.R. 56(C). She maintains that the
court should have denied Landlord’s motion as a matter of law because he failed to support it
with any Civ.R. 56(C) evidence. We agree.
{¶14} Contrary to Landlord’s argument on appeal, he was not prevented from filing
Tenant’s deposition in the court below. Civ.R. 30(C) affords a deponent thirty days within
which to review and sign his or her deposition. The rule provides that
[i]f the deposition is not signed by the witness during the period prescribed in this
division, the officer [before whom the deposition was taken] shall sign it and state
on the record the fact of the waiver or of the illness or absence of the witness or
the fact of the refusal to sign together with the reason, if any, given therefor; and
the deposition may then be used as fully as though signed, unless on a motion to
suppress the court holds that the reasons given for the refusal to sign require
rejection of the deposition in whole or in part.
Civ.R. 30(E). Landlord, therefore, had the ability to secure the filing of the deposition in the
absence of Tenant’s signature. He failed to do so, so Tenant’s deposition was not proper Civ.R.
56(C) evidence. See Civ.R. 32(A); Civ.R. 56(C). See also Rogers v. Benefit Services Agency of
Ohio, Inc., 9th Dist. Summit No. 17374, 1996 WL 122088, *1 (Mar. 20, 1996). Because Tenant
specifically objected to the introduction of the deposition on the basis that it was improper Civ.R.
56(C) evidence, the court could not consider it in ruling on Landlord’s motion for summary
judgment. See Committe, 2013-Ohio-2373, at ¶ 11; King, 2011-Ohio-2240, at ¶ 19. See also
Nickey, 7 Ohio App.3d at 36, citing Civ.R. 32(D)(4) (objection to filing of deposition construed
as motion to suppress deposition under Civ.R. 32(D)(4)).
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{¶15} Absent Tenant’s deposition, the only item Landlord attached to his summary
judgment motion was Tenant’s lease agreement. Yet, the lease agreement was not the type of
evidence listed in Civ.R. 56(C), and Landlord failed to incorporate it by way of a properly
framed affidavit. See Civ.R. 56(C) (limiting summary judgment evidence to “pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence,
and written stipulations of fact”); Skidmore & Assoc. Co. L.P.A. v. Southerland, 89 Ohio App.3d
177, 179 (9th Dist.1993) (“The proper procedure for introducing evidentiary matter not
specifically authorized by Civ.R. 56(C) is to incorporate it by reference in a properly framed
affidavit pursuant to Civ.R. 56(E).”). Tenant also specifically argued in her brief in opposition
that Landlord’s evidence did not comply with Civ.R. 56(C), in part, because it was not supported
by an affidavit. Thus, the trial court also could not consider the lease agreement in ruling on
Landlord’s motion for summary judgment. See Committe at ¶ 11; King at ¶ 19.
{¶16} As previously set forth, a summary judgment movant bears the initial burden of
informing the trial court of the basis for the motion and pointing to parts of the record that show
the absence of a genuine issue of material fact. Dresher, 75 Ohio St.3d at 292-93. “If the
moving party fails to satisfy its initial burden, the motion for summary judgment must be
denied.” Id. at 293. Here, Landlord failed to meet his initial burden under Dresher. He only
supported his motion with evidence that the court could not consider. Thus, he did not point to
any evidence to demonstrate the absence of a genuine issue of material fact. Because Landlord
failed to satisfy his initial Dresher burden, the burden never shifted to Tenant, and the trial court
erred by granting Landlord’s motion for summary judgment. Thus, Tenant’s first assignment of
error is sustained.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERR (sic) WHEN IT GRANTED LANDLORD’S
MOTION FOR SUMMARY JUDGMENT BY CONCLUDING THAT HIS
NEGLIGENCE IN FAILING TO INSTALL A HANDRAIL AS REQUIRED * *
* BY ELYRIA CODIFIED ORD. § 1305.01 WAS EXCUSED BECAUSE THE
MISSING HANDRAIL CONSTITUTED AN OPEN AND OBVIOUS DEFECT.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED WHEN IT GRANTED LANDLORD’S MOTION
FOR SUMMARY JUDGMENT BY CONCLUDING THAT TENANT FAILED
TO PROVE THE MISSING HANDRAIL PROXIMATELY CAUSED HER
INJURY.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED WHEN IT GRANTED LANDLORD’S MOTION
FOR SUMMARY JUDGMENT FINDING THAT NO LEGITAMATE (sic)
QUESTION OF FACT EXISTED ON THE CLAIMS FOR FAILURE TO
RETURN HER SECURITY DEPOSIT AND UNJUST ENRICHMENT.
{¶17} In her second, fourth, and fifth assignments of error, Tenant offers several
additional arguments as to why the court erred by granting Landlord’s motion for summary
judgment. Based on our resolution of Tenant’s first assignment of error, her second, fourth, and
fifth assignments of error are moot, and we decline to address them. See App.R. 12(A)(1)(c).
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT DENIED TENANT’S MOTION FOR
SUMMARY JUDGMENT BY CONCLUDING THAT LANDLORD’S
NEGLIGENCE IN FAILING TO INSTALL A HANDRAIL AS REQUIRED BY
ELYRIA CODIFIED ORD. § 1305.01 WAS EXCUSED BECAUSE THE
MISSING HANDRAIL CONSTITUTED AN OPEN AND OBVIOUS DEFECT.
{¶18} In her third assignment of error, Tenant argues that the court erred when it denied
her partial motion for summary judgment. She argues that she was entitled to summary
judgment on the duty and breach elements of her tort claim because Landlord committed
negligence per se. Because the trial court failed to address Tenant’s claim of negligence per se,
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however, we must reverse and remand the matter for the court to consider her claim in the first
instance.
{¶19} We incorporate the standard of review set forth in Tenant’s first assignment of
error. Thus, we examine the record to determine whether she demonstrated that there were no
genuine issues of material fact for trial, that she was entitled to judgment as a matter of law, and
that it appeared from the evidence that reasonable minds could only come to a conclusion in her
favor. Temple, 50 Ohio St.3d at 327.
{¶20} “In order to succeed under an action for negligence, a plaintiff must show the
existence of a duty, a breach of that duty, and that the breach of that duty was the proximate
cause of the plaintiff’s injuries.” Galo v. Carron Asphalt Paving, Inc., 9th Dist. Lorain No.
08CA009374, 2008-Ohio-5001, ¶ 8, citing Chambers v. St. Mary’s School, 82 Ohio St.3d 563,
565 (1998). “The concept of negligence per se allows the plaintiff to prove the first two prongs
of the negligence test, duty and breach of duty, by merely showing that the defendant committed
or omitted a specific act prohibited or required by statute * * *.” Lang v. Holly Hill Motel, Inc.,
122 Ohio St.3d 120, 2009-Ohio-2495, ¶ 15. Negligence per se also functions as an exception to
the open and obvious doctrine because the doctrine “does not override statutory duties.” Id. at ¶
14.
{¶21} With regard to the application of negligence per se, the Ohio Supreme Court has
drawn a distinction between statutory violations and administrative rule violations.
Administrative rule violations are admissible as evidence of negligence, but “do not create a per
se finding of duty and breach of duty * * *.” Id. at ¶ 21. That is because administrative rules do
not flow directly from the General Assembly and, as such, do not create duties that reflect public
policy. Id. at ¶ 18. They are “subordinate rules” that merely “expound upon public policy
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already established by the General Assembly in the Revised Code.” (Internal quotations and
citations omitted.) Chambers, 82 Ohio St.3d at 567. Statutes, on the other hand, undergo a
rigorous legislative process and speak directly to public policy, as established by the General
Assembly. Id. at 566-567. “Where a legislative enactment imposes a specific duty for the safety
of others, failure to perform that duty is negligence per se.” Id. at 565.
{¶22} “R.C. 5321.04(A) sets out various duties of a landlord.” Harris-Coker v.
Abraham, 9th Dist. Summit No. 26053, 2012-Ohio-4135, ¶ 7. The statute requires a landlord
who is a party to a rental agreement to:
(1) Comply with the requirements of all applicable building, housing, health, and
safety codes that materially affect health and safety;
(2) Make all repairs and do whatever is reasonably necessary to put and keep the
premises in a fit and habitable condition * * *.
R.C. 5321.04(A). “A landlord’s violation of the duties imposed by R.C. 5321.04(A)(1) or
5321.04(A)(2) constitutes negligence per se * * *.” Sikora v. Wenzel, 88 Ohio St.3d 493 (2000),
syllabus.
{¶23} Tenant sought summary judgment on the duty and breach elements of her tort
claim, arguing that Landlord had committed negligence per se by failing to install a handrail on
the steps leading to her basement. In her complaint, Tenant alleged that her rental property was
“unsafe and failed to comply with applicable building codes including * * * no safety hand
railing on the basement stairs.” She further alleged that Landlord owed her “a duty to maintain
the premises in a safe manner and to safeguard her from known dangers and to comply with
applicable building codes.” Accordingly, while Tenant did not specifically cite R.C. 5321.04 in
her complaint, she set forth allegations relevant to R.C. 5321.04(A)(1) and (A)(2). See Harris-
Coker at ¶ 7.
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{¶24} In her motion for summary judgment, Tenant specified that Landlord committed
negligence per se when he violated R.C. 5321.04(A)(1) and (A)(2). She also cited the sections of
the Elyria Codified Ordinance and Property Maintenance Code that Landlord had allegedly
violated by failing to install a handrail on her basement stairway. Further, she attached to her
motion an affidavit from Phil Lahetta, the City of Elyria’s Chief Building Official. In his
affidavit, Mr. Lahetta averred:
3. A home located at 852 Fairwood Drive, Elyria, Ohio and rented as a dwelling
on [the date of Tenant’s alleged injury] was governed by the 2003 International
Property Maintenance Code which was adopted by the City of Elyria on March 7,
2005 by Elyria Cod. Ord. § 1305.01;
4. Section 306 of the Property Maintenance Code required a hand rail on all
interior and exterior stairways that have four or more risers on [the date of
Tenant’s alleged injury];
5. There are no exceptions and the failure to install a handrail on a[]basement
stairway consisting of four risers is a violation subject to fines and penalties.
Thus, Tenant set forth evidence in support of her negligence per se claim.
{¶25} In response to Tenant’s motion for summary judgment, Landlord relied upon
Lang v. Holly Hill Motel, Inc. and argued that building code violations do not amount to
negligence per se. See Lang, 122 Ohio St.3d 120, 2009-Ohio-2495, at ¶ 20-21. Unlike the
plaintiff in Lang, however, Tenant did not rely strictly upon a building code violation to establish
negligence per se. She argued that Landlord’s actions violated section 5321.04 of the Revised
Code.1 The Ohio Supreme Court has recognized that a violation of either R.C. 5321.04(A)(1) or
(A)(2) constitutes negligence per se. Sikora, 88 Ohio St.3d 493 at syllabus. Accordingly, Lang
is distinguishable from the case at hand.
1
We note that the plaintiff in Lang could not avail herself of R.C. 5321.04 because she and the
defendant did not have a landlord-tenant relationship.
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{¶26} The trial court determined that Tenant was not entitled to judgment because the
lack of a handrail on her basement steps constituted an open and obvious danger. Yet,
negligence per se is an exception to the open and obvious danger doctrine. Lang at ¶ 15. If
Tenant proved negligence per se, then the open and obvious doctrine would not act as a bar to
her claim. “The trial court * * * failed to analyze the issue of negligence per se in its judgment
entry. Accordingly, we are compelled to reverse and remand the matter to the trial court to
consider the claim of negligence per se in the first instance.” Harris-Coker at ¶ 7. Tenant’s third
assignment of error is sustained on that basis.
III.
{¶27} Tenant’s first and third assignments of error are sustained. Her remaining
assignments of error are moot. The judgment of the Lorain County Court of Common Pleas is
reversed, and the cause is remanded for further proceedings consistent with the foregoing
opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
CARLA MOORE
FOR THE COURT
BELFANCE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
JOSEPH E. ROSENBAUM, Attorney at Law, for Appellant.
J. ALAN SMITH, Attorney at Law, for Appellee.
McHugh v. Zaatar
Combined Opinion