I do not agree with the conclusion reached by the majority in this case.
A more detailed factual statement reveals that in October 1991, James Tigner, a resident of Greenville, Georgia, leased premises at 2949 East 81st Street in Cleveland, Ohio, to Vernell Harris and her three minor children. Sometime during October 1992, three-year-old Erica, one of her children, was admitted to Mt. Sinai Hospital for excessive lead levels and ingestion of paint chips. Thereafter, on October 28, 1992, the city of Cleveland inspected the premises and issued a notice to Tigner at his home in Georgia listing areas where paint hazards existed on the premises.
In compliance with the notice, Tigner, from Georgia, hired a painter to complete work on the home, and after a November 1992 city health inspector approved the interior of the premises, the child was returned to the home.
In May 1993, Erica again presented at Mt. Sinai Hospital with a 50 g/dl lead level.
While the majority believes the trial judge erred in granting summary judgment for the landlord in this case, I do not.
A landlord is required to meet certain obligations under R.C.5321.04(A), including:
"(1) Comply with the requirements of all applicable building, housing, health, and safety codes which 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 * * *."
In Shroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20, 22 O.O.3d 152, 427 N.E.2d 774, the Ohio Supreme Court addressed these statutory duties and concluded that failure to meet these obligations amounted to negligence per se. "However, in addition to negligence per se, proximate cause for the injuries sustained must be established. Also it must be shown that the landlord received notice of the defective condition of the rental premises, that the landlord knew of the defect, or that the tenant had made reasonable, but unsuccessful, attempts to notify the landlord." (Citations omitted.) Id. at 25-26, 22 O.O.3d at 155, 427 N.E.2d at 778.
Shroades, then, clearly dictates that in addition to negligence per se and causation, we must find that the landlord had notice of a defect or that a tenant made a reasonable attempt to give such notice before liability attaches to *Page 157 landlords for injuries sustained from defective conditions. In this case, therefore, we must determine whether Tigner had any notice of the lead paint problems at the premises prior to renting the property to Harris.
The notice issued by the city of Cleveland on October 28, 1992 evidenced that Tigner had violated R.C. 5321.04(A), constituting negligence per se. Furthermore, Harris presented evidence that the existence of lead-based paint on the premises proximately caused the injury to Erica. However, Harris presented no evidence to suggest that Tigner received notice of the defective condition of the premises, knew of any such defect, or that Harris had made any attempts to notify Tigner as required by Shroades, supra, prior to injury to Erica.
Even the quoted portions of Tigner's deposition cited by the majority reveal lack of notice.
"I know nothing about paint. * * *
"* * *
"It probably should be done. I'm not saying it shouldn't be done. I didn't know anything about it." (Emphasis added.)
The tenant's burden of proof in this situation is governed byShroades, supra:
"[I]t must be shown that the landlord received notice of the defective condition of the rental premises * * *." Id.,68 Ohio St. 2d at 25-26, 22 O.O.3d at 155, 427 N.E.2d at 778.
I do not believe that the evidence shows that Tigner received notice of the defect prior to the injury to Erica. Once notified by the city, the landlord fully complied to the satisfaction of the city's health inspector. I do not find any genuine issue of material fact in issue and, pursuant to R.C. 5321.04 andShroades v. Rental Homes, the appellee landlord is entitled to judgment as a matter of law. Accordingly, I would affirm the judgment of the trial court in this case. *Page 158