[Cite as Nero v. CWV Family Hous., L.L.C., 2016-Ohio-3314.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
RHODA NERO C.A. No. 27719
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE CWV FAMILY HOUSING, LLC COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2014-04-2164
DECISION AND JOURNAL ENTRY
Dated: June 8, 2016
MOORE, Judge.
{¶1} Plaintiff, Rhoda Nero, (“Tenant”) appeals from the judgment of the Summit
County Court of Common Pleas. This Court reverses and remands this matter for further
proceedings consistent with this decision.
I.
{¶2} Tenant leased a residential unit in a multifamily rental property which was owned
and operated by CWV Family Housing, LLC (“Landlord”). During her tenancy, Tenant was
walking down the stairs in the common area of the property when a step collapsed underneath
her, causing her to fall. In 2014, Tenant filed a complaint against Landlord alleging that she
suffered injuries due to Landlord’s failure to repair or maintain the stairs in the common area of
the property.
{¶3} Landlord answered the complaint and thereafter filed a motion for summary
judgment. Tenant opposed the motion. The trial court granted the motion. Tenant timely 2
appealed, and she now presents two assignments of error for our review. We have consolidated
the assignments of error in order to facilitate our discussion.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT FOR [LANDLORD] BY FINDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT REGARDING [LANDLORD’S] DUTY TO REPAIR AND MAINTAIN THE STAIRS.
ASSIGNMENT OF ERROR II
THE COURT ERRED BY FINDING THAT [TENANT] HAD ABANDONED COUNT II OF THE COMPLAINT.
{¶4} In her first and second assignments of error, Tenant argues that the trial court
erred in granting summary judgment in favor of Landlord on the first and second counts in her
complaint, respectively.
{¶5} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts
of the case in the light most favorable to the non-moving party and resolving any doubt in favor
of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).
{¶6} Pursuant to Civ.R. 56(C), summary judgment is proper only if:
(1) No genuine issue as to any material fact remains to be litigated; (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, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶7} The party moving for summary judgment bears the initial burden of informing the
trial court of the basis for the motion and pointing to parts of the record that show the absence of
a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). “If the 3
moving party fails to satisfy its initial burden, the motion for summary judgment must be
denied.” Id. at 293. Only where the moving party fulfills this initial burden, does the burden
shift to the nonmoving party to prove that a genuine issue of material fact exists. Id.
{¶8} Here, with respect to the first count of Tenant’s complaint, she maintained that
Landlord was negligent in that it failed to maintain the stairs and make necessary repairs to the
steps in the apartment complex. She also maintained that Landlord failed “to keep the apartment
stairs up to code.”
{¶9} In Landlord’s motion for summary judgment, it addressed the issues applicable to
this case by reference to common law premises liability, specifically the duty owed by premises
owners/occupiers to invitees, citing Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No.
08CA41, 2009-Ohio-4542, ¶ 26-27. In connection with this body of case law, and citing
Tenant’s deposition and Landlord’s executive manager’s affidavit in support, Landlord
maintained that it had no notice of any dangerous condition as to the steps, and that it performed
regular inspections on the premises. Tenant responded also citing cases relative to the duty owed
to invitees, see, e.g. Hidalgo v. Costco Wholesale Corp., 9th Dist. Lorain No. 12 CA010191,
2013-Ohio-847, and she maintained that there existed a triable issue on whether Landlord
conducted reasonable inspections.
{¶10} However, in its journal entry, the trial court did not discuss common law premises
liability aside from quoting Shump v. First Contintental-Robinwood Assocs., 71 Ohio St.3d 414,
418, 1994-Ohio-427, for the following proposition: “The legal duty that a landlord owes a tenant
is not determined by the common-law classifications of invitee, licensee, and trespasser under
the law of premises liability; instead, a landlord’s liability to a tenant is determined by a
landlord’s common-law immunity from liability and any exceptions to that immunity that a court 4
or a legislative body has created.” The trial court then went on to cite case law and statutes
pertaining to a landlord’s duties as codified in the Landlord-Tenant Act. See Mann v. Northgate
Investors, L.L.C., 138 Ohio St.3d 175, 2014-Ohio-455, ¶ 4, and R.C. 5321.04. The statutory
duties include keeping the premises in a fit and habitable condition, and keeping common areas
of the premises in a safe condition. See R.C. 5321.04(A)(2) and (A)(3). The trial court then
cited case law that pertains to a landlord’s liability predicated on negligence per se, in that, to
succeed on such a claim, the plaintiff must establish proximate cause and that Landlord had, or
should have had, notice of the violation of the statute. See Sikora v. Wenzel, 88 Ohio St.3d 493,
496-497, 2000-Ohio-406. The court then discussed the summary judgment evidence relative to
Landlord’s lack of notice of a defect in the step and inspections of the steps. The court
determined that this evidence established that Landlord took steps to inspect the relevant areas of
the premises and that Tenant failed to provide “factual support for its contention” that Landlord’s
inspection of the steps was “inadequate.” The court then determined that summary judgment
was appropriate on the first count of the complaint.
{¶11} Our review of the issue of whether summary judgment was properly granted on
the first count of the complaint is hampered because we cannot discern the trial court’s legal
basis for awarding summary judgment. This is because the trial court appears to suggest that it
was not applying law relative to a premises owner’s duty to its invitees, which was the legal
basis on which the parties had focused, but the court does not indicate why it was incumbent on
Landlord to inspect the premises. Accordingly, we cannot discern the legal standard against
which it judged the evidence of the adequacy of the inspections, e.g. whether the court was
applying the common law premises liability standard, if it was looking to some other affirmative 5
duty of a landlord to inspect the premises, or if it was looking to the inspections for purposes of
whether Landlord should have known of the defect for purposes of negligence per se.
{¶12} Therefore, because we cannot discern the trial court’s basis for the award of
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[Cite as Nero v. CWV Family Hous., L.L.C., 2016-Ohio-3314.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
RHODA NERO C.A. No. 27719
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE CWV FAMILY HOUSING, LLC COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2014-04-2164
DECISION AND JOURNAL ENTRY
Dated: June 8, 2016
MOORE, Judge.
{¶1} Plaintiff, Rhoda Nero, (“Tenant”) appeals from the judgment of the Summit
County Court of Common Pleas. This Court reverses and remands this matter for further
proceedings consistent with this decision.
I.
{¶2} Tenant leased a residential unit in a multifamily rental property which was owned
and operated by CWV Family Housing, LLC (“Landlord”). During her tenancy, Tenant was
walking down the stairs in the common area of the property when a step collapsed underneath
her, causing her to fall. In 2014, Tenant filed a complaint against Landlord alleging that she
suffered injuries due to Landlord’s failure to repair or maintain the stairs in the common area of
the property.
{¶3} Landlord answered the complaint and thereafter filed a motion for summary
judgment. Tenant opposed the motion. The trial court granted the motion. Tenant timely 2
appealed, and she now presents two assignments of error for our review. We have consolidated
the assignments of error in order to facilitate our discussion.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT FOR [LANDLORD] BY FINDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT REGARDING [LANDLORD’S] DUTY TO REPAIR AND MAINTAIN THE STAIRS.
ASSIGNMENT OF ERROR II
THE COURT ERRED BY FINDING THAT [TENANT] HAD ABANDONED COUNT II OF THE COMPLAINT.
{¶4} In her first and second assignments of error, Tenant argues that the trial court
erred in granting summary judgment in favor of Landlord on the first and second counts in her
complaint, respectively.
{¶5} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts
of the case in the light most favorable to the non-moving party and resolving any doubt in favor
of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).
{¶6} Pursuant to Civ.R. 56(C), summary judgment is proper only if:
(1) No genuine issue as to any material fact remains to be litigated; (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, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶7} The party moving for summary judgment bears the initial burden of informing the
trial court of the basis for the motion and pointing to parts of the record that show the absence of
a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). “If the 3
moving party fails to satisfy its initial burden, the motion for summary judgment must be
denied.” Id. at 293. Only where the moving party fulfills this initial burden, does the burden
shift to the nonmoving party to prove that a genuine issue of material fact exists. Id.
{¶8} Here, with respect to the first count of Tenant’s complaint, she maintained that
Landlord was negligent in that it failed to maintain the stairs and make necessary repairs to the
steps in the apartment complex. She also maintained that Landlord failed “to keep the apartment
stairs up to code.”
{¶9} In Landlord’s motion for summary judgment, it addressed the issues applicable to
this case by reference to common law premises liability, specifically the duty owed by premises
owners/occupiers to invitees, citing Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No.
08CA41, 2009-Ohio-4542, ¶ 26-27. In connection with this body of case law, and citing
Tenant’s deposition and Landlord’s executive manager’s affidavit in support, Landlord
maintained that it had no notice of any dangerous condition as to the steps, and that it performed
regular inspections on the premises. Tenant responded also citing cases relative to the duty owed
to invitees, see, e.g. Hidalgo v. Costco Wholesale Corp., 9th Dist. Lorain No. 12 CA010191,
2013-Ohio-847, and she maintained that there existed a triable issue on whether Landlord
conducted reasonable inspections.
{¶10} However, in its journal entry, the trial court did not discuss common law premises
liability aside from quoting Shump v. First Contintental-Robinwood Assocs., 71 Ohio St.3d 414,
418, 1994-Ohio-427, for the following proposition: “The legal duty that a landlord owes a tenant
is not determined by the common-law classifications of invitee, licensee, and trespasser under
the law of premises liability; instead, a landlord’s liability to a tenant is determined by a
landlord’s common-law immunity from liability and any exceptions to that immunity that a court 4
or a legislative body has created.” The trial court then went on to cite case law and statutes
pertaining to a landlord’s duties as codified in the Landlord-Tenant Act. See Mann v. Northgate
Investors, L.L.C., 138 Ohio St.3d 175, 2014-Ohio-455, ¶ 4, and R.C. 5321.04. The statutory
duties include keeping the premises in a fit and habitable condition, and keeping common areas
of the premises in a safe condition. See R.C. 5321.04(A)(2) and (A)(3). The trial court then
cited case law that pertains to a landlord’s liability predicated on negligence per se, in that, to
succeed on such a claim, the plaintiff must establish proximate cause and that Landlord had, or
should have had, notice of the violation of the statute. See Sikora v. Wenzel, 88 Ohio St.3d 493,
496-497, 2000-Ohio-406. The court then discussed the summary judgment evidence relative to
Landlord’s lack of notice of a defect in the step and inspections of the steps. The court
determined that this evidence established that Landlord took steps to inspect the relevant areas of
the premises and that Tenant failed to provide “factual support for its contention” that Landlord’s
inspection of the steps was “inadequate.” The court then determined that summary judgment
was appropriate on the first count of the complaint.
{¶11} Our review of the issue of whether summary judgment was properly granted on
the first count of the complaint is hampered because we cannot discern the trial court’s legal
basis for awarding summary judgment. This is because the trial court appears to suggest that it
was not applying law relative to a premises owner’s duty to its invitees, which was the legal
basis on which the parties had focused, but the court does not indicate why it was incumbent on
Landlord to inspect the premises. Accordingly, we cannot discern the legal standard against
which it judged the evidence of the adequacy of the inspections, e.g. whether the court was
applying the common law premises liability standard, if it was looking to some other affirmative 5
duty of a landlord to inspect the premises, or if it was looking to the inspections for purposes of
whether Landlord should have known of the defect for purposes of negligence per se.
{¶12} Therefore, because we cannot discern the trial court’s basis for the award of
summary judgment on the first count of the complaint, we sustain Tenant’s first assignment of
error on this basis and remand this matter to the trial court to clarify its reasoning. See Hunt v.
Alderman, 9th Dist. Summit No. 27416, 2015-Ohio-4667, ¶ 19.
{¶13} With respect to the second count of the complaint, Tenant maintained that
Landlord owed a duty to keep the common areas of the apartment complex safe under the terms
of the lease executed between the parties. In a footnote in the trial court’s journal entry, the court
concluded that it appeared that Tenant had abandoned this count.
{¶14} We see no basis in the record for the trial court’s determination that Tenant
abandoned the second count of the complaint. There was no mention in Landlord’s motion for
summary judgment regarding whether it was contractually obligated to repair or maintain the
steps in any particular fashion pursuant to the terms of the lease. Accordingly, the burden did
not shift to Tenant to establish that a triable issue existed as to this claim. See Dresher, 75 Ohio
St.3d at 293.
{¶15} Accordingly, Tenant’s second assignment of error is sustained.
III.
{¶16} Tenant’s assignments of error are sustained. The judgment of the trial court is
reversed, and this matter is remanded for further proceedings consistent with this decision.
Judgment reversed, and cause remanded. 6
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
CARLA MOORE FOR THE COURT
SCHAFER, J. CONCURS.
CARR, P. J. DISSENTING.
{¶17} I respectfully dissent. I would reverse on the basis that there are issues of material
fact.
APPEARANCES:
SEAN BUCHANAN, Attorney at Law, for Appellant.
JOSEPH K. OLDHAM, Attorney at Law, for Appellee.