NOT RECOMMENDED FOR PUBLICATION File Name: 21a0484n.06
No. 21-3306
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
JEFFREY KAHL, Administrator of the Estate of ) FILED HEATHER KAHL, ) Oct 26, 2021 ) DEBORAH S. HUNT, Clerk Plaintiff–Appellant, ) ) v. ) ) SPECTRUM SECURITY, LLC, doing business ) as Spectrum; TWC SECURITY, LLC, doing ) ON APPEAL FROM THE business as Time Warner; TWC SECURITY, ) UNITED STATES DISTRICT INC., doing business as Time Warner Cable; ) COURT FOR THE NORTHERN CHARTER COMMUNICATIONS, INC., doing ) DISTRICT OF OHIO business as Spectrum, ) ) OPINION Defendants–Appellees, ) ) and ) ) JOHN DOE #1, ) ) Defendant. ) )
Before: GUY, MOORE, and GIBBONS, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. After a fire at Heather Kahl’s house in
Mansfield, Ohio claimed her life, her husband, Jeffrey Kahl, brought this wrongful death suit
against the companies that provided the couple with alarm services: Spectrum, Time Warner, and
Time Warner Cable (collectively, the defendants).1 Jeffrey claimed that the defendants had acted
with negligence and gross negligence under Ohio law in their installation and monitoring of a
1 Because the couple shares a last name, we refer to each by their first name. No. 21-3306, Kahl v. Spectrum Security, LLC et al.
smoke alarm that Time Warner Cable had provided the house as part of a security system package,
and that this negligence and gross negligence led to Heather’s death. Because Jeffrey was unable
to identify any duty that could have rendered the defendants subject to tort liability, the district
court denied his motion for summary judgment and granted defendants’ motion for summary
judgment. For the following reasons, we AFFIRM.
I. BACKGROUND
A. Facts
Since 2003, the Kahls had lived in a two-bedroom, single-story, 844-square-foot house. R.
77-1 (Kahl Dep. at 8: 5, 55: 17–23) (Page ID #1089, 1101). On October 10, 2013, Heather
contracted with Time Warner Cable to have the company provide home security services through
a package called the “Intelligent Home System.” R. 85-17 (Work Order) (Page ID #1874–83).
Included in the package was one free smoke detector, which a Time Warner Cable employee,
Michael Blaney, installed. R. 85-17 (Work Order at 6) (Page ID #1879); R. 66-1 (Blaney Dep. at
68: 23–25, 69: 1–3) (Page ID #320). The smoke detector was linked remotely to a monitoring
center and could inform the company of different information, such as the outbreak of a fire. R. 76-
2 (Activity Log) (Page ID #1009–15).
At the time of the installation, the Kahl household had only one working smoke detector,
which was in the hallway outside the bedrooms. R. 77-1 (Kahl Dep. at 60–62, 123–24) (Page ID
#1102–03, 1118). Blaney replaced the old smoke detector with a new one in the same place.
R. 77-1 (Kahl Dep. at 132–33) (Page ID #1120). Jeffrey, who was out of town at the time,
remembers seeing that the old smoke detector had been taken down when he returned home. Id.
2 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
After the new smoke detector was installed, Jeffrey claims that Spectrum acquired Time Warner
Cable, a fact which the defendants do not dispute. Kahl Br. at 3 n.1.
In June 2017, Spectrum began to receive a series of signals from the Kahls’ smoke detector
indicating that the device had a low battery. R. 76-2 (Activity Log at 2) (Page ID #1010).
Spectrum kept an activity log of each of these signals and the company’s response to them. R. 76-
2 (Activity Log) (Page ID #1009–15). When Spectrum received such a signal, the company
notified Heather about the low battery by sending her an email and a text message as well as calling
her on the phone. R. 76-2 (Activity Log at 2) (Page ID #1010). The company also sent her a
replacement battery. Id.; R. 72-1 (Vault Dep. at 92) (Page ID #768). The low-battery problem
persisted into July, with Spectrum receiving a signal that indicated a “loss of supervision” from
the smoke detector. R. 76-2 (Activity Log at 2–3) (Page ID #1010–11). This led the company to
call Heather to schedule a service appointment for July 16, 2017, speaking with her directly to set
up the appointment. R. 76-2 (Activity Log at 3) (Page ID #1011). That appointment never took
place, however; on the scheduled day, Heather cancelled via text. R. 72-1 (Vault Dep. at 115)
(Page ID #791).
Spectrum continued to receive signals at various intervals concerning the smoke detector’s
low battery in the months that followed. R. 76-2 (Activity Log at 3–4) (Page ID #1011–12).
Again, the company sent Heather duplicative notifications of the issue each time that it received
and logged a signal. Id. No signal was recorded in Spectrum’s activity log on September 14,
2017, though Heather’s iControl panel—an in-home, central processing hub that allowed users of
the Intelligent Home System to monitor their various devices—indicated that the smoke detector
battery was low on that day. R. 76-2 (Activity Log at 4) (Page ID #1012); R. 85-17 (iControl
3 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
Panel) (Page ID #1936–37); R. 70-1 (de Vries Dep. at 33: 12–16) (Page ID #477). Spectrum did
log low-battery signals and attendant notifications to Heather on September 26, 2017, as well as
on October 12, 14, 15, and 16, 2017. R. 76-2 (Activity Log at 4–5) (Page ID #1012–13). By the
last notification on October 16, 2017, Spectrum had contacted Heather on thirteen different days
about the smoke detector’s low battery. R. 76-2 (Activity Log at 2–5) (Page ID #1009–13).
Then, sometime during either the evening of October 28 or early morning of October 29,
2017, a fire began in the house. R. 85-13 (Fire Rep. at 1) (Page ID #1865). Although investigators
were unable to establish its cause, the fire likely originated in or near either a closet or attic stairwell
that was close to the home’s kitchen, smoldered for some time, and then vented through the roof.
R. 85-11 (Fire Marshal Rep. at 4–6) (Page ID #1852–54); R. 68-1 (Paulus Dep. at 13: 13–16) (Page
ID #400); R. 82-1 (Illig Dep. at 55: 7–10) (Page ID #1400). At the time, Heather was alone in the
house and asleep in the living room on the couch. R. 85-25 (de Vries Rep. at 4) (Page ID #2241).
Eventually, a neighbor noticed flames projecting from the house’s roof and alerted the authorities.
R. 85-13 (Fire Rep. at 2) (Page ID #1866). By the time firefighters arrived, Heather was
unresponsive. R. 85-14 (EMS Rep. at 2) (Page ID #1870). She was transferred to the local hospital
and soon after pronounced dead due to the “[i]nhalation of products of combustion.” R. 85-12
(Coroner’s Rep. at 2–3) (Page ID #1857–58). The smoke detector never alerted Spectrum of the
fire. R. 76-2 (Activity Log at 5) (Page ID #1013).
B. Procedural History
Jeffrey, acting as administrator of Heather’s estate, initiated this lawsuit against the
defendants in the Cuyahoga County Court of Common Pleas. R. 1 (Notice of Removal at 1) (Page
ID #1). The defendants subsequently removed the case to the United States District Court for the
4 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
Northern District of Ohio, which had jurisdiction over the matter pursuant to the diversity statute,
28 U.S.C. § 1332(a). R. 1 (Notice of Removal) (Page ID #1–21). Jeffrey then amended his
complaint twice, alleging, among other claims, that the defendants had been negligent and grossly
negligent in their installing, servicing, and monitoring of the smoke detector, and that this negligent
and grossly negligent conduct was the proximate cause of Heather’s death.2 R. 26 (Second Am.
Compl. ¶¶ 11, 47) (Page ID #142, 147).
The defendants moved for summary judgment, arguing that they owed no duties to Heather
other than those embodied in their contract. R. 76 (Mot. Summ. J. at 6–10) (Page ID #979–82).
Jeffrey cross moved for summary judgment and argued that the defendants had been negligent per
se for failing to follow Ohio’s fire code, which he claimed mandated that the defendants install
smoke detectors in every sleeping room, outside every sleeping room, and at least one on every
level. R. 85 (Mot. Summ. J. at 12–15) (Page ID #1738–41). Jeffrey also claimed that the
defendants were negligent per se for failing to alert Heather of a low-battery signal it received on
September 14, 2017. R. 85 (Mot. Summ. J. at 15–17) (Page ID #1741–43). The district court
denied Jeffrey’s motion for summary judgment and granted the defendants’ motion for summary
judgment. R. 96 (Dist. Ct. Mem. Op) (Page ID #2394–2417). Jeffrey filed a timely appeal. R. 98
(Notice of Appeal) (Page ID #2419–20).
2 Jeffrey also brought a survivorship claim, a claim for punitive damages, a claim for breach of implied warranty of merchantability, a claim for breach of implied warranty of fitness for a particular purpose, several claims under Ohio consumer protection and products liability statutes, and a claim for breach of contract for unworkmanlike performance. R. 26 (Second Am. Compl. at 3–8) (Page ID #142–47). The district court granted the defendants’ motion for summary judgment on all these claims, and Jeffrey does not appear to renew his arguments regarding them on appeal. R. 96 (Dist. Ct. Mem. Op.) (Page ID #2394–2417). See Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th Cir. 2013) (“This court has consistently held that arguments not raised in a party’s opening brief, as well as arguments adverted to in only a perfunctory manner, are waived.”).
5 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
II. ANALYSIS
We review the district court’s grant of summary judgment de novo, viewing all evidence
in the light most favorable to the nonmoving party. Sigler v. American Honda Motor Co., 532
F.3d 469, 482 (6th Cir. 2008). Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “The moving party bears the burden of showing the absence of any
genuine issues of material fact.” Sigler, 532 F.3d at 483. “Once the movant has satisfied its
burden, the nonmoving party must ‘come forward with evidence showing that there is a genuine
issue for trial.’” Id. (quoting Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000)). This
standard remains the same when the parties have both moved for summary judgment. Craig v.
Bridges Bros. Trucking LLC, 823 F.3d 382, 387 (6th Cir. 2016).
On appeal, Jeffrey argues that the defendants owed Heather and him two separate duties of
care: first, a duty to install more smoke detectors in the house; and, second, a duty to warn Heather
about the fire as well as about the low-battery signal from September 14, 2017.3 Kahl Br. at 10–
14, 37–38. Because Jeffrey argues that these duties arise under Ohio law, we look to the decisions
of the Ohio Supreme Court for guidance. Perry v. Allstate Indem. Co., 953 F.3d 417, 421 (6th Cir.
2020). The court has not ruled on whether state law imposes on alarm companies the duties
described by Jeffrey. For this reason, we must “look to the decisions of [Ohio’s] lower courts, to
the extent they are persuasive, to predict how the Ohio Supreme Court would decide the issue[s]”
3 Jeffrey spends much effort on disputing the existence and enforceability of a contract between Heather and the defendants. Kahl Br. at 15–34. This strategy appears to be aimed at invalidating certain terms in the contract purporting to limit or even eliminate Spectrum’s liability. Jeffrey concludes in his reply brief, “[s]ince the contract is unproven, illegal, and void, then the exculpatory clause is similarly void and unenforceable.” Kahl Reply Br. at 15. Because we affirm the district court for non-contractual reasons, we do not address these issues.
6 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
presented by this appeal. Id. Before turning to these decisions, however, we outline the basic
framework that guides whether a duty exists under Ohio tort law.
“It is rudimentary that in order to establish actionable negligence, one must show the
existence of a duty, a breach of the duty, and an injury resulting proximately therefrom.” Menifee
v. Ohio Welding Prods., Inc., 472 N.E.2d 707, 710 (Ohio 1984); see also Winkle v. Zettler Funeral
Homes, Inc., 912 N.E.2d 151, 161 (Ohio Ct. App. 2009) (detailing elements for gross negligence).
“Duty, as used in Ohio tort law, refers to the relationship between the plaintiff and the defendant
from which arises an obligation on the part of the defendant to exercise due care toward the
plaintiff.” Wallace v. Ohio Dep’t of Com. 773 N.E.2d 1018, 1026 (Ohio 2002) (quoting Com. &
Indus. Ins. Co. v. City of Toledo, 543 N.E.2d 1188, 1192 (Ohio 1989)). Whether a duty exists is a
question of law that the court must decide. Mussivand v. David, 544 N.E.2d 265, 270 (Ohio 1989).
To this end, “a duty may be established by common law, legislative enactment, or by the particular
facts and circumstances of the case.” Chambers v. St. Mary’s Sch., 697 N.E.2d 198, 201 (Ohio
1998). Jeffrey focuses on the common law and, especially, legislative enactments.
Although statutes may impose a tort duty, not every violation of a statutory duty is a tort.
Specificity is key. On the one hand, “[w]here a legislative enactment imposes a specific duty for
the safety of others, failure to perform that duty is negligence per se.” Id.; see also Lang v. Holly
Hill Motel, Inc., 909 N.E.2d 120, 124 (Ohio 2009) (“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;
no other facts are relevant.”). To qualify as “specific,” such an enactment must establish “‘a
positive and definite standard of care . . . whereby a jury may determine whether there has been a
7 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
violation thereof by finding a single issue of fact.’” Sikora v. Wenzel, 727 N.E.2d 1277, 1280
(Ohio 2000) (quoting Chambers, 697 N.E.2d at 201). On the other hand, a statute that contains
only “a general, abstract description of a duty” will not suffice to impose a duty for tort law. Id.
With all this in mind, we examine each duty that Jeffrey describes in turn.
A. Duty to Install More Smoke Detectors
To support his claim that the defendants owed Heather a duty to install additional smoke
detectors, Jeffrey focuses on parts of the Ohio Fire Code, see Ohio Admin. Code § 1301:7-7-
01(A)(1) (2013), specifically those found in Ohio Administrative Code § 1301:7-7-09.4 Kahl Br.
at 27–28, 32. The provisions of the Ohio Fire Code contained in § 1301:7-7-09 govern where “fire
protection systems are required.” Ohio Admin. Code § 1301:7-7-09(A)(1). Smoke detectors
qualify as fire protection systems. See Ohio Admin. Code §§ 1301:7-7-09(B)(1), 1301:7-7-02
(“Fire protection systems” are “[a]pproved devices, equipment and systems or combinations of
systems used to detect a fire, activate an alarm, extinguish or control a fire, control or manage
smoke and products of a fire or any combination thereof.”). Jeffrey points to a series of provisions
in Ohio Administrative Code § 1301:7-7-09 that he argues mandated that smoke detectors should
have been installed in every sleeping room, outside of each such room, and on every level in his
home.5 See, e.g., Ohio Admin. Code § 1301:7-7-09(A)(6)(a), (G)(2)(j)(i), (G)(2)(k)(i), (G)(3).
4 Unless otherwise noted, we cite the 2013 version of the Ohio Fire Code as this was the governing law at the time of the installation and the relevant portions remained unchanged from that time up through the fire. 5 Jeffrey also directs our attention to § 29.5.1 of the NFPA 72: The National Fire Alarm and Signaling Code (2013). Kahl Br. at 12, 27. Published by the National Fire Protection Association, the NFPA 72 is a set of standards that the organization recommends govern fire-alarm systems. See NFPA 72, § 1.2.1. On its own, the publication does not have the force of law. This is apparent from the section of the NFPA 72 that Jeffrey quotes, which explains that smoke detectors, “[w]here required by other governing laws, codes, or standards for a specific type of occupancy,” must be installed in every sleeping room, outside of each such room, and on every level. NFPA 72, § 29.5.1 (emphasis added). Because Jeffrey relies on the Ohio Fire Code to incorporate the standards contained in the NFPA 72, we focus our analysis on the state fire code.
8 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
The Ohio Fire Code is an administrative regulation promulgated by the Ohio Fire Marshal.
See Ohio Revised Code § 3737.82. Recognizing that an administrative code is not a legislative
enactment, Jeffrey argues that two Ohio statutes mandated that the defendants follow the
requirements for smoke detectors set out in the Ohio Fire Code. Kahl Br. at 26. The first, Ohio
Revised Code § 3737.51(A), provides: “No person shall knowingly violate any provision of the
state fire code or any order made pursuant to it.” The second, Ohio Revised Code § 3737.65(A),
mandates that “[n]o person shall sell, offer for sale, or use any fire protection or fire fighting
equipment that does not meet the minimum standards established by the fire marshal in the state
fire code.”
Whether an administrative regulation such as the Ohio Fire Code can create a duty for the
purposes of tort liability under Ohio law, or rather whether violation of such a regulation may serve
only as evidence of a dangerous condition, is unclear.6 We do not need to predict how the Ohio
Supreme Court would resolve this issue, however. Even if the Ohio Fire Code does impose a tort-
based duty to install more smoke detectors, the code is clear about whose duty this is. As Ohio
Administrative Code § 1301:7-7-01(G)(5) provides: “Correction and abatement of violations of
this code shall be the responsibility of the owner.” In other words, it was not the defendants who
were obligated to install more smoke detectors in the Kahl residence. Instead, it was the Kahls’
6 The Ohio Supreme Court has sent mixed messages about whether an administrative regulation such as the Ohio Fire Code can create a duty for the purpose of tort liability. In two cases, Chambers v. St. Mary’s School and Lang v. Holly Hill Motel, Inc., the court rejected the idea. See Lang, 909 N.E.2d at 124; Chambers, 697 N.E.2d at 202. Between these cases, however, the court decided Sikora v. Wenzel, in which it held that the Ohio Building Code—another administrative regulation—could create a duty of care where a statute mandated that it be followed by landlords. See Sikora, 727 N.E.2d at 1282. In Lang, the Ohio Supreme Court did not refer to Sikora. At least one lower court has reconciled Lang and Sikora by holding that if compliance with an administrative regulation is mandated by a legislative enactment, then that regulation can impose a duty of care the violation of which constitutes negligence per se. See Riehl v. Bird’s Nest, Inc., No. OT-09-003, 2009 WL 4893384, at *4 (Ohio Ct. App. Dec. 18, 2009).
9 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
responsibility as the owners of the home to bring the property into compliance with the Ohio Fire
Code by installing the requisite number of smoke detectors.
The Ohio cases that Jeffrey cites regarding the duty to install more smoke detectors bolster
rather than undermine this point. Kahl Br. at 35–36. These cases all involved landlords. See
Shump v. First Continental-Robinwood Assocs., 644 N.E.2d 291, 293 n.1, 297–98 (Ohio 1994);
Baraby v. Swords, 851 N.E.2d 559, 567 (Ohio Ct. App. 2006); Burdick v. Nevel, No. 98AP-697,
1999 WL 235435, at *2 (Ohio Ct. App. Apr. 20, 1999). Given that landlords are owners, the Ohio
Fire Code would clearly mandate that they fix any violations of the code such as an insufficient
number of smoke detectors present at their properties. So, too, does the state’s fire code dictate
that the Kahls, not the defendants, needed to ensure that more smoke detectors were installed in
the house.7 For this reason, we are unpersuaded by Jeffrey’s attempt to ground his first duty in the
Ohio Fire Code and its application to the defendants through two statutes—§ 3737.51(A) and
§ 3737.65(A)—found in the Ohio Revised Code.
B. Duty to Warn
Turning next to whether the defendants owed Heather any duty to warn, Jeffrey details two
distinct duties. First, he argues that the defendants owed Heather and the rest of the Kahl
household a general common-law duty to provide early warning of the fire based on § 323 and
§ 324A of the Restatement (Second) of Torts (Am. L. Inst. 1965). Kahl Br. at 37–38. Jeffrey does
not specify further what this duty entailed regarding the defendants’ installing, servicing, and
7 For the same reason, Jeffrey’s argument that another law—an ordinance enacted by the City of Mansfield that incorporated the 2007 version of the Ohio Fire Code—imposed specific enough duties on the defendants to render them subject to tort liability is unpersuasive. See Mansfield, Ohio Ordinances ch. 1501. Kahl Br. at 27. Ohio Administrative Code § 1301:7-7-01(G)(5) (2007) also placed the responsibility for the correction of fire code violations on a property’s owner.
10 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
monitoring of the smoke detector. Second, Jeffrey maintains that the defendants owed Heather a
more particular duty under the NFPA 72 to notify her about the low-battery signal occurring on
September 14, 2017. Kahl Br. at 51–54. Neither theory leads us to conclude that the district court
improperly granted the defendants’ motion for summary judgment.
Although Jeffrey’s argument concerning the duty to warn is vague, we need not inquire
into the source of the obligation. Even if such a duty existed, the defendants argue that Heather
impliedly assumed the risks associated with a non-working smoke detector when she repeatedly
ignored Spectrum’s notifications about the issue. Spectrum Br. at 19–20. The defendants argued
in the district court that Heather had assumed the risk, but the court did not address this argument.
R. 76 (Mot. Summ. J. at 10–11) (Page ID #982–83); R. 96 (Dist. Ct. Mem. Op. at 17 n.15) (Page
ID #2410). We may affirm the district court’s decision on other grounds, however, if those
grounds are supported by the record. See Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000)
(en banc). Because we conclude that Heather assumed the risk of a nonfunctioning smoke detector,
we affirm on these grounds.
“Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an
appreciated, known or obvious risk to plaintiff’s safety.” Collier v. Northland Swim Club,
518 N.E.2d 1226, 1228 (Ohio Ct. App. 1987). Under Ohio law, implied assumption of risk is not
a standalone defense to tort liability. Instead, if a plaintiff impliedly assumed a risk, then this will
result in a court finding the plaintiff to be negligent to some degree. See Gallagher v. Cleveland
Browns Football Co., 659 N.E.2d 1232, 1236 (Ohio 1996); Anderson v. Ceccardi, 451 N.E.2d
11 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
780, 783 (Ohio 1983); Stewart v. Urig, 893 N.E.2d 245, 250 (Ohio Ct. App. 2008).8 For a plaintiff
to recover in a tort suit, the negligence that results from the plaintiff assuming a risk must be less
than the combined negligence of the defendants. See Ohio Rev. Code § 2315.33; Mayhew v.
Massey, 86 N.E.3d 758, 773 (Ohio Ct. App. 2017). If a plaintiff seeks damages for the wrongful
death of another, then the court will factor into the comparative negligence calculation whether the
decedent impliedly assumed a risk that led to their demise. See Hirschbach v. Cincinnati Gas &
Elec. Co., 452 N.E.2d 326, 329–30 (Ohio 1983).
Generally, apportioning relative degrees of negligence is a question of fact and ought “to
be done by the jury in a jury trial.” Collier, 518 N.E.2d at 1229. Summary judgment may be
appropriate, however, “where, after construing the evidence most strongly in plaintiff’s favor, a
reasonable person could only conclude that plaintiff’s negligence was greater than the negligence
of defendant.” Id. at 1230; see also Bundschu v. Naffah, 768 N.E.2d 1215, 1221 (Ohio Ct. App.
2002) (noting how implied “assumption of the risk is subsumed under Ohio’s comparative
negligence scheme, and does not act as a bar to recovery unless the plaintiff’s negligence in
consenting to the risk is greater than the defendant’s negligence”). As a result, Ohio courts do
grant summary judgment to defendants in the “rare circumstance,” Mayhew, 86 N.E.3d at 773,
where the only reasonable conclusion is that a plaintiff assumed the risk, and that the plaintiff’s
negligence exceeded the negligence of the defendants. See, e.g., id. at 773–74; Westfall v. Lemon,
8 Although Jeffrey argues otherwise, Anderson v. Ceccardi does not demonstrate that the doctrine of implied assumption of the risk is inapplicable in his case. See Kahl Reply Br. at 22. In Anderson, although a tenant repeatedly warned a landlord about faulty steps leading to the front door of a rental property, the Ohio Supreme Court rejected the landlord’s attempt to raise implied assumption of the risk as a defense, noting that negligence per se applied. 451 N.E.2d at 784. As Jeffrey has not established negligence per se, implied assumption of the risk is an available defense.
12 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
No. 14CA12, 2015 WL 459283, at *9 (Ohio Ct. App. Jan. 27, 2015); Deem v. Columbus S. Power
Co., No. 07CA6, 2007 WL 2421409, at *4 (Ohio Ct. App. Aug. 22, 2007).
Under the unique facts of this case, a reasonable person must conclude that Heather’s
negligence in failing to heed the warnings provided by Spectrum about the low-battery signal
outweighed any negligence by the defendants. At the outset, we emphasize that this is not a case
where a fire-alarm company provided little or no warning about faulty equipment. Starting in June
2017, Spectrum repeatedly notified Heather of the smoke detector’s dying battery, using different
mediums to send duplicative alerts. R. 76-2 (Activity Log at 2–5) (Page ID #1010–13). The
company also provided a complimentary replacement battery to fix the problem. R. 76-2 (Activity
Log at 2) (Page ID #1010); R. 72-1 (Vault Dep. at 92) (Page ID #768). When the issue persisted
after Spectrum shipped the new battery to Heather, the company scheduled a maintenance
appointment to have a technician examine the smoke detector. R. 76-2 (Activity Log at 3) (Page
ID #1011). Heather was certainly aware of the problem with the smoke detector as she cancelled
that appointment the day it was scheduled to take place. R. 72-1 (Vault Dep. at 115) (Page ID
#791).
Jeffrey’s focus on the failure to notify Heather on September 14 of the low-battery signal
that day does not alter the fact that Heather knew that there was a problem with the smoke detector,
and that the risks posed by this problem were obvious. It is true that the iControl panel in the Kahl
residence registered a low-battery signal on September 14 and that the defendants did not alert
Heather of that problem that day. R. 85-17 (iControl Panel) (Page ID #1936–37); R. 76-2 (Activity
Log at 4) (Page ID #1012). Crucially, however, Spectrum made five attempts after September 14
to alert Heather to the issue, the last attempt coming approximately two weeks before the fire.
13 No. 21-3306, Kahl v. Spectrum Security, LLC et al.
R. 76-2 (Activity Log at 4–5) (Page ID #1012–13). These efforts came in the form of emails, texts,
and phone calls. Id. In total, between the time when the low-battery signals began in late June
and the time of the fire in late October, Spectrum reached out to Heather on thirteen different days
to alert her of the problem. R. 76-2 (Activity Log at 2–5) (Page ID #1010–13). Given that the
Kahl residence had only one smoke detector, a dying battery in the device also presented an
obvious risk that there would be no alarm in the event of a fire. Consequently, and despite the
tragic outcome, we conclude that summary judgment was appropriate on the duty-to-warn claims
under Ohio law.
III. CONCLUSION
Because it was proper to grant the defendants’ motion for summary judgment on Jeffrey’s
negligence and gross negligence claims, it follows that the district court’s decision to deny
Jeffrey’s motion for summary judgment on these claims was also proper. Therefore, we AFFIRM
the district court’s judgment.