Johnson v. Cincinnati Metro. Hous. Auth.

2022 Ohio 26

• Court: Ohio Court of Appeals
• Decided: January 7, 2022
• Docket: C-210240
• Status: Published

Opinion

[Cite as Johnson v. Cincinnati Metro. Hous. Auth., 2022-Ohio-26.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

TAKEITHA JOHNSON, : APPEAL NO. C-210240 TRIAL NO. A-2000012 Plaintiff-Appellee, :

vs. : O P I N I O N.

CINCINNATI METROPOLITAN : HOUSING AUTHORITY,

Defendant-Appellant. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: January 7, 2022

O’Connor, Acciani & Levy, LPA, and Elizabeth L. Acciani, for Plaintiff-Appellee,

Adams Law, PLLC, Jeffrey C. Mando and Daniel E. Linneman, for Defendant- Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Defendant-appellee Cincinnati Metropolitan Housing Authority

(“CMHA”) brings this appeal to challenge the trial court’s denial of summary

judgment on the issue of immunity under R.C. Chapter 2744. For the following

reasons, we affirm the judgment of the trial court in part, reverse the judgment of the

trial court in part, and remand the cause for further proceedings.

Procedural History

{¶2} On January 2, 2020, plaintiff-appellee Takeitha Johnson filed a

complaint against CMHA, alleging causes of action for negligence, breach of duty

under R.C. 5321.04, and breach of the implied warranty of habitability. CMHA

timely answered the complaint.

{¶3} CMHA filed a motion for summary judgment on October 9, 2020,

arguing that it was entitled to immunity under R.C. Chapter 2744. Johnson filed a

response in opposition to the motion for summary judgment, asserting that the

exception to immunity contained in R.C. 2744.02(B)(4) was applicable in this case.

A deposition of Johnson was attached to CMHA’s reply in support of its motion for

summary judgment.

{¶4} On March 25, 2021, the trial court denied CMHA’s motion for

summary judgment, finding that a genuine issue of material fact existed as to

whether CMHA negligently caused a physical defect on its grounds or buildings

under R.C. 2744.02(B)(4). Additionally, the trial court found that “the question of

whether CMHA breached their statutory duty to repair the non-slip mat is for a jury.”

CMHA timely filed a notice of appeal.

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Factual Background

Depositional Testimony of Takeitha Johnson

{¶5} Johnson began living at 523 Hickory Street (“the premises”) in 2012.

The premises is a two-story, two-bedroom studio house. On January 6, 2018,

Johnson fell when heading down the stairs because a “rubber mat” on the stairs was

“not fixed” or not in the place where it was supposed to be. The staircase has two

flights, and Johnson fell from the top of the stairs to a landing in the middle. After

she fell, her daughter called 911. Johnson sustained injuries to her wrist, arm, lip,

and knee as a result of the fall. She underwent multiple surgeries on her left arm and

wrist.

{¶6} The mat was on a step at the top of the stairs. Johnson testified that

someone would have to step on the mat to realize there was an issue. Johnson knew

there was an issue with the mat from walking on it every day. She testified that the

mat would “shift” when she would step on it. When the mat would shift, she would

push it back in place with her hands and her leg. She did this frequently. She walked

through this area multiple times a day.

{¶7} Johnson informed CMHA there was an issue with the mat during an

inspection in March or April of 2017. The CMHA representative she spoke to took a

picture of the step on an iPad and put in a work order. After the inspection, Ms.

Ferguson from CMHA called Johnson and asked if any repairs had been made and

Johnson responded that no repairs had been made. Ms. Ferguson told Johnson to

give her about two weeks and she would send someone to fix it. No one came to

make the repairs. Johnson believed this phone call was in November. No repairs

were made to the step between the inspection and her fall.

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{¶8} Johnson testified that she did not know how the mat was supposed to

be secured to the steps. At the time that she was reporting the issue to CMHA, the

mat was loose, but not disconnected from the step. Some areas of the mat were still

connected. Johnson did not know if this was from glue or nails. She never tried to

remove the mat from the step because she was “not allowed.” She felt the step would

have been safer with the mat removed. CMHA fixed the mat after her fall.

Law and Analysis

{¶9} CMHA raises three assignments of error for our review, arguing that

the trial court erred in denying summary judgment on the issue of immunity for each

of Johnson’s three causes of action. We review the denial of sovereign immunity and

the trial court’s ruling on a motion for summary judgment de novo. Frank v.

Southwest Ohio Regional Transit Auth., 1st Dist. Hamilton No. C-200015, 2020-

Ohio-5497, ¶ 11. “Summary judgment is appropriate only when the following have

been established: (1) that there is no genuine issue as to any material fact; (2) that

the moving party is entitled to judgment as a matter of law; and (3) that reasonable

minds could come to only one conclusion, and that conclusion is adverse to the

nonmoving party.” Folmer v. Meigs Cty. Commrs., 4th Dist. Meigs No. 16CA17,

2018-Ohio-31, ¶ 20.

{¶10} “The Political Subdivision Tort Liability Act (“Act”), as codified in R.C.

Chapter 2744, establishes governmental immunity for political subdivisions and

their employees.” Frank at ¶ 13. “The Act ‘requires a three-tiered analysis to

determine whether a political subdivision should be allocated immunity from civil

liability.’ ” Id., quoting Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d

451, 2002-Ohio-6718, 780 N.E.2d 543, ¶ 10. “ ‘The first tier is the general rule that a

political subdivision is immune from liability incurred in performing either a

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governmental or a proprietary function.’ ” Id., quoting Anderson v. Massillon, 5th

Dist. Stark No. 2013CA00144, 2014-Ohio-2516, ¶ 35; R.C. 2744.02(A)(1). “However,

political-subdivision immunity is not absolute.” Id., citing R.C. 2744.02(B). “ ‘The

second tier of the analysis requires a court to determine whether any of the five listed

exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political

subdivision to liability.’ ” Id., quoting Anderson at ¶ 35. “ ‘If any of the exceptions to

immunity do apply, and if no defense in that section applies to negate the liability of

the political subdivision under that section, then the third tier of the analysis

requires an assessment of whether any defenses in R.C. 2744.03 apply to reinstate

immunity.’ ” Id., quoting Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955

N.E.2d 954, ¶ 15.

{¶11} Under the first tier, a public housing authority “fits neatly within the

definition of ‘political subdivision.’ ” Torrance v. Cincinnati Metro. Hous. Auth., 1st

Dist. Hamilton No. C-081292, 2010-Ohio-1330, ¶ 14, citing R.C. 3735.50. There is

also “no question that CMHA performs a governmental function by operating a

public housing authority.” Dornal v. Cincinnati Metro. Hous. Auth., 1st Dist.

Hamilton No. C-100172, 2010-Ohio-6236, ¶ 8, citing Moore v. Lorain Metro. Hous.

Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606, syllabus. Therefore,

under the first tier, CMHA is entitled to immunity under R.C. 2744.02(A)(1) if no

exception applies. The parties do not dispute this issue. Accordingly, our focus is on

the second tier and whether any of the exceptions in R.C. 2744.02(B) are applicable.

{¶12} The possible exceptions in R.C. 2744.02(B) are:

(1) Except as otherwise provided in this division, political

subdivisions are liable for injury, death, or loss to person or property

caused by the negligent operation of any motor vehicle by their

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employees when the employees are engaged within the scope of their

employment and authority.

***

(2) Except as otherwise provided in sections 3314.07 and

3746.24 of the Revised Code, political subdivisions are liable for

injury, death, or loss to person or property caused by the negligent

performance of acts by their employees with respect to proprietary

functions of the political subdivisions.

(3) Except as otherwise provided in section 3746.24 of the

Revised Code, political subdivisions are liable for injury, death, or loss

to person or property caused by their negligent failure to keep public

roads in repair and other negligent failure to remove obstructions from

public roads, * * *.

(4) Except as otherwise provided in section 3746.24 of the

Revised Code, political subdivisions are liable for injury, death, or loss

to person or property that is caused by the negligence of their

employees and that occurs within or on the grounds of, and is due to

physical defects within or on the grounds of, buildings that are used in

connection with the performance of a governmental function * * *.

(5) In addition to the circumstances described in divisions

(B)(1) to (4) of this section, a political subdivision is liable for injury,

death, or loss to person or property when civil liability is expressly

imposed upon the political subdivision by a section of the Revised

Code, including, but not limited to, sections 2743.02 and 5591.37 of

the Revised Code. Civil liability shall not be construed to exist under

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another section of the Revised Code merely because that section

imposes a responsibility or mandatory duty upon a political

subdivision, because that section provides for a criminal penalty,

because of a general authorization in that section that a political

subdivision may be sued and be sued, or because that section uses the

term “shall” in a provision pertaining to a political subdivision.

First Assignment of Error

{¶13} In its first assignment of error, CMHA argues that the trial court erred

in denying summary judgment on Johnson’s negligence claim because a “loose floor

mat” is not a “physical defect” under R.C. 2744.02(B)(4). Johnson’s negligence claim

alleged that the premises was owned and maintained by CMHA, CMHA negligently

maintained the “non-slip step mat” on the interior staircase of her home, and the

“non-slip step mat” detached from a step while she was descending, causing her to

fall down the staircase and sustain injuries.

{¶14} “To establish the physical-defect exception [under R.C.

2744.02(B)(4)], a plaintiff must allege that the injury, death, or loss (1) resulted from

employee negligence, (2) occurred within or on the grounds of buildings used in

connection with a governmental function, and (3) resulted from a physical defect

within or on the grounds of buildings used in connection with a governmental

function.” R.K. v. Little Miami Golf Ctr., 2013-Ohio-4939, 1 N.E.3d 833, ¶ 15 (1st

Dist.), citing Leasure v. Adena Local School Dist., 2012-Ohio-3071, 973 N.E.2d 810,

¶ 15 (4th Dist.).

{¶15} CMHA only challenges the third element, arguing that the stair mat is

not a “physical defect.” Thus, our analysis is limited to whether summary judgment

should have been granted because the mat could not be considered a physical defect

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under R.C. 2744.02(B)(4). “Although a ‘physical defect’ is not defined in R.C.

Chapter 2744, courts have defined a physical defect as a ‘perceivable imperfection

that diminishes the worth or utility of the object at issue.’ ” R.K. at ¶ 16, quoting

Hamrick v. Bryan City School Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio-

2572, ¶ 25. Put another way, courts have held that the physical-defect exception may

apply “if the instrumentality that caused the plaintiff’s injury did not operate as

intended due to a perceivable condition * * *.” Leasure at ¶ 20. Conversely, courts

have found that the physical-defect exception may not apply “when the

instrumentality that caused the plaintiff’s injury operated as intended.” Id. at ¶ 23.

{¶16} For example, in Leasure, the appellee, who sustained an injury when

she fell on the school gymnasium bleachers, sued the school district, and argued that

the failure to properly extend the bleachers resulted in a physical defect. Id. at ¶ 3, 7-

8. The school district argued that the bleachers could not have constituted a physical

defect because they were certified to be in working order. Id. at ¶ 26. The court

stated:

In the case sub judice, the failure to properly set up the

bleachers caused them to become unstable and, thus, to fail to operate

as intended. In other words, the improperly set up bleachers

contained a perceivable imperfection that impaired their utility. The

bleachers were obviously meant to be used in a safe and stable

manner. The improper set up resulted in the bleachers having the

ability to move while in use. Appellees did present some evidence that

the improperly set up bleachers resulted in the bottom step being

shorter than the other steps. If appellees’ evidence is believed, the

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short step constitutes a perceivable imperfection and it also impaired

the bleachers’ utility by failing to operate in a safe and stable manner.

Id. at ¶ 24. Therefore, the court found that the evidence did not show “that the

bleachers performed as intended,” because “the bleachers were intended to be set up

properly so they would not shift position or move while in use,” and “[t]hey were

not.” Id. at ¶ 25. Accordingly, the court agreed with the trial court that genuine

issues of material fact remained regarding whether the bleachers constituted a

physical defect. Id. at ¶ 29.

{¶17} On the other hand, in Hamrick, the appellant, a municipal utilities

worker who was dispatched to a school bus garage for an issue with water pressure,

sued the school district after he entered the bus garage through an unlocked door

and was later found seriously injured at the bottom of a “service pit.” Hamrick, 6th

Dist. Williams No. WM-10-014, 2011-Ohio-2572, at ¶ 2-7. The school district, which

maintained the garage, argued that the service pit was not a “physical defect” because

its purpose was to permit mechanics to get beneath the school buses to perform

maintenance and the pit operated as intended. Id. at ¶ 18. The appellant argued that

the pit should have been covered and that the “lip surrounding the pit” should have

been painted a different color. Id. at ¶ 23. The court of appeals found that there was

no evidence presented of “any discernable imperfection that diminished the utility of

either the bus garage or the service pit.” Id. at ¶ 29. Accordingly, the court stated,

“There is nothing of record to suggest that either did not perform as intended or was

less useful than designed.” Id. Therefore, the court affirmed the trial court’s grant of

{¶18} We find the instant case to be more comparable to the circumstances

in Leasure, 2012-Ohio-3071, 973 N.E.2d 810. Like the bleachers, the mat was not in

9 OHIO FIRST DISTRICT COURT OF APPEALS

the position it was intended to be and would shift or move while in use. Thus, the

evidence does not show that the mat operated as intended. CMHA argues that the

only issue with the mat was the “positioning” and as such the value of the mat was

not diminished and it remained “capable of operating as intended.” However, this is

not consistent with the record. Johnson testified that the mat would “shift” when she

would step on it. Hence, the issue with the mat is not just where the mat was

positioned. The issue is that the mat would move when walked on. The utility of a

rubber mat on a stair would certainly be diminished if the mat was in fact loose and

would shift when stepped on. Therefore, we find that genuine issues of material fact

exist as to whether the mat constituted a “physical defect” under R.C. 2744.03(B)(4).

Accordingly, we affirm the trial court’s denial of summary judgment on the issue of

immunity in regard to Johnson’s negligence claim.

Second and Third Assignments of Error

{¶19} In its second and third assignments of error, CMHA argues that the

trial court erred in denying summary judgment on Johnson’s second and third

claims because both claims derive from violations of the Landlord-Tenant Act and

these claims cannot meet the exception in R.C. 2744.02(B)(5) in order to defeat

CMHA’s immunity.

{¶20} Johnson did not provide a response to this argument in her brief to

this court.1 “Under App.R. 16(B), an appellee’s brief must conform to the same

requirements as an appellant’s brief.” Ayer v. Morenz-Harbinger, 1st Dist.

Hamilton Nos. C-190687 and C-190716, 2020-Ohio-6861, ¶ 24, citing Stanley Miller

1 Johnson also failed to provide a response to this argument in the trial court in her brief in opposition to the motion for summary judgment. The trial court did not directly address whether CMHA was entitled to immunity on these claims in its entry.

10 OHIO FIRST DISTRICT COURT OF APPEALS

Constr. Co. v. Ohio School Facilities Comm., 192 Ohio App.3d 676, 2011-Ohio-909,

950 N.E. 2d 218, ¶ 8 (10th Dist.). Thus, an appellee’s brief must contain detailed

arguments that comply with App.R. 16(A)(7). See id. App.R. 16(A)(7) requires the

appellee to present arguments “containing the contentions of the [appellee] with

respect to each assignment of error presented for review and the reasons in support

of the contentions, with citations to the authorities, statutes, and parts of the record

on which [appellee] relies.”

{¶21} “These procedural rules support the well-settled principle that it is not

the court’s duty to root out arguments supporting a party’s position on appeal.”

(Citation omitted.) Stanley Miller at ¶ 8. “Indeed, it is improper for an appellate

court to construct legal arguments to support a party’s position.” Id., citing State ex

rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, 850 N.E.2d 1218, ¶ 94.

{¶22} If a brief does not comply with the applicable appellate rules, a

reviewing court may apply App.R. 18(C). (Citations omitted.) State v. Wright, 4th

Dist. Scioto No. 04CA2958, 2005-Ohio-5539, ¶ 6. “App.R. 18(C) provides that if an

appellee fails to file a brief, a reviewing court may accept appellant’s statement of

facts and issues as correct and reverse the trial court’s judgment if the appellant’s

brief reasonably appears to sustain such an action.” Id.

{¶23} Because Johnson did not present any argument in her brief regarding

CMHA’s second and third assignments of error, we accept CMHA’s contentions that

Johnson’s second and third causes of action derive from violations of the Landlord-

Tenant Act contained in R.C. Chapter 5321 and that the only issue to be decided in

regard to these claims is whether a claim for a violation of the Landlord-Tenant Act

may proceed under the exception to immunity contained in R.C. 2744.02(B)(5). See

App.R.16(B), App.R. 16(A)(7), and App.R. 18(C). Johnson has not argued any other

11 OHIO FIRST DISTRICT COURT OF APPEALS

applicable exceptions, and we are prevented from constructing an argument for her

on appeal. See Stanley Miller, 192 Ohio App.3d 676, 2011-Ohio-909, 950 N.E.2d

218, at ¶ 8. Therefore, the sole issue before us on these assignments of error is

whether a violation of R.C. Chapter 5321 can proceed under the exception contained

in R.C. 2744.02(B)(5).

{¶24} This issue has already been decided by the Ohio Supreme Court in

Moore v. Lorlain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, 905

N.E.2d 606, ¶ 21 (holding that R.C. Chapter 5321 does not expressly impose liability

on a political subdivision as required for R.C. 2744.02(B)(5)). Consequently, CMHA

is correct that Johnson’s claims for violations of R.C. Chapter 5321 cannot proceed

under R.C. 2744.02(B)(5). Therefore, we must sustain CMHA’s second and third

assignments of error and hold that summary judgment should have been granted on

these claims. Accordingly, we find that appellant’s brief reasonably sustains reversal

of the trial court’s decision in this regard. See App.R. 18(C).

Conclusion

{¶25} For the foregoing reasons, we overrule the first assignment of error

and sustain the second and third assignments of errors. Accordingly, we affirm the

trial court’s judgment regarding the cause of action for negligence but reverse the

trial court’s judgment regarding the causes of action for breach of R.C. 5321.04 and

breach of implied warranty of habitability. The cause is remanded for further

proceedings.

Judgment affirmed in part, reversed in part, and cause remanded.

WINKLER and BOCK, JJ., concur.

Please note:

The court has recorded its own entry this date.