[Cite as Warner v. Allen Metro. Hous. Auth., 2024-Ohio-5363.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
DIANNA L. WARNER, CASE NO. 1-24-33 PLAINTIFF-APPELLANT,
v.
ALLEN METROPOLITAN HOUSING AUTHORITY, OPINION
DEFENDANT-APPELLEE.
Appeal from Allen County Common Pleas Court Trial Court No. CV 2022 0164
Judgment Affirmed
Date of Decision: November 12, 2024
APPEARANCES:
J. Grant Neal for Appellant
Dalton J. Smith for Appellee Case No. 1-24-33
WALDICK, J. {¶1} Plaintiff-appellant, Dianna Warner (“Warner”), brings this appeal from
the March 12, 2024, judgment of the Allen County Common Pleas Court granting
summary judgment in favor of defendant-appellee Allen Metropolitan Housing
Authority (“AMHA”). On appeal, Warner argues that the trial court erred by
determining that there were no genuine issues of material fact with regard to her
claims for negligence and negligence per se. For the reasons that follow, we affirm
the judgment of the trial court.
Background
{¶2} Warner has lived in the Furl Williams Apartments in Allen County
since 2014. The apartments are owned by AMHA.
{¶3} At approximately 8:30 p.m. on November 17, 2021, after it was already
dark outside, Warner was taking her trash out to the dumpster. She walked out of
the front door of her building, down the sidewalk and crossed approximately fifty
feet to the dumpster that residents used to deposit their trash. There was a couch
sitting on the concrete pad beside the dumpster, which had been there for two or
three weeks. In addition, the lighting near the dumpster was inoperable, resulting in
what Warner called “pitch black” conditions.
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{¶4} On her way to the dumpster, Warner did not use any source of
illumination. She stepped sideways around the couch and put her trash down on the
ground to open the sliding door to the dumpster. When she went to retrieve her trash
and throw it into the open door of the dumpster, she stepped backward onto a
headboard that she had not seen and then fell backwards, resulting in serious
injuries.
{¶5} On May 2, 2022, Warner filed a complaint against AMHA alleging
negligence and negligence per se. More specifically, Warner claimed that AMHA
had a duty to fix and/or replace lighting in the area of the dumpster, and that it had
a duty to remove all trash. Warner also alleged that AMHA was in violation of the
Landlord Tenant Act codified in R.C. 5321 by failing to keep common areas in a
safe and sanitary condition. Warner claimed that AMHA’s negligence caused her
“severe and substantial physical injuries” resulting in damages in excess of $25,000.
(Doc. No. 1).
{¶6} On May 13, 2022, AMHA filed an answer admitting that it owned the
subject property, but denying that it was negligent. AMHA asserted numerous
affirmative defenses including, inter alia, that AMHA was entitled to sovereign
immunity, that Warner’s injuries were the result of her voluntary exposure to an
open and obvious hazard, that Warner did not exercise ordinary care when moving
in the dark precluding recovery under the “step-in-the-dark rule,” and that AMHA
had no notice of any alleged defective condition or hazard on the premises. -3- Case No. 1-24-33
{¶7} The case proceeded to discovery with depositions being taken of
Warner and John Brewster, the “Maintenance Manager” for AMHA. In his
deposition, Brewster testified that he was never notified of a lighting issue near the
dumpster prior to Warner’s fall. After Warner fell, she personally notified AMHA
and Brewster went out to inspect the area. He discovered that of the two light
fixtures near the dumpster, one was missing a light bulb and the other had a loose
light bulb that just needed tightened. Brewster testified that the last time he received
a complaint regarding lighting at the Furl Williams Apartments, it was for lighting
in the parking lot, an issue he remedied by removing a tree that was blocking the
lighting.
{¶8} Brewster also provided testimony regarding trash near the dumpster,
stating that he had received complaints in the past about trash accumulation at the
subject property, and when he did he would send other employees to go pick the
trash up. Generally, however, Brewster testified that the trash was handled by
“Rumpke.”
{¶9} In Warner’s deposition, she testified that she does not accumulate much
trash and usually only has a “grocery bag” to take out every 3 or 4 days. She testified
that she did not even always use the dumpster; rather, she testified that she used a
smaller garbage can that was on the premises.
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{¶10} Warner testified that most of the time she was taking her trash out
during the daytime. She testified she was not aware of whether the lights were
functioning by the dumpster. On the night in question, Warner testified that she was
taking care of a young boy and had to change his diaper. She wanted to take the
diaper out to the dumpster, so she went outside when it was dark.
{¶11} Warner testified that as she approached the dumpster on the night in
question she could see the couch near it “from the lighting that’s on the front of the
building on the second story.” (Warner Depo. Tr. at 15). She testified that the
lighting was good enough “to walk over there and pull the door open.” (Id. at 56).
However, she maintained that it was otherwise “pitch black,” and she could not see
the headboard she tripped over. The day after the incident, Warner took a picture of
the headboard on the ground near the dumpster, and it is readily visible.
{¶12} On July 31, 2023, AMHA filed a motion for summary judgment,
arguing that Warner’s claims were barred by the open-and-obvious doctrine and
“the-step-in-the-dark rule.” AMHA also argued that Warner had failed to show
AMHA breached a duty, and that AMHA was entitled to sovereign immunity. (Doc.
No. 29).
{¶13} On September 11, 2023, Warner filed a response, arguing that the step-
in-the-dark rule and open and obvious doctrine did not apply in this instance.
Further, Warner argued that AMHA was not immune. Attached to the response were
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documents showing emails and messages Warner had sent to AMHA after the
incident where she notified AMHA of poor lighting and trash accumulation.
{¶14} On March 12, 2024, the trial court filed a final entry granting AMHA’s
motion for summary judgment and dismissing Warner’s complaint. Although the
trial court determined that there was a genuine issue of material fact as to AMHA’s
immunity claim, the trial court ultimately determined that AMHA was entitled to
summary judgment on Warner’s claims for negligence and negligence per se.1 As a
result, Warner’s complaint was dismissed. Warner now appeals the trial court’s
judgment, asserting the following assignments of error for our review.
First Assignment of Error
The trial court erred by granting Appellee’s motion for summary judgment and dismissing Appellant’s negligence claim because whether Appellant’s actions constituted ordinary care is a question of fact, not a question of law.
Second Assignment of Error
The trial court erred by granting Appellee’s motion for summary judgment on Appellant’s negligence per se claim because the trial court only considered whether Appellee had actual notice of defective conditions around its dumpster and did not address whether Appellee had constructive notice of such conditions.
1 AMHA did not file a cross-appeal, thus we have no cause to review the trial court’s findings regarding sovereign immunity.
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Standard of Review {¶15} Both of Warner’s assignments of error challenge the trial court’s
determination to grant summary judgment in favor of AMHA.. The Supreme Court
of Ohio has held that summary judgment may be granted when “‘(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.’” M.H. v. Cuyahoga Falls, 2012-Ohio-5336, ¶
12, quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). We review
a trial court’s decision to grant a summary judgment motion de novo. Harris v.
Hilderbrand, 2023-Ohio-3005, ¶ 23
{¶16} In her first assignment of error, Warner argues that the trial court erred
by granting AMHA summary judgment on her common law negligence claim.
Specifically, Warner argues that the trial court erred by finding that her claim was
barred by the “step-in-the-dark” rule.
Analysis
{¶17} In order to establish negligence, a party “must show the existence of a
duty, the breach of the duty, and injury resulting proximately therefrom.” Strother
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v. Hutchinson, 67 Ohio St.2d 282, 285 (1981). “However, under the common law
theory [of negligence], the open and obvious doctrine would apply and defeat a
negligence claim.” Rader v. RLJ Mgt. Co., 2024-Ohio-391, ¶ 16 (3d Dist.).
{¶18} “In general, ‘[o]pen-and-obvious dangers are those not hidden,
concealed from view, or undiscoverable upon ordinary inspection.’ ” Shipman v.
Papa John's, 2014-Ohio-5092, ¶ 22 (3d Dist.), quoting Thompson v. Ohio State
Univ. Physicians, Inc., 2011-Ohio-2270, ¶ 12 (10th Dist.). “However, an individual
‘does not need to observe the dangerous condition for it to be an “open-and-
obvious” condition under the law; rather, the determinative issue is whether the
condition is observable.’ ” Id., quoting Thompson at ¶ 12. “Thus, ‘[e]ven in cases
where the plaintiff did not actually notice the condition until after he or she fell,
[courts have] found no duty where the plaintiff could have seen the condition if he
or she had looked.’ ” Id., quoting Thompson at ¶ 12. The rationale underlying the
doctrine is that the open and obvious nature of the hazard itself serves as a warning.
Williams v. Lowe’s of Bellefontaine, 2007-Ohio-2045, ¶ 9. In most situations,
whether a danger is open and obvious presents a question of law. Coldren v.
Northview Shopping Plaza, LLC, 2023-Ohio-1703, ¶ 20 (3d Dist.).
{¶19} Nevertheless, even if a danger is open and obvious, “[t]he presence of
attendant circumstances . . . may create a genuine issue of fact as to whether a danger
is open and obvious.” Lyle v. Pk Mgt, LLC, 2010-Ohio-2161, ¶ 28 (3d.Dist). An
“attendant circumstance” is a factor that contributes to a fall that is beyond the -8- Case No. 1-24-33
control of the injured party. Id. The phrase refers to all facts relating to the event,
including time, place, surroundings or background and the conditions normally
existing that would unreasonably increase the normal risk of a harmful result of the
event. Id. Importantly, to serve as an exception to the open and obvious doctrine, an
attendant circumstance must be so abnormal that it unreasonably increased the
normal risk of a harmful result or reduced the degree of care of an ordinary person.
Coldren v. Northview Shopping Plaza, LLC, 2014-Ohio-5092, ¶ 30 (3d Dist.).
{¶20} In this case, the trial court determined that the headboard Warner fell
over was “lying in the open near the dumpster and could readily have been viewed
by anyone during the daytime hours.” (Doc. No. 39). The trial court thus determined
that the headboard was an open and obvious danger; however, the trial court did not
end its analysis there. The trial court proceeded to determine whether the area
around the dumpster being “pitch black” constituted an attendant circumstance such
that a genuine issue of material fact existed as to whether the headboard was an open
and obvious danger.
{¶21} The trial court analyzed the legal authority that addressed whether
darkness was an attendant circumstance. “Generally, darkness itself is an open-and-
obvious condition, not an attendant circumstance, which should increase, not
decrease, the care that a reasonable person takes for their own safety.” Lambert v.
Up Cincinnati Race, LLC, 2022-Ohio-4699, ¶ 24 (1st Dist.). “If one does
unreasonably disregard the darkness, she may be precluded from recovering -9- Case No. 1-24-33
damages for resulting injuries.” Tomasko v. Sohnly, 2016-Ohio-2698, ¶ 29 (5th
Dist.). This theory is encapsulated in the “step-in-the-dark rule,” which states: “one
who, from a lighted area, intentionally steps into total darkness, without knowledge,
information, or investigation as to what the darkness might conceal, is guilty of
contributory negligence as a matter of law.” Posin v. A.B.C. Motor Court Hotel,
Inc., 45 Ohio St.2d 271, 276 (1976).
{¶22} When analyzing the evidence presented related to Warner “stepping
in the dark,” the trial court determined that:
In this case no one suggested to Warner that she journey outside to the dumpster in the darkness. Warner knew there was little to no lighting by the dumpster and that often times various items, including pieces of furniture, were left by the dumpster and not taken away promptly. Warner chose to squeeze past the couch into the pitch black without a flashlight or any sort of other source of illumination. In so doing, she entered a dark condition at her own peril and is precluded from recovering damages under the common law theory of negligence.
(Id.)
{¶23} Warner argues that the trial court erred by finding that the darkness in
this instance did not constitute an attendant circumstance such that a genuine issue
of material fact existed as to whether the headboard was an open and obvious
danger. She argues that the trial court never considered whether she was exercising
ordinary care when she “stepped in the dark.” We disagree.
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{¶24} The trial court’s thoroughly researched and well-reasoned judgment
entry describes the undisputed facts that were key to its decision. Warner knew it
was dark outside and that the area around the dumpster was “pitch black.” She also
knew that there was, at least, a couch by the dumpster that had been there for some
time. Despite knowing that it was “pitch black” outside, and despite knowing that
there were objects around the dumpster, Warner walked to the dumpster without
any type of illumination.
{¶25} By her own admission, Warner squeezed past the couch, set her trash
down, opened the dumpster, then stepped onto a darkened area that happened to
contain a headboard. Photographs show that the headboard would have been readily
visible in any kind of illumination had Warner been exercising ordinary care. These
were all factors noted by the trial court. Thus, trial court’s analysis does address
whether Warner was exercising ordinary care regarding her encounter with the
darkness, therefore her argument is inaccurate.
{¶26} Nevertheless, Warner maintains that the holding from cases such as
Hissong v. Miller, 2010-Ohio-961, (2d Dist.), preclude summary judgment in this
instance. In Hissong, the Second District Court of Appeals determined that a
plaintiff’s potential negligence by “stepping in the dark” could not be answered as
a matter of law, but the facts of that case are entirely distinguishable from the case
sub judice.
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{¶27} In Hissong, the plaintiff was at a business and asked to use the
restroom. An employee directed the plaintiff to the back of the building, “through
the curtains to the left of the trellis in the back.” Id. at ¶ 2. The plaintiff had never
been in the establishment before. She “saw the trellis near the back on the left, and
just before the trellis began, she saw the face of a closed door. Believing this was
the restroom ‘to the left of the trellis,’” the plaintiff walked over to it. Id. The
plaintiff opened the door “about a foot and a half.” (Id.)
The other side was dark, but enough light from the backroom shone inside for Hissong to see a light switch on the right wall. As she reached for the switch, Hissong at the same time stepped through the doorway—never looking down. Had she looked down, she would have seen the steps that descended immediately on the other side of the door's threshold. As it was, expecting her foot to find the solid restroom floor and not finding it, Hissong bounced down the steps, severely injuring her shoulder on the way.
{¶28} The facts of Hissong are readily distinguishable from the case sub
judice. The plaintiff in Hissong was following someone else’s directions to a
bathroom in a building she did not know, and there was no mention to her of any
stairs. Furthermore, Hissong is not binding on us.
{¶29} Regardless of the fact that Hissong is only persuasive authority, the
trial court effectively distinguished Hissong in its analysis by noting that in this case
Warner was stepping outside into darkness of her own free will to an area she was
generally familiar with and that she already knew was cluttered. -12- Case No. 1-24-33
{¶30} Under these specific facts and circumstances, we agree with the trial
court that there is no genuine issue of material fact with regard to Warner’s common
law negligence claim. The danger was open and obvious and the evidence did not
show that darkness was an attendant circumstance here. Therefore, her first
assignment of error is overruled.
Second Assignment of Error {¶31} In her second assignment of error, Warner argues that even if her
common law negligence claim failed, her claim of negligence per se should have
survived summary judgment. Unlike her claim for common law negligence,
Warner’s negligence per se claim is based on her allegation that AMHA was in
violation of the Landlord-Tenant Act, codified in R.C. 5321.01, et seq.
{¶32} Revised Code 5321.12 provides that any party may recover damages
for the breach of contract or breach of any duty that is imposed by law. Generally,
a violation of a landlord’s statutory duties under R.C. 5321.04 constitutes
negligence per se, meaning that proof of a statutory violation relieves a plaintiff’s
burden of proving the existence of a duty and a breach of that duty. Morgan v.
Mamone, 2006-Ohio-6944, ¶ 19 (8th Dist).
{¶33} Here, the trial court analyzed the evidence and determined that AMHA
had a duty to keep the dumpster area in a safe and sanitary condition pursuant to
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R.C. 5321.04(A)(3). The trial court then determined that whether AMHA violated
R.C. 5321.04(A)(3) by failing to provide adequate lighting near the dumpster and/or
leaving furniture near the dumpster was a question of fact to be resolved by a jury.2
{¶34} However, the trial court noted that even assuming that AMHA
breached its duty under R.C. 5321.04(A)(3) by not keeping the dumpster area in a
safe condition, this only satisfied the first two elements of negligence recovery.
Warner still had to prove that the conditions were the proximate cause of her injury.
{¶35} The Supreme Court of Ohio has held that a finding of negligence per
se does not necessarily result in liability:
proximate cause for the injuries sustained [still must be] must be established. [internal quotation omitted] Further, a plaintiff tenant would also have to show that “the landlord received notice of the defective condition of the rental premises, that the landlord knew of the defect, or that the tenant had made reasonable, but unsuccessful, attempts to notify the landlord.” [Internal citation omitted].
Mann v. Northgate Investors, L.L.C., 2014-Ohio-455, ¶ 12.
{¶36} Here, the trial court analyzed the evidence and determined that there
was no evidence that AMHA received actual notice that the lights in the area of the
dumpster were not in working order. The record supports the trial court’s finding on
2 Again, although the trial court’s finding on this issue was adverse to AMHA, there was no cross-appeal filed by AMHA, so we will not address whether the trial court was correct in its analysis of R.C. 5321.04(A)(3).
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this issue as there is no evidence whatsoever that AMHA received actual notice
about the lighting until after Warner’s injury.
{¶37} Warner argues that although AMHA did not have actual notice of the
lighting and the headboard, AMHA should have had constructive notice of the
issues because they were ongoing. However, as the trial court stated, there is
absolutely no evidence of how long the headboard Warner tripped over was present
near the dumpster, and there is no evidence as to how long the lights near the
dumpster were not in working order. Ray v. Wal-Mart Storex, Inc., 2013-Ohio-2684,
¶ 47 (4th Dist.) (holding that to show a premises owner possessed constructive
knowledge of a hazard, evidence of how long the condition existed is mandatory).
There is simply no evidence that AMHA knew or should have known about the
specific conditions. For example, Warner herself did not know how long the lights
had been out, and Warner produced no affidavits from other tenants regarding the
lights.
{¶38} Warner seems to invite speculation that AMHA should have known of
the lighting issues, but this is not sufficient to defeat summary judgment. Durnell’s
RV Sales Inc. v. Beckler, 2023-Ohio-3565, ¶ 92 (3d.Dist.) (holding that resting on
mere allegations against a motion for summary judgment is insufficient). As the
only evidence in the record establishes that AMHA did not know of the lighting
conditions, and there is not any evidence that AMHA should be imputed
constructive knowledge, we find that the trial court correctly awarded summary -15- Case No. 1-24-33
judgment in favor of AMHA. Therefore, Warner’s second assignment of error is
overruled.
Conclusion
{¶39} Having found no error prejudicial to Warner in the particulars assigned
and argued, her assignments of error are overruled and the judgment of the Allen
County Common Pleas Court is affirmed.
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlm
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