Person-Thomas v. Quilliams-Noble Apartments, L.L.C.

2015 Ohio 4277

• Court: Ohio Court of Appeals
• Decided: October 15, 2015
• Docket: 102625
• Status: Published

Opinion

[Cite as Person-Thomas v. Quilliams-Noble Apartments, L.L.C., 2015-Ohio-4277.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102625

PASHA PERSON-THOMAS PLAINTIFF-APPELLANT

vs.

QUILLIAMS-NOBLE APARTMENTS, L.L.C., ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-823857

BEFORE: Keough, P.J., E.A. Gallagher, J., and Kilbane, J.

RELEASED AND JOURNALIZED: October 15, 2015 ATTORNEY FOR APPELLANT

Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113

Alan S. Levine Levine & Levine 55 Public Square, Suite 1200 Cleveland, Ohio 44113

ATTORNEY FOR APPELLEES

Victoria D. Barto Law Office of Stephen J. Proe The Genesis Building 6000 Lomardo Center, Suite 42 Seven Hills, Ohio 44131 KATHLEEN ANN KEOUGH, P.J.:

{¶1} Plaintiff-appellant, Pasha Person-Thomas (“appellant”), appeals from the

trial court’s judgment granting summary judgment to defendants-appellees,

Quilliams-Noble Apartments L.L.C. and KRI Properties, Inc. (collectively “appellees”).

Because we conclude that appellant failed to present evidence sufficient to raise a

question of fact as to appellees’ prior knowledge of an alleged defective condition, we

affirm.

{¶2} The record reveals the following. On November 21, 2013, appellant

arrived at the Quilliams-Noble Apartments, unannounced and uninvited, intending to

make a surprise visit to her then-boyfriend, Ron Jackson, a tenant at the apartment

complex, located in Cleveland Heights. Appellant walked up the back entry stairs,

approached a locked, exterior door, and knocked three times on one of the glass panes in

the door. On the third knock, the glass shattered, injuring her wrist and arm.

{¶3} Appellant filed suit against appellees, alleging that appellees were negligent

for allowing the door to contain glass of a quality that was in violation of the Ohio and

city of Cleveland Heights’ building codes. Appellees subsequently filed a motion for

summary judgment, which the trial court granted. This appeal followed.

{¶4} In her single assignment of error, appellant contends that the trial court

erred in granting summary judgment to appellees on her claims for negligence and

violation of the Landlord-Tenant Act.1

Appellees contend that appellant’s complaint did not properly assert a claim for violation of 1 A. Standard of Review

{¶5} An appellate court reviews a trial court’s decision on a motion for summary

judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). Summary judgment is appropriate when: (1) there is no genuine issue of material

fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after

construing the evidence most favorably for the party against whom the motion is made,

reasonable minds can reach only a conclusion that is adverse to the nonmoving party.

Civ.R. 56(C); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696

N.E.2d 201 (1998).

{¶6} The party moving for summary judgment bears the initial responsibility of

informing the trial court of the basis for the motion, and identifying those portions of the

record that demonstrate the absence of a genuine issue of material fact on the essential

elements of the nonmoving party’s claims. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,

662 N.E.2d 264 (1996). After the moving party has satisfied this initial burden, the

nonmoving party has a reciprocal duty to set forth specific facts by the means listed in

Civ.R. 56(C) showing that there is a genuine issue of material fact for trial. Id.

B. Common-Law Negligence

{¶7} A common-law negligence claim requires a showing of (1) a duty owed, (2)

a breach of that duty, and (3) an injury proximately caused by the breach. Texler v. D.O.

the Landlord-Tenant Act, and thus the claim should not be considered. We need not resolve this issue because the claim fails in any event. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998).

“The existence of a duty is fundamental to establishing actionable negligence, without

which there is no legal liability.” Adelman v. Timman, 117 Ohio App.3d 544, 549, 690

N.E.2d 1332 (8th Dist.1997). Determination of whether a duty exists is a question of law

for the court to decide and is therefore a suitable basis for summary judgment.

Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).

{¶8} The parties argue about the duty owed by appellees to appellant, claiming that

this determination should be based upon the common-law classifications of invitee,

licensee, and trespasser under the law of premises liability. Appellant contends that she

was an invitee2 because — although her visit to Jackson was to be a surprise — Jackson

was her boyfriend, at one time she had a key to his apartment, and apartment owners

receive an economic benefit by allowing even uninvited guests onto the property to visit

tenants. Appellant contends that as an invitee, appellees owed her an ordinary duty of

care to ensure that the premises were reasonably safe, including a duty to affirmatively

inspect the premises to discover possible unknown dangerous conditions.

{¶9} Appellees contend that appellant was a licensee3 because Jackson had not

invited her to visit. They claim that because appellant was a licensee, they owed her no

duty except to refrain from wantonly or willfully causing injury. Id.

A person who comes on the premises of another by invitation, express or implied, for some 2

purpose that is beneficial to the owner. Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986).

A person who enters the premises of another by permission or acquiescence, for his own 3 {¶10} Neither party’s position is correct. The decision announced by the Ohio

Supreme Court in Shump v. First Continental-Robinwood Assoc., 71 Ohio St.3d 414, 644

N.E.2d 291 (1994), approved, Mann v. Northgate Investors L.L.C., 138 Ohio St.3d 175,

2014-Ohio-455, 5 N.E.2d 594, is controlling on the issue of the degree of care that a

landlord owes to a guest of a tenant. In resolving this issue, the Shump court rejected the

theory that the common-law distinctions between invitee, licensee, and trespasser are

dispositive in these cases. The court held that those classifications determine the legal

duty that a tenant owes to a guest on the property, but do not affect the legal duty that a

landlord owes a tenant or others lawfully upon the leased premises. Id. at 417. “A

landlord owes the same duties to persons lawfully upon the leased premises as the

landlord owes to the tenant.” Id. at the syllabus.

{¶11} Although at early common law landlords owed no duty to tenants, courts

and legislatures have carved out various exceptions that give rise to landlord liability. Id.

at 418. These exceptions include concealment or failure to disclose known, latent

defects; defective premises under the landlord’s control; failure to perform a covenant to

repair; breach of a statutory duty; and negligent performance of a contractual or statutory

duty to repair. Id.

{¶12} Nevertheless, a landlord is not an insurer of the safety of others. Sikora v.

Wenzel, 88 Ohio St.3d 493, 499, 727 N.E.2d 1277 (2000) (Resnick, J., concurring). “In

cases ‘where negligence revolves around the question of the existence of a hazard or

pleasure or benefit and not by invitation. Id. defect,’ notice, either actual or constructive, 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, quoting Heckert v. Patrick, 15 Ohio St.3d 402, 405, 473 N.E.2d 1204 (1984). See

also Odom v. Davis, 4th Dist. Athens No. 02CA43, 2003-Ohio-3316, ¶ 17.

C. The Landlord-Tenant Act

{¶13} Under R.C. 5321.04(A), a landlord who is a party to a rental agreement shall

(1) comply with the requirements of all applicable building, housing, health, and safety

codes; (2) make all repairs and do whatever is reasonably necessary to put and keep the

premises in a fit and habitable condition; and (3) keep all common areas of the premises

in a safe and sanitary condition.

{¶14} A landlord’s violation of the duties imposed by this statute constitutes

negligence per se. Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d

1195, ¶ 23, citing Sikora. However, a landlord will be excused from liability under the

Landlord-Tenant Act, “if he neither knew nor should have known of the factual

circumstances that caused the violation.” Id. at the syllabus.

D. Notice

{¶15} Accordingly, as discussed above, to find appellees liable under either a

common law negligence claim or the Landlord-Tenant Act, appellant must demonstrate

that appellees had notice that the quality of the glass in the exterior door was hazardous.

{¶16} In their motion for summary judgment, appellees pointed to evidence that

established that they purchased and began managing the apartment complex on July 8, 2013, only four months prior to the incident involving appellant. The evidence further

established that in those four months, appellees never had to repair or replace any window

in an exterior door on the property. Further, appellees never received a request to repair

or replace any window at the premises, and prior to appellant’s injury, they had no

knowledge of any other incident at the premises involving broken glass.

{¶17} The evidence also established that during the purchasing process, the

property was inspected by the city of Cleveland Heights Housing Inspection Department.

The city issued appellees a 34-page certificate of inspection that detailed numerous

building code violations relating to the interior and exterior of the property. None of the

violations identified any issues with the glass in any of the exterior doors, however, and

the city inspector did not note or require that any glass in any exterior door be replaced

for being hazardous or out of code. In light of this evidence, appellees argued that they

had neither actual nor constructive notice that the glass in the exterior door presented any

hazard.

{¶18} In her brief in opposition to appellees’ motion for summary judgment,

appellant argued that appellees were negligent per se for violating the Landlord-Tenant

Act. She pointed to her expert’s report, attached to her brief, in which her expert

concluded, upon inspecting the property after the accident, that the glass that shattered

was not glass able to withstand human contact, as required by the Ohio Building Code,

but merely ordinary plate glass. Appellant argued that the hazard was therefore open and

obvious and thus, liability should be imposed for appellees’ violation. {¶19} With respect to her common law negligence claim, appellant argued that

appellees had actual knowledge of the alleged unsuitable quality of glass because they

were responsible for its hazardous condition. She argued further that there was a

genuine issue of material fact regarding whether appellees had constructive notice of the

hazardous condition of the glass because they had the burden of demonstrating they had a

proper hazard-inspection program, and had not produced any evidence of an inspection

program.

{¶20} Our de novo review of the record demonstrates that appellant failed to meet

her burden of demonstrating that appellees had either actual or constructive knowledge

prior to appellant’s injury that the glass in the exterior door was hazardous. First,

appellant produced no evidence whatsoever that appellees had actual knowledge of the

alleged defect. She produced no evidence of any prior complaints about the glass to

appellees, nor any evidence that any windows had previously shattered or been replaced

by appellees. Her assertion that appellees had actual knowledge of the allegedly

unsuitable quality of the glass because they were responsible for its hazardous condition

is without merit. The evidence is undisputed that appellees purchased the apartment

complex after the premises had been constructed; appellant produced no evidence that

appellees had any involvement with the construction of the premises.

{¶21} Likewise, appellant produced no evidence that appellees had constructive

knowledge of the allegedly unsuitable quality of glass in the window. In order to show

that a landlord had constructive notice, an injured plaintiff must show that the defect existed for such a length of time that the landlord, by exercising reasonable care, should

have discovered it. Waugh v. Lynch, 8th Dist. Cuyahoga No. 100432, 2014-Ohio- 1087

at ¶ 10, citing Young v. Mager, 41 Ohio App.2d 60, 63-64, 322 N.E.2d 130 (9th

Dist.1974).

{¶22} As evidence that appellees should have discovered that the glass was unsafe,

appellant points to her expert’s report, wherein the expert opined that

the glazed door panels of this door have remained unchanged and glazed with merely single panes of ordinary breakable plate or float glass for a period of successive years. Throughout that entire time, the property owner/manager has frequented and maintained the property. The property owner/manager therefore knew or should have known that those panes violated the OBC, and presented a safety hazard and risk to both tenants and visitors.

{¶23} In light of this report, appellant contends that the hazardous condition “did

not appear overnight,” and would have been identified if appellees had put in place a

reasonable inspection program.

{¶24} We do not find the expert’s opinion sufficient to create an issue of material

fact regarding whether appellees had constructive notice of the allegedly unsuitable

quality of the glass. First, the expert opined that appellees knew or should have known

the window panes presented a safety hazard because they had “frequented and maintained

the property” “for a period of successive years.” This assertion was obviously incorrect

because appellees purchased and began managing the property only four months before

appellant was injured. {¶25} Furthermore, the expert report did not identify any defective condition that

appellees would have discovered upon inspection. The report did not state that the glass

in the exterior door (or any other door on the property) was chipped, broken, cracked, or

hanging loosely in the frame; it stated only that the unbroken glass was unsafe because it

might break if enough force were exerted upon it. Thus, appellant’s expert did not point

to any observable condition of the glass that would have alerted appellees upon inspection

that the glass was a hazard. Indeed, if there were an unsafe condition with the glass that

could have been discovered upon a reasonable inspection, the inspection by the city of

Cleveland Heights’ building inspector — who is trained to identify unsafe conditions and

building code violations — would certainly have identified such unsafe condition. But

despite identifying numerous other such conditions at the apartment complex, the point of

sale inspection did not identify any hazards relating to the glass in the exterior doors.

{¶26} In fact, appellant testified that there was no hazard to find. She said that

the glass was not chipped or cracked immediately before she knocked on the window, and

that upon her other visits to Jackson, she had never seen broken glass in this door or any

other exterior door in the complex. In addition, she had never reported any concerns

about the glass to appellees.

{¶27} Appellant argues, however, that appellees’ failure to demonstrate that they

had a reasonable inspection program creates a genuine issue of material fact regarding

whether they had constructive notice the glass was hazardous. We disagree. The

Landlord-Tenant Act does not impose an affirmative duty on a landlord to inspect the premises to find prospective dangers or code violations. Mandelbaum v. Smith, 8th Dist.

Cuyahoga No. 101888, 2015-Ohio-1035, ¶ 17. Thus, appellees’ alleged failure to inspect

(which appellees dispute) is not relevant to appellant’s Landlord-Tenant claim.

{¶28} With respect to appellant’s common law negligence claim, under Civ.R. 56,

once a moving party shows there is no genuine issue of material fact, the burden shifts to

the opposing party to set forth specific facts by the means listed in Civ.R. 56(C) showing

there is a genuine issue of material fact for trial. Wing v. Anchor Media, Ltd., 59 Ohio

St.3d 108, 510 N.E.2d 1095 (1991), paragraph three of the syllabus. Appellees presented

evidence that they had no prior notice of any defect. Appellant attempts to overcome

appellees’ evidence by arguing that appellees would have discovered the alleged defect if

they had conducted reasonable inspections, and their failure to produce evidence of such

inspections indicates they should be charged with constructive notice of the defect. But

appellant cannot prove that appellees had constructive notice by impermissibly shifting

the burden of proof to appellees. She has the burden of demonstrating through

acceptable Civ.R. 56(C) evidence that appellees should have discovered the alleged

defect but failed to do so because they did not make reasonable inspections. Appellant

produced no such evidence, however, and thus has not demonstrated a genuine issue of

material fact regarding whether appellees had constructive notice of the alleged hazard.

{¶29} Moreover, appellant produced no evidence demonstrating that appellees

would have discovered the alleged hazard even if they had conducted regular inspections. It can hardly be argued that appellees would have identified as unsafe a condition the

building inspector did not even mention as a hazard.

{¶30} In short, appellant produced no evidence that prior to appellant’s injury,

appellees had notice, either actual or constructive, that the glass in the exterior door posed

a hazard. “[I]t is basic hornbook law that in the absence of actual or constructive

knowledge, a landlord is not liable.” Sikora v. Wenzel, 88 Ohio St.3d at 499,

2000-Ohio-406, 727 N.E.2d 1277. Accordingly, the trial court did not err in granting

summary judgment to appellees, and appellant’s assignment of error is overruled.

{¶31} Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and MARY EILEEN KILBANE, J., CONCUR