[Cite as In re V.R., 2014-Ohio-5061.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
V.R., a minor, : APPEAL NO. C-140230 TRIAL NO. A-1104516 JENNIFER SANCHEZ, : and : RUBEN R. O P I N I O N. : Plaintiffs-Appellants, : vs. : CINCINNATI-HAMILTON COUNTY COMMUNITY ACTION AGENCY, :
Defendant-Appellee, :
and :
JOHN DOE EMPLOYEE, :
OHIO DEPARTMENT OF JOB AND : FAMILY SERVICES,
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 14, 2014
Law Offices of Blake R. Maislin, LLC, and Thomas J. Dall, Jr., for Plaintiffs- Appellants,
Reminger Co., LPA, Robert W. Hojnoski and Carrie M. Starts, for Defendant- Appellee.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Plaintiffs-appellants Jennifer Sanchez, Ruben R., and their minor
daughter, V.R., appeal the decision of the trial court granting summary judgment to
defendant-appellee Cincinnati-Hamilton County Community Action Agency (“CAA”)
stemming from an injury sustained by V.R. with a boxcutter that had been used in
repairing Sanchez’s apartment. Because we determine that the appellee owed no
duty to V.R. with respect to her injury, we affirm the judgment of the trial court.
{¶2} Sanchez and her three children lived in a two-story townhome owned
and operated by CAA. CAA is a nonprofit entity that provides housing to single
mothers in financial need. Sanchez requested maintenance work for a small area on
the wall behind the toilet in the upstairs bathroom that had moisture damage. Josh
Hill, a maintenance employee for CAA, responded to Sanchez’s request.
{¶3} Sanchez’s longtime boyfriend and the father of her three children,
Ruben, showed Hill the problem area in the bathroom. Ruben worked in various
jobs in the construction industry, and his primary vocational skill was drywall work.
Hill had come to Sanchez’s home with a mudding knife and pan, but no other tools,
and Ruben instructed Hill that the problem could not be fixed by applying mud over
the drywall because the problem would reoccur. Ruben insisted that Hill needed to
cut an area out of the wall. Hill tried to cut a portion of the wall with his mudding
knife, but when that did not work, Ruben retrieved his boxcutter. Ruben then
proceeded to talk Hill through the repair by telling him the correct way to cut the
problem out to keep the moisture and mildew away. After Hill had cut out the area,
Ruben then instructed Hill on how to apply mud.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} As Hill finished up the repair, Sanchez called Ruben downstairs, and
Ruben saw Hill leave minutes later. While Ruben and Sanchez were downstairs in
the kitchen, their two-year-old-son and V.R., then four years old, went upstairs,
unbeknownst to their parents. Ruben and Sanchez then heard a scream coming from
upstairs, and they discovered V.R. had sliced her finger trying to take the boxcutter
away from her little brother. V.R. had three surgeries to repair the tendon and nerve
in her finger.
{¶5} Sanchez, Ruben, and V.R., filed an action against CAA, alleging
negligence per se and common-law negligence. In their negligence-per-se claim,
appellants argued that CAA breached its duty under R.C. 5321.04 to repair and
maintain the rental property in a safe, habitable condition. In their common-law
negligence claim, appellants alleged that CAA carelessly permitted a hazardous
condition—the boxcutter—to remain in reach of the children after the repair.
Appellants also named as a defendant in the action “John Doe employee”—meaning
Hill; however, once appellants discovered Hill’s identity, they never amended their
complaint to name Hill. See Civ.R. 3(A); Civ.R. 15(D). Sanchez and Ruben also
claimed loss of consortium damages as a result of V.R.’s injury. Appellants named
the Ohio Department of Job and Family Services as a party to the extent that it had a
right of subrogation as to any relief recovered by appellants.
{¶6} CAA deposed Ruben and Sanchez. Most of the underlying facts came
from Ruben’s deposition, because Sanchez had little first-hand knowledge of the
events leading up to V.R.’s injury. CAA then moved for summary judgment as to all
of appellants’ claims. CAA argued that it owed no duty with respect to V.R.’s injury,
and that no statutory violation occurred to support a negligence-per-se claim.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Appellants responded to CAA’s motion with affidavits from Ruben and Sanchez.
Ruben’s affidavit largely summarized his deposition testimony; however, Ruben
averred that Hill had left Sanchez’s townhome “with no notice.” The trial court heard
oral argument on CAA’s motion and subsequently granted the motion. This appeal
ensued.
{¶7} In two assignments of error, appellants argue that the trial court erred
in granting summary judgment in favor of CAA.
{¶8} Summary judgment is appropriate when no genuine issues of material
fact remain to be decided, the moving party is entitled to judgment as a matter of
law, and it appears from the evidence that reasonable minds can come to but one
conclusion, and with the evidence construed most strongly in favor of the nonmoving
party, that conclusion is adverse to that party. See Civ.R. 56(C); Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We review the grant of
summary judgment de novo. Jorg v. Cincinnati Black United Front, 153 Ohio
App.3d 258, 2003-Ohio-3668, 792 N.E.2d 781, ¶ 6 (1st Dist.).
{¶9} To establish a cause of action for negligence, a plaintiff must show (1)
the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty,
(3) the defendant’s breach proximately caused the plaintiff’s injury, and (4) damages.
Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d
120, ¶ 10. A duty may be established by common law, by legislative enactment, or by
the particular facts and circumstances of the case. Chambers v. St. Mary’s School,
82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998).
{¶10} As a general matter, a property owner has no common-law duty to
warn individuals lawfully on the premises against known or open and obvious
4 OHIO FIRST DISTRICT COURT OF APPEALS
dangers—also known as the open-and-obvious doctrine. Robinson v. Bates, 112 Ohio
St.3d 17, 24, 2006-Ohio-6362, 857 N.E.2d 1195. The rationale for the open-and-
obvious doctrine is that an invitee or occupier of the property can reasonably be
expected to discover known or obvious dangers and protect against them. Daniels v.
Verai Ents., 1st Dist. Hamilton No. C-110440, 2012-Ohio-2264, ¶ 12, citing
Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d
1088, ¶ 5.
{¶11} In derogation of the common-law duties of landlords, the Ohio
legislature created various obligations upon landlords in the Landlord-Tenant Act.
See R.C. 5321.04. A landlord’s violation of a provision of the Landlord-Tenant Act
constitutes negligence per se, meaning that duty and breach have been conclusively
established. Cipollone v.
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[Cite as In re V.R., 2014-Ohio-5061.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
V.R., a minor, : APPEAL NO. C-140230 TRIAL NO. A-1104516 JENNIFER SANCHEZ, : and : RUBEN R. O P I N I O N. : Plaintiffs-Appellants, : vs. : CINCINNATI-HAMILTON COUNTY COMMUNITY ACTION AGENCY, :
Defendant-Appellee, :
and :
JOHN DOE EMPLOYEE, :
OHIO DEPARTMENT OF JOB AND : FAMILY SERVICES,
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 14, 2014
Law Offices of Blake R. Maislin, LLC, and Thomas J. Dall, Jr., for Plaintiffs- Appellants,
Reminger Co., LPA, Robert W. Hojnoski and Carrie M. Starts, for Defendant- Appellee.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Plaintiffs-appellants Jennifer Sanchez, Ruben R., and their minor
daughter, V.R., appeal the decision of the trial court granting summary judgment to
defendant-appellee Cincinnati-Hamilton County Community Action Agency (“CAA”)
stemming from an injury sustained by V.R. with a boxcutter that had been used in
repairing Sanchez’s apartment. Because we determine that the appellee owed no
duty to V.R. with respect to her injury, we affirm the judgment of the trial court.
{¶2} Sanchez and her three children lived in a two-story townhome owned
and operated by CAA. CAA is a nonprofit entity that provides housing to single
mothers in financial need. Sanchez requested maintenance work for a small area on
the wall behind the toilet in the upstairs bathroom that had moisture damage. Josh
Hill, a maintenance employee for CAA, responded to Sanchez’s request.
{¶3} Sanchez’s longtime boyfriend and the father of her three children,
Ruben, showed Hill the problem area in the bathroom. Ruben worked in various
jobs in the construction industry, and his primary vocational skill was drywall work.
Hill had come to Sanchez’s home with a mudding knife and pan, but no other tools,
and Ruben instructed Hill that the problem could not be fixed by applying mud over
the drywall because the problem would reoccur. Ruben insisted that Hill needed to
cut an area out of the wall. Hill tried to cut a portion of the wall with his mudding
knife, but when that did not work, Ruben retrieved his boxcutter. Ruben then
proceeded to talk Hill through the repair by telling him the correct way to cut the
problem out to keep the moisture and mildew away. After Hill had cut out the area,
Ruben then instructed Hill on how to apply mud.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} As Hill finished up the repair, Sanchez called Ruben downstairs, and
Ruben saw Hill leave minutes later. While Ruben and Sanchez were downstairs in
the kitchen, their two-year-old-son and V.R., then four years old, went upstairs,
unbeknownst to their parents. Ruben and Sanchez then heard a scream coming from
upstairs, and they discovered V.R. had sliced her finger trying to take the boxcutter
away from her little brother. V.R. had three surgeries to repair the tendon and nerve
in her finger.
{¶5} Sanchez, Ruben, and V.R., filed an action against CAA, alleging
negligence per se and common-law negligence. In their negligence-per-se claim,
appellants argued that CAA breached its duty under R.C. 5321.04 to repair and
maintain the rental property in a safe, habitable condition. In their common-law
negligence claim, appellants alleged that CAA carelessly permitted a hazardous
condition—the boxcutter—to remain in reach of the children after the repair.
Appellants also named as a defendant in the action “John Doe employee”—meaning
Hill; however, once appellants discovered Hill’s identity, they never amended their
complaint to name Hill. See Civ.R. 3(A); Civ.R. 15(D). Sanchez and Ruben also
claimed loss of consortium damages as a result of V.R.’s injury. Appellants named
the Ohio Department of Job and Family Services as a party to the extent that it had a
right of subrogation as to any relief recovered by appellants.
{¶6} CAA deposed Ruben and Sanchez. Most of the underlying facts came
from Ruben’s deposition, because Sanchez had little first-hand knowledge of the
events leading up to V.R.’s injury. CAA then moved for summary judgment as to all
of appellants’ claims. CAA argued that it owed no duty with respect to V.R.’s injury,
and that no statutory violation occurred to support a negligence-per-se claim.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Appellants responded to CAA’s motion with affidavits from Ruben and Sanchez.
Ruben’s affidavit largely summarized his deposition testimony; however, Ruben
averred that Hill had left Sanchez’s townhome “with no notice.” The trial court heard
oral argument on CAA’s motion and subsequently granted the motion. This appeal
ensued.
{¶7} In two assignments of error, appellants argue that the trial court erred
in granting summary judgment in favor of CAA.
{¶8} Summary judgment is appropriate when no genuine issues of material
fact remain to be decided, the moving party is entitled to judgment as a matter of
law, and it appears from the evidence that reasonable minds can come to but one
conclusion, and with the evidence construed most strongly in favor of the nonmoving
party, that conclusion is adverse to that party. See Civ.R. 56(C); Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We review the grant of
summary judgment de novo. Jorg v. Cincinnati Black United Front, 153 Ohio
App.3d 258, 2003-Ohio-3668, 792 N.E.2d 781, ¶ 6 (1st Dist.).
{¶9} To establish a cause of action for negligence, a plaintiff must show (1)
the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty,
(3) the defendant’s breach proximately caused the plaintiff’s injury, and (4) damages.
Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d
120, ¶ 10. A duty may be established by common law, by legislative enactment, or by
the particular facts and circumstances of the case. Chambers v. St. Mary’s School,
82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998).
{¶10} As a general matter, a property owner has no common-law duty to
warn individuals lawfully on the premises against known or open and obvious
4 OHIO FIRST DISTRICT COURT OF APPEALS
dangers—also known as the open-and-obvious doctrine. Robinson v. Bates, 112 Ohio
St.3d 17, 24, 2006-Ohio-6362, 857 N.E.2d 1195. The rationale for the open-and-
obvious doctrine is that an invitee or occupier of the property can reasonably be
expected to discover known or obvious dangers and protect against them. Daniels v.
Verai Ents., 1st Dist. Hamilton No. C-110440, 2012-Ohio-2264, ¶ 12, citing
Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d
1088, ¶ 5.
{¶11} In derogation of the common-law duties of landlords, the Ohio
legislature created various obligations upon landlords in the Landlord-Tenant Act.
See R.C. 5321.04. A landlord’s violation of a provision of the Landlord-Tenant Act
constitutes negligence per se, meaning that duty and breach have been conclusively
established. Cipollone v. Hoffmeier, 1st Dist. Hamilton No. C-060482, 2007-Ohio-
3788. The common law, open-and-obvious doctrine will not protect a landlord from
liability for breaches of statutory duties under the Landlord-Tenant Act; however, if
no statutory breach occurred, the open-and-obvious doctrine remains a bar to a
common-law negligence claim. See Robinson; Mann v. Northgate Investors LLC,
2012-Ohio-2871, 973 N.E.2d 772 (10th Dist.).
{¶12} In response to CAA’s summary-judgment motion, appellants argue
that CAA breached its statutory duty to repair under the Landlord-Tenant Act. R.C.
5321.04(A)(2) provides that a landlord must “[m]ake all repairs and do whatever is
reasonably necessary to put and keep the premises in a fit and habitable condition[.]”
In order to maintain a claim under R.C. 5321.04(A)(2), a plaintiff must show that the
premises are unfit and uninhabitable. January Invests., LLC v. Ingram, 12th Dist.
Warren No. CA2009-09-127, 2010-Ohio-1937, ¶ 26, citing Cipollone, 1st Dist.
5 OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-060482, 2007-Ohio-3788, at ¶ 22. This court has held that R.C.
5321.04(A)(2) requires the defects in the premises to be “so substantial as to amount
to a constructive eviction” and constitute “more than nuisances or trifles.” (Internal
quotation omitted.) Cipollone at ¶ 22.
{¶13} Appellants make no argument, nor point to any evidence in the record,
demonstrating that the premises were unsafe or uninhabitable such that they were
constructively evicted under R.C. 5321.04(A)(2). In the absence of any other
statutory duty breached by CAA, CAA is entitled to summary judgment on
appellants’ negligence-per-se claim. See Mullins v. Grosz, 10th Dist. Franklin No.
10AP-23, 2010-Ohio-3844, ¶ 29 (summary judgment was proper where the plaintiff
failed to assert any argument or provide any evidence that the defendant had
breached a provision of the Landlord-Tenant Act in response to a summary-
judgment motion).
{¶14} As to the common-law negligence claim, the open-and-obvious
doctrine bars the appellants’ claim that CAA breached a duty with regard to the
boxcutter. The evidence in the record demonstrates that Ruben loaned Hill the
boxcutter, and directed and observed Hill throughout the repair. Only when Hill
finished using the boxcutter and nearly completed the repair did Ruben head
downstairs.
{¶15} Although Ruben averred in his affidavit that Hill left Sanchez’s home
without notice, Ruben testified that he knew Hill was finished with the job and was
not going to come back when he saw Hill exit from the townhome. Appellants
cannot, “without sufficient explanation,” contradict deposition testimony in an
affidavit to defeat summary judgment. See Byrd v. Smith, 110 Ohio St.3d 24, 2006-
6 OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-3455, 850 N.E.2d 47, paragraph three of the syllabus. Ruben further testified
that after he had gone downstairs, he neglected to take his boxcutter with him, and
he simply “lost total track” of it as he became occupied with something else. Ruben
knew his boxcutter remained upstairs where one of his children could reasonably be
expected to come across it when playing upstairs unsupervised. The boxcutter was a
known risk to Ruben, and he failed to guard against that risk to protect to his
children. Thus, appellants failed to establish that CAA owed them a duty with
respect to the boxcutter.
{¶16} In conclusion, because appellants failed to establish that CAA owed
them a duty, and failed to establish that CAA breached a duty under the Landlord-
Tenant Act, CAA is entitled to judgment as a matter of law on appellants’ common-
law negligence claim and negligence-per-se claim. We affirm the judgment of the
trial court granting summary judgment to CAA.
Judgment affirmed.
CUNNINGHAM, P.J., and DINKELACKER, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.