Hatto v. McLaughlin

[Cite as Hatto v. McLaughlin, 2020-Ohio-3374.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

EARL HATTO, :

Plaintiff-Appellant, :
No. 109307
v. :

THOR D. MCLAUGHLIN, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 18, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-902389

Appearances:

Benedict P. Miralia, for appellant.

Gallagher Sharp L.L.P., Craig A. McClelland, and Robert
P. Lynch, Jr., for appellee.

FRANK D. CELEBREZZE, JR., J.:

Plaintiff-appellant Earl Hatto brings the instant appeal challenging the

trial court’s judgment granting summary judgment in favor of defendant-appellee

Thor McLaughlin (hereinafter “McLaughlin”) in appellant’s negligence action.

Appellant argues that summary judgment was improper because McLaughlin
breached the common law duty of care he owed to appellant, and McLaughlin was

negligent per se. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

The instant appeal pertains to an accident that occurred on

December 25, 2016, at a residential property in Cleveland’s Old Brooklyn

neighborhood. The residential property at issue is located at 4703 Spokane Avenue,

Cleveland, Ohio 44144. Appellant was a tenant at the property from January 2014

to September 2017, residing in Unit 1 on the first floor.

When appellant first moved into the apartment, the premises owner

was Dan Repicky. McLaughlin obtained ownership of the premises in the spring of

2016.

Outside of appellant’s apartment door, there is a stairway — a landing

followed by three steps — leading down to the front door of the building.

According to appellant, there was a handrail on the stairway at some

point before appellant moved into the apartment in 2014. Appellant asserted that

Repicky removed the handrail from the stairway at issue, installed the handrail on a

stairway in a different building, and never replaced the handrail.

On December 25, 2016, around 10:00 a.m., appellant slipped and fell

while walking down the stairs from his apartment to the building’s front door.

Appellant was holding a garbage bag in his right hand, and he had his left hand on

the wall. Appellant testified at his deposition that he slipped on rock salt that had

been spilled on the stairs. See appellant’s deposition at 33.
 Appellant sustained an injury to his right ankle. According to appellant,

he underwent multiple surgeries to repair the injuries sustained during the slip and

fall.

On August 18, 2018, appellant filed a complaint against McLaughlin

and ten of McLaughlin’s “employees, servants, and/or representatives[.]”1 See

complaint at ¶ 2. In his complaint, appellant alleged that the accident was a direct

and proximate result of “the recklessness, willfulness, wantonness, carelessness,

maliciousness, intentional conduct, and/or negligence” of McLaughlin or his

associates. See id. at ¶ 3. Appellant alleged that as a result of the negligence,

recklessness, willfulness, wantonness, or omissions of McLaughlin or his associates,

appellant “was personally injured; incurred medical care and treatment; sustained

severe pain, suffering, anxiety, and a loss of ability to perform the usual activities of

life; and incurred other damages and expenses to be proven at trial.” Id. at ¶ 4.

Appellant requested judgment against McLaughlin and his associates, jointly and

severally, in excess of $25,000 plus interest, costs, and attorney fees.

McLaughlin filed an answer on September 12, 2018, raising several

affirmative defenses. McLaughlin asserted, in relevant part, that “[t]he conditions

there and then existing were open and obvious to [appellant] and therefore

[appellant’s] claims are barred.”

Appellant identified McLaughlin’s employees and representatives as “John/Jane
1

Does #1 through #10.”
 On June 13, 2019, McLaughlin filed a motion for summary judgment.

Therein, McLaughlin argued that (1) appellant failed to establish that McLaughlin

had actual or constructive knowledge of the defect or caused the defect;

(2) appellant’s testimony established that appellant was aware of the purported

hazard (rock salt on the steps) and failed to inform McLaughlin of the hazard; and

(3) appellant’s negligence claim failed under the open and obvious hazard doctrine.

On July 10, 2019, appellant filed a brief in opposition to McLaughlin’s

summary judgment motion. Therein, appellant argued that summary judgment was

improper because (1) McLaughlin breached the common law duty of care he owed

to appellant; (2) appellant’s negligence action was not barred by the open and

obvious hazard doctrine; and (3) even if the open and obvious doctrine applied,

McLaughlin was still liable based on the attendant circumstances exception.

Appellant’s brief in opposition focused entirely on his common law,

premises liability negligence claim. Appellant did, however, allege that the lack of a

handrail on the stairway at issue constituted a “patent defect.”

On July 17, 2019, McLaughlin filed a reply brief in support of his

motion for summary judgment. First, with respect to appellant’s argument about

the rock salt on the steps, McLaughlin argued that appellant’s negligence claim

failed under the open and obvious hazard doctrine because appellant was aware of

the rock salt, the rock salt had been present for a few days, and the open and obvious

nature of the condition obviated McLaughlin’s duty to warn appellant. Second, with

respect to appellant’s argument about the lack of a handrail on the stairway,
McLaughlin argued that appellant never testified or presented evidence establishing

that he fell as a result of the lack of a handrail. Furthermore, McLaughlin submitted

the testimony and expert report of certified architect Richard Peter Kraly. Kraly

concluded that the stairway at issue, which did not contain a handrail, was in

compliance with the applicable building code, and as a result, McLaughlin was not

negligent per se. Appellant failed to present any evidence contradicting the

testimony or opinion of McLaughlin’s expert that McLaughlin was in compliance

with the building code.

On August 26, 2019, the trial court denied McLaughlin’s motion for

summary judgment. The trial court concluded that a question of fact existed for trial

regarding whether the lack of a handrail on the stairway at issue violated the

applicable building code and constituted a violation of McLaughlin’s statutory duty

under R.C. 5321.04, such that McLaughlin was negligent per se.2 The trial court

noted that the open and obvious hazard doctrine will not bar a plaintiff’s negligence

action if the landlord violated its statutory duties under Ohio’s Landlord-Tenant Act

and R.C. 5321.04.

On September 6, 2019, McLaughlin filed a motion for reconsideration.

Therein, McLaughlin argued that Kraly’s expert testimony eliminated any disputes

of material fact regarding the issue of negligence per se, and as a result, McLaughlin

2 See Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 23.
was entitled to judgment as a matter of law. Appellant did not file a brief in

opposition or otherwise respond to McLaughlin’s motion for reconsideration.

On November 22, 2019, the trial court granted McLaughlin’s motion

for reconsideration and entered summary judgment in McLaughlin’s favor. The trial

court concluded that appellant failed to come forward with any evidence

contradicting or disputing Kraly’s testimony and expert report regarding

McLaughlin’s compliance with the building code and the issue of negligence per se.

The trial court further found that appellant believed that the rock salt that caused

him to fall on the stairs had been on the stairs for a few days, such that McLaughlin

did not have a duty to remove the salt or warn appellant because the danger was

obvious and apparent.

On December 16, 2019, appellant filed the instant appeal challenging

the trial court’s November 22, 2019 judgment granting McLaughlin’s motion for

reconsideration and entering summary judgment in McLaughlin’s favor. Appellant

assigns one error for review:

I. The trial court erred in granting summary judgment to Defendant-
Appellee Thor McLaughlin.

II. Law and Analysis

A. Summary Judgment

In his sole assignment of error, appellant argues that the trial court

erred by granting summary judgment in favor of McLaughlin.
 1. Standard of Review

Summary judgment, governed by Civ.R. 56, provides for the expedited

adjudication of matters where there is no material fact in dispute to be determined

at trial. In order to obtain summary judgment, the moving party must show that

“(1) there is no genuine issue of material fact; (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 when viewing evidence in favor of the

nonmoving party, and that conclusion is adverse to the nonmoving party.” Grafton

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex

rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631

N.E.2d 150 (1994).

The moving party has the initial responsibility of establishing that it

is entitled to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662

N.E.2d 264 (1996). “[I]f the moving party meets this burden, summary judgment is

appropriate only if the nonmoving party fails to establish the existence of a genuine

issue of material fact.” Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga

No. 98502, 2013-Ohio-1657, ¶ 16, citing Dresher at 293.

Once the moving party demonstrates no material issue of fact exists

for trial and the party is entitled to judgment, the burden shifts to the nonmoving

party to put forth evidence demonstrating the existence of a material issue of fact

that would preclude judgment as a matter of law. Dresher at id. In order to meet

his burden, the nonmoving party may not merely rely upon allegations or denials in
his or her pleadings, and must set forth specific facts, by affidavit or as otherwise

provided in Civ.R. 56(E), demonstrating the existence of a genuine issue of material

fact for trial. See Houston v. Morales, 8th Dist. Cuyahoga No. 106086, 2018-Ohio-

1505, ¶ 7, citing Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385, 667 N.E.2d 1197

(1996). Summary judgment is appropriate if the nonmoving party fails to meet this

burden. Dresher at id.

2. Negligence

It is undisputed that McLaughlin, as owner of the premises and

landlord, owed a common law duty of care to appellant, as tenant. See Carter v.

Forestview Terrace L.L.C., 2016-Ohio-5229, 68 N.E.3d 1284, ¶ 15-16 (8th Dist.).

In order for a tenant to establish a landlord’s negligence under common
law premises liability, the plaintiff must show: (1) the existence of a
duty; (2) a breach of that duty; and (3) an injury proximately resulting
from the breach. Robinson, 112 Ohio St.3d 17, 2006-Ohio-6362, 857
N.E.2d 1195, [at] ¶ 21. However, where the matter involves a question
of the existence of a hazardous condition or defect, actual or
constructive notice of the hazard or defect is a prerequisite to a
landlord’s duty. Waugh v. Lynch, 8th Dist. Cuyahoga No. 100432,
2014-Ohio-1087, ¶ 10; Heckert v. Patrick, 15 Ohio St.3d 402, 405, 473
N.E.2d 1204 (1984). Further, a landlord has no common law duty of
care regarding dangers that are open and obvious. Robinson at ¶ 35[.]

DeFreeze v. Lynch, 8th Dist. Cuyahoga No. 107090, 2019-Ohio-699, ¶ 13.

As noted above, in his motion for summary judgment, McLaughlin

argued that he was entitled to judgment as a matter of law because appellant’s

negligence claim failed under the open and obvious hazard doctrine.
 Under the open and obvious hazard doctrine, a landlord’s duty of

reasonable care to maintain the premises is obviated. Carter at ¶ 17, citing Mann v.

Northgate Investors, L.L.C., 2012-Ohio-2871, 973 N.E.2d 772, ¶ 9 (10th Dist.).

This doctrine espouses the rule that where a danger is “open and
obvious,” a landowner owes no duty of care to individuals lawfully on
the premises. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-
Ohio-2573, 788 N.E.2d 1088, ¶ 14, citing Sidle v. Humphrey, 13 Ohio
St.2d 45, 233 N.E.2d 589 (1968). The rationale for this doctrine is that
the open and obvious nature of the hazard itself serves as a warning
and one may undertake appropriate measures to protect himself or
herself against it. [Mann], citing Simmers v. Bentley Constr. Co., 64
Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). “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.” Armstrong at ¶ 13.

Carter at ¶ 17.

In the instant matter, the trial court concluded that McLaughlin did

not have a duty to remove the rock salt from the steps or warn appellant of the

danger of the rock salt on the steps because appellant was aware of the presence of

rock salt on the steps. The trial court noted that appellant “believed the salt had

been [on the steps] for a few days as it was sunny on the day [appellant] fell.”

After reviewing the record, we find that any danger posed by the

presence of the rock salt on the steps was open and obvious, such that McLaughlin

had no duty to warn appellant about the rock salt on the steps.

In his brief, appellant asserts that the rock salt had been applied to the

exterior steps “a couple of days earlier and [the rock salt] was also on the stairs

inside of the apartment building near [appellant’s] apartment.” (Emphasis added.)
Appellant’s brief at 4. Appellant testified during his deposition that he slipped on

the rock salt that was on the steps. Although appellant was not certain when the

rock salt was placed on or transferred to the steps, he confirmed that the rock salt

was not spread on the ground the morning of the accident (December 25, 2016).

Rather, appellant asserted that the rock salt was “from the previous couple of days,”

and he recalled the weather being “sunny” on the day of the accident. Appellant’s

deposition at 32-33. In his brief in opposition to McLaughlin’s motion for summary

judgment, appellant acknowledged that the rock salt upon which he slipped and fell

“existed on the stairs for a couple of days.” Brief in opposition at 4; appellant

deposition at 34. Appellant testified during his deposition that he had no trouble

seeing the stairway or steps. The accident occurred around 10:00 a.m., and

appellant asserted that the area was well lit at the time of the accident. As appellant

descended the stairway, he was looking down and nothing was obstructing his view.

In opposing McLaughlin’s motion for summary judgment, appellant

argued that the open and obvious hazard doctrine was inapplicable because the

stairs on which he slipped and fell were the only means of egress and ingress from

the front door of the building to his apartment. Appellant directed the trial court to

Mizenis v. Sands Motel, Inc., 50 Ohio App.2d 226, 362 N.E.2d 661 (6th Dist.1975).

Appellant also relies on Mizenis in his appellate brief in support of his argument that

his negligence claim was not barred by the open and obvious hazard doctrine.

In Mizenis, the plaintiff, a guest at defendant’s motel, had to walk

down an exterior stairway in order to exit his second-floor motel room. The exterior
stairway was covered by a natural accumulation of ice and snow. On appeal, the

issue was whether the plaintiff had assumed the risk of accessing the stairway. The

Sixth District held that the plaintiff did not voluntarily assume the risk when

accessing the stairway because plaintiff brought the condition to the attention of the

motel manager, the manager failed to remedy the condition, and the stairway was

the only means to exit the premises. Id. at 230-232.

In the instant matter, appellant’s reliance on Mizenis is entirely

misplaced. First, unlike Mizenis, appellant failed to bring the rock salt or the lack of

a handrail to the attention of management or a representative of McLaughlin or ask

that the conditions be remedied. Furthermore, the doctrine at issue in Mizenis, the

assumption of the risk doctrine, is entirely distinct from the doctrine at issue in this

case, the open and obvious hazard doctrine. As noted above, the open and obvious

hazard doctrine pertains to the threshold issue of a defendant’s duty. The

assumption of the risk doctrine pertains to an affirmative defense once a prima facie

case of negligence has been established. See Daher v. Bally’s Total Fitness, 11th Dist.

Lake No. 2014-L-061, 2015-Ohio-953, ¶ 31, citing Goldstone v. Scacchetti’s, Inc., 7th

Dist. Mahoning No. 07 MA 112, 2008-Ohio-2563, ¶ 17.

Under the open and obvious doctrine, it does not matter whether the
invitee had a viable alternative to encountering the open and obvious
danger. Steiner v. Ganley Toyota[-]Mercedes Benz, 9th Dist.
[Summit] No. 20767, 2002-Ohio-2326, [] ¶ 13-20. Where a condition
is patent or obvious, the business invitee is expected to protect himself,
unless the condition is unreasonably dangerous. Sidle[, 13 Ohio St.2d
45, 233 N.E.2d 589,] at paragraph one of the syllabus.
Goldstone at ¶ 20. Because the instant matter involves the open and obvious hazard

doctrine, Mizenis is inapposite.

Based on the foregoing analysis, we find that appellant’s negligence

claim fails as a matter of law under the open and obvious doctrine. Appellant’s

testimony established that he slipped and fell on the rock salt that was present on

the steps, the rock salt had been present for a couple of days before the slip and fall,

and nothing was obstructing appellant’s view of the stairway or the presence of the

rock salt thereon at the time of the accident. The open and obvious nature of any

danger posed by the presence of rock salt on the steps obviated any duty McLaughlin

had to warn appellant of the danger and barred appellant’s negligence claim for

injuries related to the open and obvious hazard. See Goodman v. McDonald’s Corp.,

8th Dist. Cuyahoga No. 107268, 2019-Ohio-2216, ¶ 22, citing Hammond v.

Cleveland, 8th Dist. Cuyahoga No. 97174, 2012-Ohio-494, ¶ 11, and Armstrong, 99

Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088.

The presence of rock salt on the steps on which appellant slipped and

fell constituted an open and obvious condition that appellant should have, and did,

in fact, observe, and take appropriate measures to protect himself against as he

descended the stairs to the building’s front door.

Finally, appellant appeared to argue in his brief in opposition to

McLaughlin’s summary judgment motion that summary judgment was

inappropriate based on the attendant circumstances exception to the open and

obvious doctrine.
 Attendant circumstances, however, can create an exception to the open
and obvious doctrine and render summary judgment inappropriate.
Johnson v. Regal Cinemas, Inc., 8th Dist. Cuyahoga No. 93775, 2010-
Ohio-1761, ¶ 23. An “attendant circumstance” is “any significant
distraction that would divert the attention of a reasonable person in the
same situation and thereby reduce the amount of care an ordinary
person would exercise to avoid an otherwise open and obvious hazard.”
Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP-290, 2012-Ohio-
670, ¶ 10; Daher[,] 11th Dist. Lake No. 2014-L-061, 2015-Ohio-953, [at]
¶ 27 (finding that the “attendant circumstances” of a slip and fall may
create a material issue of fact as to whether the danger was open and
obvious). Such attendant circumstances include “‘all facts relating to
the event, such as time, place, surroundings or background and the
conditions normally existing that would unreasonably increase the
normal risk of a harmful result of the event.’” Johnson, quoting Klauss
v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 84799, 2005-Ohio-
1306, ¶ 20.

Carter, 2016-Ohio-5229, 68 N.E.3d 1284, at ¶ 18.

In the instant matter, appellant alleged that the attendant

circumstances exception to the open and obvious doctrine applied because the

stairway on which he slipped and fell was the only point of ingress and egress to his

apartment. Appellant’s argument is misplaced.

As noted above, appellant testified during his deposition that his view

of the stairway and the steps was not obstructed in any way, and that the area was

well lit. Appellant failed to establish that his attention was diverted in any way by a

distraction, much less a significant distraction, at the time of the accident.

Accordingly, the attendant circumstances exception is inapplicable.

For all of the foregoing reasons, and viewing the evidence in favor of

appellant, as the nonmoving party, we find that there are no genuine issues of
material fact that existed for trial. The trial court properly granted summary

judgment in favor of McLaughlin in this respect.

3. Negligence Per Se

In his brief in opposition to McLaughlin’s motion for summary

judgment, appellant appeared to raise a statutory negligence per se claim.

Specifically, appellant alleged that the stairway on which he slipped and fell was

hazardous because it did not have a handrail on either side of the steps, and that the

lack of a handrail was a patent defect.

In addition to common law negligence, a tenant may also establish a

landlord’s negligence under R.C. 5321.01 et seq., the Landlord-Tenant Act, for

injuries that are proximately caused by the landlord’s failure to fulfill the duties set

forth in R.C. 5321.04(A). Shroades v. Rental Homes, Inc., 68 Ohio St.2d 20, 427

N.E.2d 774 (1981). R.C. 5321.04 provides, in relevant part,

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

(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;

(3) Keep all common areas in a safe and sanitary condition;

(4) Maintain in good and safe working order and condition all
electrical, plumbing, sanitary, heating, ventilating, and air conditioning
fixtures and appliances, and elevators, supplied or required to be
supplied by him[.]
 A landlord’s failure to fulfill the duties imposed by Ohio’s Landlord-

Tenant Act constitutes negligence per se. DeFreeze, 8th Dist. Cuyahoga No. 107090,

2019-Ohio-699, at ¶ 15. When a plaintiff establishes that a landlord violated these

duties, the plaintiff’s burden to establish the existence of a duty and the breach of

that duty is extinguished. Id., citing Allstate Ins. Co. v. Henry, 12th Dist. Butler No.

CA2006-07-168, 2007-Ohio-2556, ¶ 9-10, and Sikora v. Wenzel, 88 Ohio St.3d 493,

727 N.E.2d 1277 (2000), syllabus.

“A finding of negligence per se, however, does not result in strict

liability, as application of negligence per se merely establishes that the defendant

breached a duty owed to plaintiff.” Carter, 2016-Ohio-5229, 68 N.E.3d 1284, at

¶ 25, citing Mann, 2012-Ohio-2871, 973 N.E.2d 772, at ¶ 10, and Shroades at 25.

As an initial matter, we note that appellant testified during his

deposition that his slip and fall was caused by the presence of the rock salt on the

steps. Appellant did not testify, nor present evidence indicating that he fell as a

result of the lack of a handrail. Furthermore, appellant did not know whether the

applicable building code required a handrail on the stairway at issue, which

contained three steps. Appellant’s deposition at 27-28.

The trial court concluded that appellant failed to meet his burden of

demonstrating the existence of a genuine issue of material fact regarding the

stairway’s compliance with the building code and whether McLaughlin was

negligent per se. The trial court emphasized that appellant failed to present any
evidence that contradicted the evidence submitted by McLaughlin and his expert

witness Kraly.

In his reply brief in support of his motion for summary judgment,

McLaughlin presented the testimony and expert report of Kraly. Kraly opined that

McLaughlin’s property and the stairway on which appellant slipped and fell

complied with the relevant and applicable building code sections,3 and that the lack

of a handrail on the stairway did not constitute a “serious hazard.”4 As a result, Kraly

concluded that McLaughlin’s failure to install a handrail on the stairway at issue did

not constitute negligence per se. Appellant failed to come forward with any evidence

that disputed or contradicted Kraly’s testimony.

After reviewing the record, we find that appellant failed to

demonstrate the existence of a genuine issue of material fact regarding his

negligence per se claim.

As an initial matter, we note that appellant argues, for the first time in

his appellate brief, that the applicable building code required McLaughlin to install

a handrail on the stairway on which appellant slipped and fell. In support of this

argument, appellant cites a 1984 Ohio Attorney General Opinion, Section 1001.3 of

the Ohio Building Code, and the Ohio Fire Code. Appellant did not, however, raise

3 At the time of the December 2016 accident, the 2011 Ohio Building Code (“2011-
OBC”) was in effect.
4 A “serious hazard” is defined in Chapter 2 of the 2011-OBC as “[a] hazard of

considerable consequence to safety or health through the design, location, construction,
or equipment of a building, or the condition thereof, which hazard has been established
through experience to be of certain or probable consequence, or which can be determined
to be, or which is obviously such a hazard.”
any of these arguments in opposing McLaughlin’s motions for summary judgment

or reconsideration, nor did appellant present any evidence to this effect in order to

demonstrate the existence of a genuine issue of material fact. Appellant summarily

asserted in his brief in opposition to McLaughlin’s motion for summary judgment,

without citation to any applicable code sections or legal authority or further

development of the assertion, that the lack of a handrail on the stairway was a

“patent defect.”

A basic tenant of appellate jurisdiction is that a party may not raise an

argument on appeal that was not raised below. Goldfuss v. Davidson, 79 Ohio St.3d

116, 121, 679 N.E.2d 1099 (1997). “A party who fails to raise an issue in the trial

court waives the right to raise it on appeal.” Rimmer v. CitiFinancial, Inc., 8th Dist.

Cuyahoga No. 108081, 2020-Ohio-99, ¶ 37, citing Harding Pointe, Inc. v. Ohio

Dept. of Job & Family Servs., 2013-Ohio-4885, 1 N.E.3d 804, ¶ 43 (10th Dist.).

We summarily reject appellant’s claims regarding McLaughlin’s

failure to comply with the Ohio Attorney General’s 1984 Opinion, Section 1001.3 of

the Ohio Building Code, and the Ohio Fire Code. These claims were not raised below

in opposing McLaughlin’s motion for summary judgment or motion for

reconsideration, and as a result, they are not properly presented for review in this

appeal.

The expert testimony presented by McLaughlin established that the

stairway was in compliance with the building code, and the lack of a handrail on the

stairway did not constitute a “serious hazard.” Kraly further opined that appellant
failed to demonstrate that the conditions of the stairway were in violation of the

Landlord-Tenant Act. Kraly’s findings and conclusions were rendered “based upon

a reasonable degree of architectural certainty.”

Appellant failed to establish that McLaughlin’s failure to replace the

handrail on the stairway on which appellant slipped and fell constituted a violation

of R.C. 5321.04 and negligence per se, or a violation of the building code.

Furthermore, assuming, arguendo, that McLaughlin’s failure to install a handrail on

the stairway at issue constituted negligence per se, appellant did not allege, much

less demonstrate, that the lack of a handrail was the proximate cause of his slip and

fall. See Capella v. Historic Developers, L.L.C., 12th Dist. Butler No. CA2017-07-

109, 2018-Ohio-546, ¶ 43, citing Johnston v. Filson, 12th Dist. Clinton No. CA2014-

04-007, 2014-Ohio-4758, ¶ 10 (emphasizing that negligence per se does not relieve

a plaintiff of his or her obligation to prove that the defendant’s breach of a statutory

duty was the proximate cause of the plaintiff’s injury).

As noted above, appellant testified during his deposition that he

slipped and fell on the rock salt. Appellant also testified that as he descended the

stairway, he had a garbage bag in his right hand, and his left hand was on the wall.

In his appellate brief, appellant contends that his deposition testimony

about his hand being on the wall “provides sufficient evidence that the lack of a

handrail caused, or at least contributed to, [appellant’s] fall.” Appellant’s brief at 6.

To the extent that appellant contends that had his hand been on a handrail rather

than on the wall, he would not have slipped and fell, this argument is entirely
speculative and appellant has failed to come forward with any evidence to this effect.

Accordingly, appellant cannot demonstrate the existence of a genuine issue of

material fact regarding whether the lack of a handrail was the proximate cause of his

slip and fall.

For all of the foregoing reasons, and viewing the evidence in favor of

appellant as the nonmoving party, we find that there are no genuine issues of

material fact that existed for trial. The trial court properly granted summary

judgment in favor of McLaughlin in this respect.

Appellant’s sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_____________________________
FRANK D. CELEBREZZE, JR., JUDGE

ANITA LASTER MAYS, P.J., and
LARRY A. JONES, SR., CONCUR