[Cite as Wilmoth v. Akron Metro. Hous. Auth., 2016-Ohio-3441.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
BARBARA WILMOTH C.A. No. 27746
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE AKRON METROPOLITAN HOUSING COURT OF COMMON PLEAS AUTHORITY COUNTY OF SUMMIT, OHIO CASE No. CV 2014-03-1529 Appellee
DECISION AND JOURNAL ENTRY
Dated: June 15, 2016
SCHAFER, Judge.
{¶1} Plaintiff-Appellant, John Collins, acting as Administrator of the Estate of Barbara
Wilmoth (“Appellant”), appeals the trial court’s entry of summary judgment in favor of
Defendant-Appellee, Akron Metropolitan Housing Authority (“AMHA”), on Appellant’s
negligence per se and common law negligence claims. We affirm the trial court’s judgment as it
relates to Appellant’s negligence per se claim and to its refusal to consider evidence of AMHA’s
subsequent remedial measures. However, we reverse the trial court’s judgment as it relates to
Appellant’s common law negligence claim and remand the matter for further proceedings on this
claim.
I.
{¶2} This is a trip-and-fall case. Ms. Wilmoth was a tenant at the Allen Dixon
Apartment Complex, which AMHA operates. The complex provides housing to individuals who
are senior citizens, disabled, or both. At the time of the incident giving rise to this matter, Ms. 2
Wilmoth qualified for residency as a senior citizen since she was 64-years-old. She suffered
from a variety of serious medical ailments, including narcolepsy, migraines, emphysema, high
blood pressure, major depression, as well as previous instances of a heart attack and a stroke.
{¶3} On her first day as a tenant, Ms. Wilmoth was instructed to deposit boxes in a
location near the back of the complex that was reserved for trash disposal. During her first trip
to the disposal area, Ms. Wilmoth carried two full-sized boxes through a set of double doors
before turning left. She walked to a pile of boxes and threw her boxes on top of the pile. After
throwing the boxes, Ms. Wilmoth immediately did a U-turn to head toward her vehicle in the
adjacent parking lot. While heading toward the vehicle, Ms. Wilmoth fell off the curb. She did
not look down after depositing the boxes and stepping toward the curb, which she did not know
was there. Ms. Wilmoth landed on her forehead and suffered multiple fractures to her patella as
a result of the fall.
{¶4} The curb that Ms. Wilmoth fell over is formed by the edge of a “walkway leading
into the parking lot.” The walkway slopes from a height of about one inch at a point located near
the double doors from which Ms. Wilmoth exited, to more than six inches in height near the
trash disposal area. AMHA painted the curb created by the slope white, both horizontally (on
top of the walkway) and vertically (on the side of walkway perpendicular to the adjacent parking
lot surface). After Ms. Wilmoth’s fall, AMHA repainted the curb yellow.
{¶5} When Ms. Wilmoth fell, numerous boxes were on the ground at the trash disposal
site. There was some construction in the area, but there was no construction activity that day.
As a result, no workers were present, but there was “junk” and sawhorses in the area. There was
no snow or ice and the area was not wet. 3
{¶6} Ms. Wilmoth filed an action against AMHA, asserting a negligence per se claim
under the Landlord-Tenant Act and a common law negligence claim. The trial court granted
summary judgment in AMHA’s favor. In doing so, the court, pursuant to Evid.R. 407, declined
to consider evidence that AMHA repainted the curb yellow after the incident. While the trial
court engaged in a lengthy analysis of the negligence per se claim, there was no discussion of the
common law negligence claim and the possible application of the open and obvious doctrine.
{¶7} Ms. Wilmoth filed this timely appeal. After filing the notice of appeal, Ms.
Wilmoth passed away and this Court substituted Appellant as the proper party to this action. The
appeal presents two assignments of error for our review. Because the second assignment of error
relates to the quantum of evidence properly before the trial court, we elect to address that
assignment of error first.
II.
Assignment of Error II
The trial court erred in excluding evidence of subsequent remedial measures.
{¶8} In the second assignment of error, Appellant argues that the trial court abused its
discretion by excluding evidence that AMHA repainted the curb yellow after Ms. Wilmoth’s fall.
We disagree.
{¶9} The second assignment of error relates to Appellant’s common law negligence
claim and AMHA’s defense that Appellant could not recover under that theory because the curb
was an open and obvious hazard. To establish liability for negligence, the plaintiff must show
that the defendant owed her a duty, breached that duty, and that the breach of the duty
proximately caused damages. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-
Ohio-4210, ¶ 22. The open and obvious doctrine prevents a plaintiff from establishing the duty 4
prong for a common law negligence claim. Armstrong v. Best Buy, Co., Inc., 99 Ohio St.3d 79,
2003-Ohio-2573, ¶ 5. The existence of a legal duty in negligence actions is a question of law for
the trial court to decide. Mussivand v. David, 45 Ohio St.3d 314, 318 (1989); see also
Williamson v. Geeting, 12th Dist. Preble No. CA2011-09-011, 2012-Ohio-2849, ¶ 19 (“Whether
a hazard is an open and obvious condition is a matter of law to be determined by the court, and
therefore, [is] a suitable basis for summary judgment.”).
{¶10} The second assignment of error also implicates the provisions of Evid.R. 407,
which states as follows:
When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
The reasoning for Evid.R. 407 is two-fold. McFarland v. Bruno Mach. Corp., 68 Ohio St.3d
305, 307-308 (1994). First, evidence of subsequent remedial measures has minimal or non-
existent probative value in establishing negligence because remedial action does not constitute
admission of negligence. Id. Rather, the injury may have been caused simply by accident or
through the plaintiff’s contributory negligence. Id. at 308. “The second explanation for
excluding evidence under the rule is based on the social policy of encouraging repairs or
corrections. * * * [A] defendant would be less likely to take subsequent remedial measures if the
repairs or corrections should be used as evidence against the defendant at trial.” Id.
{¶11} Evid.R. 407 is not absolute in its prohibition of evidence regarding subsequent
remedial measures. Instead, the rule expressly does not apply to exclude evidence of such
measures (1) for impeachment, or (2) to prove ownership, control, or the feasibility of 5
precautionary measures. The ownership, control, or feasibility of precautionary measures it not
contested in this matter. Rather, Appellant argues that the repainting of the curb may be used to
impeach AMHA’s defense that the curb was an open and obvious hazard. As a result, we
constrain our review to the potential impeachment of AMHA’s open and obvious defense.
{¶12} We review a trial court’s admission or exclusion of evidence under Evid.R. 407
for an abuse of discretion. State v. Kellwood, 9th Dist. Medina No. 3069-M, 2000 WL 1875411,
*3 (Dec. 27, 2000). An abuse of discretion implies the court’s decision was arbitrary,
unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
When applying this standard, a reviewing court is precluded from simply substituting its own
judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶13} Proof of the open and obvious defense is inextricably linked with proof of a
negligence claim. As a result, the discoverability of the paint on the curb is at the core of
AMHA’s open and obvious defense that it asserted to avoid liability. Thus, Appellant’s attempt
to introduce the evidence of repainting after Ms. Wilmoth’s fall defeats the policy behind
Evid.R. 407 and the trial court did not abuse its discretion in disallowing the evidence. See Hill
v. W. Res. Catering, Ltd., 8th Dist. Cuyahoga No. 93930, 2010-Ohio-2896, ¶ 18 (affirming the
trial court’s exclusion of evidence that the defendant had “enhanced lighting and yellow
marking” after incident since the evidence went to the defendant’s negligence). Compare
Worrell v. Norfolk & W. Ry. Co., 94 Ohio App.3d 133, 137 (6th Dist.1994) (reversing the trial
court’s exclusion of evidence that the defendant’s employee removed box that had fallen on the
plaintiff’s head because it was used to impeach the employee’s testimony that he believed the
box was safe where it was originally located). 6
{¶14} Additionally, the representations of Appellant’s expert witness, J. Norman Stark,
undercut Appellant’s position that the evidence of repainting was merely offered for the purpose
of impeachment. Mr. Stark’s affidavit addresses the causation element of the negligence in this
matter and focuses, in part, on the allegedly inadequate marking on the walkway. He averred
that Ms. Wilmoth’s fall was caused by “an irregular height pavement which was improperly
and/or inadequately marked to warn pedestrian users of an existing hazardous condition.”
Evidence that AMHA repainted the curb yellow after Ms. Wilmoth’s fall would bolster Mr.
Stark’s testimony regarding the inadequate marking of the curb and its role in causing the fall.
This further demonstrates that the introduction of the evidence would violate the policy behind
Evid.R. 407. See Rondy v. Richland Newhope Industries, Inc., 5th Dist. Richland No. 15CA45,
2016-Ohio-118, ¶ 60 (“Upon review, we agree with the trial court that Appellants are attempting
to use the subsequent remedial measures to prove a breach of duty under a theory of negligence,
which is disallowed under Evid.R. 407.”).
{¶15} Accordingly, we overrule Appellant’s second assignment of error.
Assignment of Error I
The trial court erred in granting summary judgment to [] AMHA.
{¶16} In the first assignment of error, Appellant contends that the trial court improperly
granted summary judgment in favor of AMHA. We disagree with Appellant’s argument that
summary judgment was improperly granted in favor of AMHA on the negligence per se claim.
However, we agree insofar as the trial court erred by granting summary judgment in favor of
AMHA on Appellant’s common law negligence claim without addressing the issue in its
judgment entry. 7
A. Standard of Review
{¶17} We review a trial court’s ruling on a motion for summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is only
appropriate where (1) no genuine issue of material fact exists; (2) the movant is entitled to
judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to
the non-moving party. Civ.R. 56(C). Before making such a contrary finding, however, a court
must view the evidence “most strongly in favor” of the non-moving party, id., and resolve all
doubts in its favor, Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992).
{¶18} Summary judgment proceedings create a burden-shifting paradigm. To prevail on
a motion for summary judgment, the movant has the initial burden to identify the portions of the
record demonstrating the lack of a genuine issue of material fact and the movant’s entitlement to
judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In satisfying the
initial burden, the movant need not offer affirmative evidence, but it must identify those portions
of the record that support her argument. Id. Once the movant overcomes the initial burden, the
non-moving party is precluded from merely resting upon the allegations contained in the
pleadings to establish a genuine issue of material fact. Civ.R. 56(E). Instead, it has the
reciprocal burden of responding and setting forth specific facts that demonstrate the existence of
a “genuine triable issue.” State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).
B. Negligence Per Se Claim
{¶19} “Negligence per se lessens the plaintiff’s burden only on the issue of the actor’s
departure from the standard of conduct required of a reasonable [person]. Such negligence
makes the actor subject to liability * * * but it does not necessarily make him liable. (Internal
quotations and citations omitted.) Sikora v. Wenzel, 88 Ohio St.3d 493, 497 (2000). “[T]he 8
plaintiff will also have to prove proximate cause and damages.” Robinson v. Bates, 112 Ohio
St.3d 17, 2006-Ohio-6362, ¶ 23. Appellant’s negligence per se claim is based on AMHA’s
purported violations of the Landlord-Tenant Act. The relevant provision states that:
A landlord who is a party to a rental agreement shall do all of the following:
(1) Comply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety;
(2) Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition;
(3) Keep all common areas of the premises in a safe and sanitary condition[.]
R.C. 5321.04(A)(1)-(3). A violation of any of these subsections can give rise to a negligence per
se claim. See Mann v. Northgate Investors, L.L.C., 138 Ohio St.3d 175, 2014-Ohio-455, ¶ 33;
Sikora at 498. Each of the subsections is considered below in turn.
{¶20} To support a violation of R.C. 5321.04(A)(1), a plaintiff must provide evidence
of a specific code that the defendant allegedly violated. See Lewis v. Wall, 11th Dist. Ashtabula
No. 2007-A-0048, 2008-Ohio-3387, ¶ 32 (determining that the plaintiff’s R.C. 5321.04(A)(1)
claim was “without merit” because the plaintiff “failed to provide any evidence that [the
defendant] breached any building, housing, health, or safety code”). Appellant has failed to
satisfy this requirement. Mr. Stark’s affidavit merely includes the conclusory averment that the
curb’s changing elevation violated portions of the American Disabilities Act. However, Mr.
Stark did not identify a specific provision of the ADA that was allegedly violated.
Consequently, there was no issue of fact for a jury to decide regarding the alleged violation of
R.C. 5321.04(A)(1).
{¶21} The record similarly lacks evidence that AMHA violated R.C. 5321.04(A)(2).
Under this subsection, a tenant must show that a defective condition exists that makes the 9
premises unfit or uninhabitable. The warranty of habitability is not a warranty “against all
discomfort and inconvenience.” (Internal quotation and citation omitted.) Wenzke v. Baird, 6th
Dist. Lucas No. L-13-1244, 2014-Ohio-3069 ¶ 18. “‘The meaning and interpretation of the
statutory phrase “fit and habitable” will not be liberally construed to include that which does not
clearly fall within the import of the statute.’” Gress v. Wechter, 6th Dist. Huron No. H-12-023,
2013-Ohio-971, ¶ 20, quoting Avila v. Gerdenich Realty Co., 6th Dist. Lucas No. L-07-1098,
2007-Ohio-6356, ¶ 9. The concept of fitness and habitability is concerned with defects that force
a tenant to endure serious deprivations of basic needs or threats to the tenant’s health or safety,
including “such defects as lack of water or heat, faulty wiring or vermin infestation[.]” Id.
{¶22} We determine as a matter of law that the sloped walkway with alleged
nonstandard curb height does not violate the requirement of fitness and habitability. See Sterling
v. Stevens, 7th Dist. Jefferson No. 02 JE 47, 2003-Ohio-5153, ¶ 16 (determining that a 1.5-inch
indentation in ground did not render property uninhabitable); Aldridge v. Englewood Village,
Ltd., 2d Dist. Montgomery No. 10251, 1987 WL 15015, * 3 (July 22, 1987) (determining that “a
threshold allegedly three-quarters of an inch too high” did not render property uninhabitable).
We are particularly compelled to reach this determination in this matter because there was no
allegation or evidence that tenants had no choice but to traverse the curb to gain access to the
building or the parking lot. See Mullins v. Grosz, 10th Dist. Franklin No. 10AP-23, 2010-Ohio-
3844, ¶ 36 (noting that “there was more than one usable access to the home” when deciding that
lack of handrail on front porch did not render property uninhabitable). There is no basis to
conclude that the curb made the premises unfit or uninhabitable. As a result, the trial court did
not err when it granted summary judgment to AMHA on Appellant’s claim of negligence per se
under R.C. 5321.04(A)(2). 10
{¶23} Finally, Appellant has failed to establish negligence per se under R.C.
5321.04(A)(3) because there is no evidence that AMHA knew or should have known of the
allegedly defective curb. The Supreme Court of Ohio has held that “a landlord will be excused
from liability * * * if [the landlord] neither knew nor should have known of the factual
circumstances that caused the violation of the Landlord-Tenant Act.” Sikora, 88 Ohio St.3d at
syllabus; see also Boyd v. Hariani, 9th Dist. Summit No. 22500, 2005-Ohio-4536, ¶ 24
(discussing import of Sikora). In attempting to prove notice to AMHA, Appellant argues that
AMHA created the alleged defect and that the faded condition of the white paint proved that the
condition had been worn for some time. But, this argument fails to show that AMHA lacked
constructive or actual notice that the curb presented a hazard because of its nonstandard height,
the slope of the walkway, or condition of the paint. AMHA’s property manager for the complex
testified that the construction department conducted a general inspection at least twice a year.
Appellant has failed to point to any portion of the manager’s testimony or any other evidence in
the record that would establish that these inspections resulted in actual or constructive
knowledge of the alleged hazard. Moreover, there is no indication in the record that any other
resident of the complex had previously fallen from the curb prior to Ms. Wilmoth’s trip-and-fall.
Consequently, without evidence that AMHA knew or should have known of the curb’s allegedly
hazardous nature, no question of fact remains for Appellant’s allegations under the Landlord-
Tenant Act. See Sikora at 498 (“Given that [the defendant] neither knew nor should have known
of the condition giving rise to the violation [of the Landlord-Tenant Act], his violation is excused
and he is not liable to [the plaintiff.]”); Boyd at ¶ 26-28 (determining that plaintiff failed to
provide necessary notice to landlord defendant in order to prove liability under the Landlord- 11
Tenant Act where the defendant’s inspectors did not note any concerns with a cracked step after
inspecting the property).
{¶24} A review of the record reveals that there is not a genuine issue of material fact
that precludes the grant of summary judgment in favor of AMHA on Appellant’s negligence per
se claim. Consequently, we conclude that the trial court did not err by granting summary
judgment to AMHA on this claim.
C. Common Law Negligence Claim
{¶25} Although the trial court extensively discussed the negligence per se claim in its
entry, it did not address Appellant’s common law negligence claim or whether the open and
obvious doctrine defense precluded recovery. While the parties briefed these issues on appeal,
we are a reviewing court and cannot provide meaningful review “[if the] trial court’s judgment is
not sufficiently detailed[.]” Zemla v. Zemla, 9th Dist. Wayne No. 11CA0010, 2012-Ohio-2829,
¶ 19. As a result, when the trial court fails to address a claim in the first instance, we are left
with no choice but to reverse the judgment and remand the matter for the trial court to address it.
See Maurer v. Wayne Cty. Bd. of Cty. Commrs., 9th Dist. Wayne No. 14AP0039, 2015-Ohio-
5318, ¶ 11 (“As we are a reviewing court, we will not consider issues relevant to the motion for
summary judgment in the first instance.”); State v. M.D., 9th Dist. Lorain No. 14CA010657,
2015-Ohio-4003, ¶ 7 (reversing trial court’s denial of expungement request because it only
addressed statutory eligibility, not the availability of an expungement under the trial court’s
inherent authority, which was the basis for the petitioner’s claim); Hunt v. Alderman, 9th Dist.
Summit No. 27416, 2015-Ohio-4667, ¶ 19 (reversing trial court’s grant of summary judgment
because the reviewing court was “unable to fully and appropriately review the trial court’s
decision in light of its brief entry”). Consequently, to the extent that Appellant argues the trial 12
court erred in granting summary judgment on the common law negligence claim, we agree
insofar as the trial court failed to address the issue in its entry. In line with this determination,
we reverse the trial court’s grant of summary judgment as it relates to Appellant’s common law
negligence claim and remand the matter “‘so that the trial court can create an entry sufficient to
permit appellate review.’” Pitts v. Sibert, 9th Dist. Summit No. 27345, 2015-Ohio-3020, ¶ 21,
quoting MSRK, L.L.C. v. Twinsburg, 9th Dist. Summit No. 24949, 2012-Ohio-2608, ¶ 10.
{¶26} Accordingly, we overrule Appellant’s first assignment of error as it relates to the
negligence per se claim. However, we sustain the first assignment of error as it relates to the
common law negligence claim solely to the extent that the trial court failed to properly address
this claim before granting summary judgment to AMHA.
III.
{¶27} Having sustained the first assignment of error in part and overruled the second
assignment of error, we affirm in part and reverse in part the judgment of the Summit County
Court of Common Pleas. This matter is remanded for further proceedings consistent with this
opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
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. 13
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 equally to both parties.
JULIE A. SCHAFER FOR THE COURT
WHITMORE, J. CONCURS.
CARR, P. J. CONCURRING IN PART, AND DISSENTING IN PART.
{¶28} I would reverse the grant of summary judgment on all claims.
APPEARANCES:
LAWRENCE J. SCANLON, Attorney at Law, for Appellant.
FRANK G. MAZGAJ and EMILY R. YODER, Attorneys at Law, for Appellee.