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IN THE SUPREME COURT OF OHIO
HICKORY GROVE INVESTORS, LTD.,
PLAINTIFF-APPELLANT,
V.
MICHAEL J. JACKSON, ET AL.,
DEFENDANTS-APPELLEES.
SUPREME COURT NO.
ON APPEAL FROM THE FRANKLINCOUNTY COURT OF APPEALSTENTH APPELLATE DISTRICTCASE NO. 08 APE 06-514
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT HICKORY GROVE INVESTORS, LTD.
Joseph A. Butauski (0039011)CABORIV & BUTAUSKI CO., LPA765 South High StreetColumbus, Ohio 43206(614) 445-6265FAX (614) [email protected]
Attorney for Plainttff-AppellantHickory Grove Investors, Ltd.
JAN 2 2 ZUu:'
CLERK OF COUR-1^UPU^^I^ Gou^r ^r pMif^
Eric E. Willison (0066795)HARRY LEWIS CO. LPA625 City Park AvenueColumbus, Ohio 43206614-221-3938FAX [email protected]
James L. Ervin, Jr. (0067016)BENESCH FRIEDLANDER COPLAN& ARONOFFHuntington Bldg41 South High Street, Suite 2600Columbus, Ohio 43215614-223-9300FAX: [email protected]
Attorneys for Defendants-Appellees
TABLE OF CONTENTS
Paee
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ANDGREAT GENERAL INTEREST .......................................................................
STATEMENT OF THE CASE AND FACTS ................................................... 2
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ......................... 6
Proposition of Law No. 1: When a city official opines thereis no violation of a city code, a landlord is excused fromliability as he does not have notice under R.C. 5321.04(A)(1)or (A)(2) .................................................................................................. 6
Proposition of Law No. 2: A lay person's opinion there isa failure to comply with a city code cannot raise a genuineissue of material fact when a city official has opined codecompliance occurred ............................................................................... 7
Proposition of Law No. 3: Application of the open andobvious doctrine is not precluded in actions asserting aviolation of R.C. 5321.04(A)(3) ............................................................. 10
Proposition of Law No. 4: Application of the open andobvious doctrine is not precluded in actions asserting aviolation of a city code........................................................................... 14
CONCLUSION ................................................................................................... 15
PROOF OF SERVICE ........................................................................................ 16
APPENDIX . ... .................... .... ...... ...... ..... ... .... ... ... .. ..... ..... .... ...... .......... ... ..... ...... . 17
A. Opinion of the 10°i District Court of Appeals (December 9, 2008) 1-13
B. Judgment Entry of the 10'h District Court of Appeals (December9, 2008) .............................................................................................. 14
C. Decision Granting Plaintiff's Motion for Partial Summary Judgment(October 11, 2007) ............................................................................. 15-19
D. Judgment Entry Granting Plaintiff's Motion for Partial SummaryJudgment (March 6, 2008) ............................................................... 20-22
11
EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC AND GREAT GENERAL INTEREST
This case presents the Court with critical issues under Ohio's Landlord-Tenant Act,
§5321.04. First, this case concerns whether a landlord can have the notice required under
§5321.04(A)(1) when a city official has determined the alleged defect does not violate the
applicable city code. A landlord's ability to rely on city officials is of the utmost importance.
Also at issue under the Landlord-Tenant Act is whether this Court's decision in
Robinson v. Bates (2006), 112 Ohio St.3d 17, precludes use of the open and obvious doctrine
when a violation of R.C. §5321.04(A)(3) is alleged. As the Court of Appeals' decision
currently stands, the open and obvious doctrine cannot be used when a violation of
§5321.04(A)(3) or a city code is alleged. Given the long-standing use of the open and
obvious doctrine, and the specific and limiting language referring to only (A)(2) of §5321.04
in Robinson, clarification of the availability of the open and obvious doctrine for alleged
violations to keep common areas clean and safe is essential, especially to landlords. If the
open and obvious doctrine cannot apply to alleged violations under (A)(3), landlords will
face an increased burden to fix even the most obvious and seeniingly harmless defects on the
property.
Given the apparent uncertainty and important public-policy issues that underlie both
the Landlord-Tenant Act and the open-and-obvious doctrine, this Court should accept
jurisdiction of this appeal. These issues arising under the Landlord-Tenant Act will
undoubtedly have a very profound impact on litigation in the State of Ohio.
In addition, the Court of Appeals' decision is of great general interest as it will
increase a party's ability to avoid summary judgment by merely offering self-serving lay
1
testimony in opposition to a city official's opinion on city code compliance. The effect of
the Court of Appeals' decision in the instant case will enable more claimants to avoid
sununary judgment and essentially render the opinions of city officials, charged with
interpreting city codes, useless in the summary judgment stage. As the Court's decision now
stands, a party can get to a jury by merely alleging non-compliance with a city code, despite
the owner having been informed by a city official that there is no code violation. The
Court's decision not only affects landlords, but all property owners in Ohio subject to
municipal or city codes. The court's decision effectively eliminates a property owner's
ability to rely on code officers charged with interpreting those codes. If property owners
across the state do not have the ability to rely on the opinions of code enforcement officers
regarding code violations, Ohio courts will be inundated with allegations of code violations,
with the party being able to get their case to a jury merely because they assert a code
violation exists. Surely, property owners and landlords must be able to rely on city officials
to avoid such unfair results.
While the issues in this case have a direct and obvious impact on landlords across the
state, the Court of Appeals' decision also affects property owners, tenants, guests at rental
properties and all potential litigants' burdens in moving or opposing summary judgment.
STATEMENT OF THE CASE AND FACTS
Defendant-Appellee Daiqwon Deal is the minor son of Appellee Christina Deal.
Appellee Michael Jackson thinks of Daiqwon as his son, although Mr. Jackson is not his
natural father or step-father. Defendants-Appellees resided at Hickory Grove Townhomes, a
complex owned by Plaintiff-Appellant. In July 2004, Hickory Grove Investors, Ltd. had a
six foot tall fence installed around the apartment complex at issue. The fence contained
2
picket tops which ended with 3/8 inch diameter rounded tips. The new fence had a pleasing
appearance and was expected to secure the property and enhance tenant safety.
On or about September 2, 2004, Daiqwon Deal was injured while climbing the fence
at Hickory Grove. Defendants-Appellees all testified that Daiqwon had been told to not
climb the fence. Despite the admonitions, Daiqwon proceeded to climb the fence. Daiqwon
was 10 years old at the time of his injury.
Plaintiff-Appellant Hickory Grove Investors, Ltd. filed suit against Defendant-
Appellee Michael Jackson on October 8, 2004 for restitution of the premises located at 1704
Stonebrook Lane, Columbus, Ohio, unpaid rent and associated damages. On October 14,
2005 Defendants-Appellees Michael Jackson, Christina Deal and Daiqwon Deal (collectively
referred to as Defendants-Appellees) filed a Counterclaim, which was later amended,
regarding the personal injury suffered by Daiqwon Deal on September 2, 2004 while
climbing the fence recently iristalled at the apartment complex. Thus, a personal injury claim
was asserted on behalf of Defendant-Appellee Daiqwon Deal, and a claim for loss of
consortium by Defendant-Appellee Christina Deal.
Defendants-Appellees' claims against Plaintiff-Appellant are based on their belief
Plaintiff-Appellant should be held liable because it had a fence on its property which they
allege was unsafe. Specifically, Defendants-Appellees claim Plaintiff-Appellant violated
City of Columbus Code §4525.13, which prohibits fences with metal prongs or spikes in
certain locations.
On March 30, 2007, Plaintiff-Appellant Hickory Grove filed a Motion for Partial
Summary Judgment. In support, Plaintiff-Appellant submitted the affidavit testimony of
Michael Farrenkopf of the Columbus Department of Development. Mr. Farrenkopf
3
inspected the fence and determined it was not in violation of the City Code. Specifically, he
determined the fence did not have spikes or prongs but rather ornamental tops which were
rounded so as to not be sharp. Defendants-Appellees filed a response to the motion on April
16, 2007. Defendants-Appellees also filed a Motion for Partial Summary Judgment asking
the Court to rule that Plaintiff-Appellant was negligent per se, and Defendants filed a motion
to Strike the Affidavit of Michael Farrenkopf.
On September 9, 2007, the Trial Court denied Defendants-Appellees' Motion to
Strike Affidavit of Michael Farrenkopf. On October 11, 2007, the Trial Court granted
Plaintiff-Appellant's Motion for Partial Summary and denied Defendants-Appellees' Motion
for Partial Summary Judgment on the issue of liability for personal injury. The remaining
claims were voluntarily dismissed by the parties.
In granting Plaintiff-Appellant Hickory Grove's Motion, the Court found that Hickory
Grove had provided testimony from Hickory Groves' managing member that the fence tops
were rounded rather than having a sharp point and testimony from Michael Farrenkopf that
the fence had rounded ornamental tops. (See October 11, 2007 Decision, pgs. 2-3, Exhibit
C). The Court found that Defendants-Appellees simply relied on their own assertions that, in
their own opinions, the tops were sharp. 1(d. at pg. 3). Thus, the Court concluded
Defendants provided no evidence Plaintiff breached its duty to tenants by installing an
unreasonably safe fence. (Id.). In addition, the Court found the fence was an "open and
obvious" condition which absolved Plaintiff of its duty to Defendants. (Id. at pg. 4).
Accordingly, Defendants' claims against Plaintiff failed. (See March 6, 2008 Judgment
Entry, Exhibit D).
4
Defendants-Appellees subsequently filed a Notice of Appeal. On appeal, Defendants
claimed the trial court erred in finding there was no genuine issue of material fact as to
whether the fence had sharp spikes or metal prongs. Defendants-Appellees also claimed the
trial court erred in requiring expert testimony regarding whether the fence had metal spikes
or prongs, and for not striking the affidavit of Mr. Farrenkopf indicating the fence complied
with the City of Columbus Code.
The Tenth District Court of Appeals reversed the judgment of the trial court. The
Court found that Defendants' evidence created a genuine issue of material fact precluding
summary judgment. (See December 9, 2008 Opinion, ¶26, Exhibit A). The Court found that
the trial court erred in discounting or weighing the testimony of Defendants against City
Code Enforcement Coordinator Farrenkopf. (Id. at ¶28). The Court also held that
Farrenkopf could not offer an expert opinion on whether the fence had spikes or prongs,
although he could offer a lay opinion. I(d. at ¶30). While the Court did not refer to the open
and obvious doctrine in its opinion, the Court opined during oral argument that the open and
obvious doctrine, which was an additional basis for the trial court's grant of summary
judgment, would not apply under R.C. §5321.04. Thus, by virtue of the reversal, the
Appellate Court's decision effectively holds the open and obvious doctrine cannot be applied
to any alleged violation of R.C. §5321.04, the Landlord-Tenant Act, or to negate an alleged
violation of the Columbus City Code at the summary judgment stage.
Plaintiff-Appellant Hickory Grove Investors, LTD. has now timely filed its Notice of
Appeal with this honorable Court.
5
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. 1: When a city official opines there isno violation of a city code, a landlord is excused from liabilityas he does not have notice under R.C. §5321.04(A)(1) or (A)(2).
Ohio Revised Code §5321.04(A)(1) requires a landlord to "[c]omply with the
requirements of all applicable building, housing, health, and safety codes that materially
affect health and safety." In the instant case, Defendants-Appellees have alleged a violation
under the Columbus City Code, thus invoking R.C. §5321.04(A)(1) and/or (A)(2). However,
Appellant cannot be held liable under RC. §5321.04(A)(1) or (A)(2) as Appellant could not
have notice that the fence at issue violated the Columbus City Code. In fact, it is the position
of Appellant that the fence did not violate the Code because an official with the city has
opined the fence complies with the City Code. Accordingly, as Appellant did not know, and
could not have reason to know, of any alleged violation of the Columbus City Code, they are
excused from any alleged liability.
In Sikora v. Wenzel (2000), 88 Ohio St.3d 493, this Court held that a lack of notice
excuses a landlord from a violation of R.C. §5321.04(A)(1) or (A)(2). In Sikora. this Court
was faced with a landlord who purchased property without any knowledge of defects
regarding the decks. Id. at 494. Specifically, the City had rejected plans because the decks
violated the Ohio Basic Building Code. Id. Construction continued without the plans being
modified, and the City later issued a Certificate of Occupancy. Defendant-Appellant
purchased the property some time after the Certificate was issued. Id. Following a deck's
collapse, Defendant-Appellant Wenzel was sued for a violation of R.C. §5321.04(A)(1) due
to the building code violation. Id. Wenzel was subsequently granted summary judgment as
he lacked notice of the defect. On appeal, the Second District reversed, holding Wenzel
6
could be strictly liable for a violation of R.C. §5321.04(A)(1). Id. This Supreme Court, after
determining a conflict existed and upon allowing a discretionary appeal, concluded that
§5321.04(A)(1) did not impose strict liability upon landlords. Id. at 497-498. Accordingly,
this Court held that "a landlord's violation of the duties imposed by R.C. 5321.04(A)(1) or
5321.04(A)(2) constitutes negligence per se, but a landlord will be excused from liability
under either section if he neither knew nor should have known of the factual
circumstances that caused the violation." Id. at 498 (emphasis added); clarifying Shroades
v. Rental Homes_ Inc. (1981), 68 Ohio St.2d 20.
In the instant case, Plaintiff-Appellant obtained the opinion of the City of Columbus
on whether the fence at issue complied with §4525.13 of the Columbus City Code. Plaintiff-
Appellant was informed the fence complied with the Code. Thus, Hickory Grove Investors,
LTD did not know of any violation. Additionally, given Mr. Farrenkopf s opinion and
Hickory Grove's Managing Member's observation of the rounded tips of the fence, Plaintiff-
Appellant had neither actual or constructive knowledge of any alleged violation of the City
Code. Accordingly, Appellant submits in light of the opinion of a city official, such as W.
Farrenkopf, on compliance with a city code, a landlord cannot know or have reason to know
of any factual circumstances causing the alleged violation. Thus, any alleged violation
should be excused from liability.
Proposition of Law No. 2: A lay person's opinion there is afailure to comply with a city code cannot raise a genuine issueof material fact when a city official has opined code complianceoccurred.
The Tenth District Court of Appeals found Defendants-Appellees' assertions that the
fence contained spikes in violation of the City Code created a genuine issue of material fact
7
and should have precluded summary judgment. However, Plaintiff-Appellant asserts
Defendants' self-serving testimony in opposition to the opinion of Mr. Farrenkopf that the
fence complied with the code did not create a genuine issue of material fact. In addition,
Plaintiff-Appellant asserts that a landowner such as Hickory Grove should be able to rely on
the opinion of city officials as to code compliance issues without being subjected to a jury
determination when faced with only lay opinions.
In the instant case, Defendants-Appellees had the burden to prove a violation of
Columbus City Code §4525.13. The Ohio Supreme Court has described the burden as
follows:
The general rule applicable is that where the violation of a statute,enacted for the protection of the health and safety of the public, givesrise to liability for consequent damages, it is required that it be shownnot only that there was a violation of such statute but also that suchviolation was a proximate cause of the injury claimed to have beensustained.
Mt. Nebo Bap. Church v. Cleveland Crafts Co. (1950), 154 Ohio St. 185, 191, 93 N.E.2d 668
(emphasis added). Plaintiff-Appellant submits that Defendants-Appellees were not able to
meet this burden.
Directly on point with the instant case is Dawson v. Cleveland Hei^hts (8s' Dist.,
2003), 2003-Ohio-179. In Dawson. a wrongful death and survivorship action was brought
against the City of Cleveland Heights in relation to a parking garage which the City owned,
maintained and operated. Id. at ¶1. Eric Dawson suffered fatal injuries when he fell from a
retaining wall on the third floor of the parking garage. Id. Dawson's estate brought the
action against the City alleging an unsafe condition existed in the parking garage. Id. at ¶6.
Specifically, Plaintiff claimed the retaining wall should have been 42 inches high, instead of
8
the 41 inches alleged by Plaintiff. Id. Plaintiff alleged the City was negligent per se because
the retaining wall did not conform to the Oluo Basic Building Code in violation of city
ordinance. Id. at ¶8. The City of Cleveland Heights moved for summary judgment, relying
on an affidavit from the Building Commissioner/Chief Building Official for the City of
Cleveland Heights Building Department. Id. at ¶13. The affidavit indicated the retaining
wall was forty-two inches when properly measured from its outmost edge to the parking
surface, and that it complied with the Building Code. Id. In response, Plaintiff submitted an
unswom and uncertified excerpt from a police report noting the retaining wall was forty-one
inches. Id. at 117.
In order to recover against the city on Plaintiff's claim, the Court found Plaintiff
was required to show a violation of the ordinance and building code requiring a 42 inch
high retaining wall. Id. at ¶18-19. In regards to that requirement, the City produced the
building commissioner's affidavit averring the wall was 42 inches, while appellant offered
no evidence other than the uncertified police report. Id. at ¶19. Thus, the Court held because
Plaintiff "failed to show there was a violation of the building code, we need not reach the
issue of proximate causation. Accordingly, the City is entitled to judgment as a matter of
law." Id. (emphasis added).
In the instant case, there was no support for Defendants-Appellees' assertions that the
fence contains spikes or prongs in violation of the Columbus City Code. For certain,
Defendants-Appellees did not produce any evidence which would create a "genuine" issue of
material fact. Given Plaintiff-Appellant's evidence that the fence complied with the code,
Defendants-Appellees could not rest upon their allegations but were required to submit some
evidentiary material showing a genuine dispute over material facts. See e.g. Henkle v.
9
Henkle (1991), 75 Ohio App. 3d 732, 735, 600 N.E.2d 791; Mitseff v. Wheeler (1988), 38
Ohio St.3d 112, 115. Plaintiff-Appellant asserts that Defendants-Appellees did not meet
their burden, and did not provide any evidence of a genuine issue of material fact that the
fence violated any applicable code.
Plaintiff-Appellant submits when a party only provides their own opinions on a code
violation in opposition to the opinion of a city official charged with code interpretation and
enforcement, the case should not be able to get to a jury. The effect of the Court of Appeals'
decision renders the opinions of city officials on city code compliance useless at the
summary judgment stage. If the Court of Appeals decision stands, all that will be needed to
combat summary judgment motions is testimony or affidavits from the claimant opining
what they conclude to be a violation of a city code. For example, a tenant who does not
believe a stairway handrail was firmly fastened in violation of Columbus City Code
§4525.03 could get to a jury despite a city code official declaring the stairway handrails to be
in compliance. A tenant who does not believe hallway lights are "suff'icient" under City
Code §4523.06 could get to a jury despite approval of the lighting by a city official. The
examples are endless. In contrast, landlords should be able to rely on the opinions and
decisions of the City, without being forced to defend claims to juries due to the lay opinions
of tenants on code compliance. Such a result could flood the courts with self-serving lay
testimony to avoid summary judgment in cases involving alleged code violations.
Proposition of Law No. 3: Application of the open and obviousdoctrine is not precluded in actions asserting a violation of R.C.§5321.04(A)(3).
In addition to alleging a violation of the Columbus City Code, Defendants-Appellees
also allege the fence constituted a violation of R.C. §5321.04. Defendants-Appellees'
10
Counterclaim did not specify which subsection of R.C. §5321.04 was allegedly violated.
However, since the fence was located in a common area and did not make the premises
"unfit" or "uninhabitable" as required by R.C. §5321.04(A)(2), Defendants-Appellees' claim
would invoke §5321.04(A)(3). R.C. §5321.04(A)(3) requires a landlord to "keep all
common areas of the premises in a safe and sanitary condition."
Claims brought under §5321.04(A)(2) require that the alleged defect be one that
makes the premises unfit or uninhabitable. The First Circuit Court of Appeals, in Cip,polone
v. Hoffmeier 2007-Ohio-3788, provided an analysis of what is needed to maintain a claim
under §5321.04(A)(2). The Court in Cippolone rejected the applicability of §5321.04(A)(2)
to allegedly defective window locks, stating that several appellate courts had held that
§5321.04(A)(2) "contemplates serious issues of health and safety." Id. at ¶22. The Court
further held:
`[I]n order to maintain a claim under R.C. 5321.04(A)(2) [duty to repair], aplaintiff must show that the premises are unfit and uninhabitable.' Bogner v.Titleist Club, L.L.C., 6th Dist. No. WD-06-039, 2006-Ohio-7003, ¶26[alleging presence of mold]. To run afoul of R.C. 5321.04(A)(2), defects`must be so substantial as to amount to a constructive eviction' and bemore than nuisances or trifles. Winegarden v. Eagle Ridge Condominiums(1995), 71 Ohio Misc.2d 7 13, 653 N.E.2d 759
Id. (emphasis added). Fitness and habitability have also been held to refer to such defects as
a lack of water or heat, faulty wiring, or vermin infestation. Avila v. Gerdenich Realty Co.,
2007-Ohio-6356.
Clearly, this case falls within §5321.04(A)(3), so the open and obvious doctrine is
available to preclude liability. In LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, the Supreme
Court addressed the application of the open and obvious doctrine to R.C. §5321.04(A)(3) and
rejected the argument that §5321.04(A)(3) imposed a duty upon landlords to remove
11
accumulated ice and snow from common areas. Id. at 211. The reasoning behind such rule
was that "liability imposed by statute will not be extended beyond the clear import of the
terms of the statute" and because "courts may not presume that the statute was intended to
abrogate the common law. Such an intention to abrogate or dismantle a long-standing rule of
common law must be expressly declared by the legislature or necessarily implied by the
language of the statute". Id. at 212.
In Howson v. Amorose et al. (10' Dist., November 30, 2000), 00-LW-6164, the open
and obvious doctrine was applied in a suit alleging a breach of a landlord's duty under
§5321.04(A)(3). In Howson, a tenant was injured when she fell after riding her bike into a
water-filled pothole in the parking lot. Id. at pg 1. Appellant alleged she knew the potholes
existed but could not see the pothole that was approximately two and one-half inches deep
because it was filled with water and looked like the rest of the surface. Id. at pg 2. Despite
her assertions, the Court affirmed summary judgment in favor of the landlord holding that
the "trial court properly applied the open and obvious doctrine insofar as the landlord's duty
to keep all common areas in a safe and sanitary condition..." Id. at pg 4.
The applicability of the open and obvious doctrine to cases under §5321.04(A)(3)
seems clear. However, this Court, in Robinson v. Bates did limit the use of the open and
obvious doctrine in landlord-tenant cases, only with regard to duty to repair cases under
§5321.04(A)(2), which should not affect the use of the open and obvious doctrine for
common area claims. 112 Ohio St3d 17. Specifically, this Court restricted the use of the
open and obvious doctrine in cases where a landlord's statutory duty to repair to keep the
premises in a fit and habitable condition, subsection (A)(2) of 5321.04, was at issue. Id. at
25. Robinson involved a tenant injured in her own driveway after the removal of a retaining
12
wall by a contractor. Id. at 18. The tenant was injured when she fell on an uneven slab of
footer after the workers had left the driveway's concrete footer exposed for three to five
days. Id. The trial court granted a directed verdict in favor of the landlord because the
condition was open and obvious. Id. at 23. The Court of Appeals and the Ohio Supreme
Court held that the facts of the case raised a question as to the state of the repairs, and, as
such, a directed verdict was improper. Id. at 25. In so holding, the Court concluded that
Plaintiff would not be protected from liability from the open and obvious doctrine if she
"breached her duty to repair and keep the leased premises in a fit and habitable condition",
thus addressing subsection (A)(2) of 5321.04. Id.
In construing Robinson v. Bates, the 10s` District Court of Appeals, in Lilly v.
Bradford Invest. Co., considered a landlord-tenant suit that arose when the stairs to the
basement at the residence separated and collapsed, causing the tenant to break her ankle.
2007-Ohio-2791. The tenant asserted claims of negligence and statutory violations under
§5321.04. On appealing the grant of summary judgment in favor of the landlord, Appellant
asserted that the court erred in failing to find that there existed genuine issues of material fact
as to whether Appellees complied with their common law and statutory duties. Id. at ¶17.
Appellants claimed Robinson held whether a landlord exercised reasonable care or breached
the statutory duties was a question for the jury. Id. at ¶23. The Court of Appeals rejected
this argument finding that:
the Ohio Supreme Court did not hold in Robinson that all claims against alandlord for breach of a landlord's statutory duty must be submitted to ajury. Rather, the Ohio Supreme Court examined the record before it andconcluded that, `[fJrom the testimony, it is clear that a jury should have beenallowed to consider whether [the landlord] exercised reasonable diligence andcare in [a repair] * * * or instead breached her statutory duty to repair.
13
Id.; citing Robinson at ¶24 (emphasis added). According to the Tenth District in Lilly.
summary judgment motions are still an appropriate tool for courts when considering cases of
alleged breaches of a landlord's duty under §5321.04.
Accordingly, since Robinson did not limit application of the open and obvious
doctrine to all statutory duties imposed on landlords under R.C. §5321.04(A), the open and
obvious doctrine should apply to determine whether a landlord owed a duty to a tenant when
a violation of R.C. §5321.04(A)(3) is alleged. There is no authority in Ohio law for the open
and obvious doctrine not being applicable to a landlord's duty to keep common areas safe
under (A)(3), which rule can now be clarified by this Court. Plaintiff-Appellant submits that
Robinson does not and should not apply to limit the doctrine's application to (A)(3) claims.
Pronosition of Law No. 4: Application of the open and obviousdoctrine is not precluded in actions asserting a violation of a citycode.
The open and obvious doctrine should be available in the instant case to preclude
liability under the alleged violation of §4525.13 of the Columbus City Code. Again, while
the open and obvious doctrine may not negate a landlord's statutory duty to repair under R.C.
§5321.04(A)(2), no such rule of law exists for violations of the Columbus City Code.
In Haynes v. Mussawir (1e Dist., 2005), 2005-Ohio-2428, Plaintiff-Appellant
Haynes appealed the trial court's grant of summary judgment in favor of Defendant-Appellee
Mussawir. Appellant's third assignment of error alleged the trial court made an erroneous
holding regarding the open and obvious doctrine and duties arising from specific statutory
and municipal safety law. Id. at ¶9. While the Court did not need to determine whether the
Columbus City Code provision was relevant as there was no landlord-tenant relationship, the
Court did make note that "the holding in Schoefield, stating that the open-and-obvious
14
doctrine does not abrogate a landlord's duty under R.C. 5321.04(A)(2), is limited to statutory
landlord tenant law." Id. at ¶20. Accordingly, the open and obvious doctrine may have been
applied to the Columbus City Code, if it was relevant.
There is no precedent for denying use of the open and obvious doctrine to claims
alleging violations of city codes. The open and obvious doctrine was correctly applied at the
trial court level to preclude liability. Thus, the Appellate Court erred when failing to
consider the open and obvious doctrine. Appellant submits this Court should accept
jurisdiction to address application of the open and obvious doctrine in claims alleging code
violations.
CONCLUSION
For all the foregoing reasons, Appellant Hickory Grove Investors, LTD. respectfully
requests that this honorable Court accept jurisdiction of this appeal.
Respectfully Submitted,
seph A'. Butauski (0039011)CABORN & BUTAUSHI, CO., LPA765 S. High StreetColumbus, OH 43206(614) 445-6265(614) 445-6295 [email protected] for Pdaintiff-Appeldant HickoryGrove Investors, Ltd
15
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
document was served, by ordinary U.S. Mail, postage prepaid, this -2-)-1 day of January,
2009, upon the following:
Eric E. Willison625 City Park AvenueColumbus, Ohio 43206Attorney for Defendants-Appellees
James L. Ervin, Jr.41 South High Street, Suite 2600Columbus, Ohio 43215Attorney for Defendants-Appellees
vw^^Josep hIC Butausk (0039011)
16
APPENDIX
A. Opinion of the 106' District Court of Appeals (December 9, 2008)
B. Judgment Entry of the 10' District Court of Appeals (December 9, 2008)
1-13
14
C. Decision Granting Plaintiffs Motion for Partial Summary Judgment(October 11, 2007) 15-19
D. Judgment Entry Granting Plaintiff s Motion for Partial Summary Judgment(March 6, 2008) 20-22
17
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Hickory Grove Investors, Ltd.,
Plaintiff-Appellee,
V.
Michael J. Jackson et al.,
Defendants-Appellants.
O P I N I O N
Cra!Fft,;
1"^S i;LC -° 01 2: 30 ..
LL;=ft;•t OF CoU:<TS
No. 08AP-514(C.P.C. No. 05CVH12-13444)
(REGULAR CALENDAR)
Rendered on December 9, 2008
Cabom & Butauski Co., L.P.A., and Joseph A. Butauski, forappellee.
Eric E. Willison; Benesch, Friedtander, Coptan & Aronoff, LLP,and James L. Ervin, Jr., for appellants.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
(l[1} Defendants-appellants, Michael Jackson and Christina Deal, appeal from a
judgment of the Franklin County Court of Common Pleas granting summary judgment to
plaintiff-appellee, Hickory Grove Investors Limited ("Hickory Grove"). For the following
reasons, we reverse and remand.
(12} In mid-December 2002, Jackson, Deal, and their family moved into an
apartment owned by Hickory Grove. At that time, the Jackson-Deal family included the
couple's two children and Deal's son, Daiqwon Deal.
EJCHIBIT
No. 08AP-514 2
{13} Sometime in July and/or August 2004, Hickory Grove constructed a six-
foot-high, steel fence along a portion of the apartment, comple)es perimeter. The fence
created a barrier between the apartment complex and the back of the neighboring
shopping center. Intent upon preserving its tenants' safety, Hickory Grove installed the
fence to prevent people from passing through its property to go to and from the shopping
center. The fence consisted of approximately 20 vertical pickets between each post, with
one horizontal railing banding the bottom of the pickets and two horizontal railings
banding the top of the pickets. Each picket rose above the top horizontal railing.
{14} On September 2, 2004, ten-year-old Daiqwon decided to climb the fence to
reach the shopping center on the other side. Daiqwon ran to the fence, jumped up and
grabbed the top of the fence, and then shimmied up the pickets. He pushed himself up
and over the top railing, and put his right foot on a four-foot chain-link fence located on
the shopping center side of the fence. While moving his left foot to the chain-link fence,
Daiqwon slipped and impaled himself on Hickory Grove's fence. One of the pickets
pierced the underside of Daiqwon's jaw and tongue before exiting through his mouth.
Fortunately, a neighbor heard Daiqwon's calls for help and summoned his parents.
Jackson held Daiqwon up while Deal called 911. Emergency responders cut the fence
railings on either side of Daiqwon to remove him from the fence, and then they airlifted
him to Children's Hospital. Doctors removed the picket from Daiqwon's jaw and tongue
and successfully treated his injuries.
{(15} On October 8, 2004, Hickory Grove commenced a forcible entry and
detainer action against Jackson in the Franklin County Municipal Court ("Municipal
Court"). The complaint alleged that Jackson had not paid his rent for October 2004, and
No. 08AP-514
it sought to recover the rental amount and other unpaid charges via a claim for breach of
contract On October 18, 2004, Hickory Grove voluntarily dismissed the forcible entry and
detainer action. After the dismissal, only the breach of contract claim remained pending
against Jackson.
{116} For over a year, neither party took any action with regard to Hickory Grove's
breach of contract claim. Then, on October 19, 2005, Jackson sought leave to file an
answer and counterclaim. In the counterclaim, Jackson and Deal, on their own behalf
and on behalf of Daiqwon, asserted claims for: (1) retaliatory eviction in violation of R.C.
5321.02, (2) common law negligence, (3) negligence per se based upon a violation of
R.C. 5321.04, (4) violation of R.C. 5321.06 and failure to return Jackson's security
deposit, (5) loss of consortium, (6) intentional infliction of emotional distress, and (7)
negligent infliction of emotional distress. Defendants' second, third, fifth, sixth, and
seventh claims all arose from Daiqwon's accident
{l[7} The Municipal Court granted defendants leave to file the answer and
counterclaim. Because defendants sought more than $15,000 in damages, the Municipal
Court transferred the case to the Franklin County Court of Common Pleas. Defendants
then filed an amended answer and counterclaim. Importantly, this pleading added an
eighth claim for negligence per se based upon a violation of Columbus City Code
("C.C.C.") 4525.13.
{18} After conducting discovery, Hickory Grove filed a motion seeking summary
judgment on defendants' claims for common law negligence, negligence per se based
upon a violation of R.C. 5321.04, loss of consortium, intentional infliction of emotional
distress, negligent infliction of emotional distress, and negligence per se based upon a
n
No. 08AP-514 4
violation of C.C.C 4525.13. On the same day, defendants filed a motion seeking
summary judgment in their favor on three claims-the two claims for negligence per se
and the claim that Hickory Grove evicted the Jackson-Deal family in violation of R.C.
5321.02.
{19} In relevant part, Hickory Grove argued that defendants could not present
any evidence to prove that it violated C.C.C 4525.13, and thus, it contended that the trial
court should grant summary judgment in its favor on defendants' negligence per se claim.
C.C.C. 4525.13(b) states:
No person shall erect, construct or maintain any electricfence, barbed wire fence or a fence having wire or metalprongs or spikes within a residential district or on propertywhich abuts residential property unless such fence is requiredto protect the public from hazardous equipment or from a clubor commercial swimming pool.
Defendants asserted in their complaint that the fence had metal spikes, which meant that
Hickory Grove's construction and maintenance of the fence violated C.C.C. 4525.13.
Hickory Grove, however, presented affidavit testimony from Robert J. Beggs, the
Managing Member of Hickory Grove, in which he stated that a Columbus Code
Enforcement Officer had inspected the fence and Hickory Grove did not receive any
citation. Additionally, Beggs directed the trial court to the fence manufacturer's brochure,
which stated that each picket top was "formed with a 3/8 [inch] diameter rounded tip
rather than a sharp point."
{110} In their motion for summary judgment, defendants set forth evidence that
they argued established Hickory Grove's liability for negligence per se based upon a
violation of C.C.C. 4525.13. In their depositions, Deal and Daiqwon testified that the
fence top consisted of spikes and that each picket came to a sharp point. Additionally,
4
No. 08AP-514
defendants asserted that the nature of Daiqwon's injury belied Hickory Grove's contention
that the pickets were so rounded that they could not be spikes or prongs. Defendants
also pointed out that the fence manufacturer's brochure described the fence as being
topped by "picket spear[s]."
11[11} After the parties completed the summary judgment briefing, they attended a
pre-trial conference during which the trial court allegedly questioned why neither partyI
had inteoduced evidence explaining the city of Columbus' position on whether the fence
violated C.C.C. 4525.13. In response, Hickory Grove filed a "supplemental
memorandum" to its motion for summary judgment and memorandum contra to
defendants' motion for summary judgment. Hickory Grove attached to its supplemental
memorandum the affidavit of Michael Farrenkopf, Code Enforcement Development
Program Coordinator for the City of Columbus Department of Development Farrenkopf
inspected Hickory Grove's fence and test'rfied as follows:
5) *** I noted that the fence-top had metal attachments thatupon first glance could appear to be spikes or prongs. Iobserved the fence tops, and also ran my hands along them,and quickly concluded they were in fact NOT spikes orprongs, but omamental tops constructed of the same light-weight metal as the fence. In fact, the portion of the tops thatmay have appeared to be "pointed," were rounded so as notto be sharp.
6) I'detemiined the fence was NOT in violation of CCCsectiori^ 4525.13, and so advised the Code EnforcementOfficer assigned the issue. Further I recommended the CodeEnforcement Officer not issue a notice of violation to theresponsible parBes for anything related to this fence.
{1[12} Defendants responded to this additional evidence with a motion to strike.
The trial court denied defendants' motion to strike and went on to grant summary
c
No. 08AP-514 6
judgment in Hickory Grove's favor based, in part, upon Farrenkopfs testimony.' The trial
court found that defendants' "lay opinions" could not counter the weight of the evidence
presented by Hickory Grove. On March 6, 2008, the trial court reduced its rulings on the
summary judgment motions to judgment and included in that judgment Civ.R. 54(B)
language.
{113} Defendants now appeal from the March 6, 2008 judgment and assign the
following errors:
[1.] The Trial Court erred when it found no genuine issue ofmaterial fact on this issue of whether the fence upon whichDefendant-Appellant Daiqwon Deal was injured had spikes ormetal prongs.
[2] The Trial Court erred when it found that experttestimony was required to establish whether or not the fenceupon which Defendant-Appellant Daiqwon Deal was injuredhad sharp tops or rounded tops.
[3] The Trial Court erred when it found when it denied [sic]Defendants Appellants' Motion to Strike Affidavit ofFarrenkopf and instead relied upon it when granting Plaintiff-Appellee Hickory Grove Investor Ltd.'s Motion for SummaryJudgment.
{1[14} We will address defendants' third assignment of error first. By that
assignment of error, defendants argue that the trial court erred in refusing to strike and in
considering Farrenkopfs affidavit testimony. Although we do not believe that the trial
court so erred, we conclude that even if the trial courPs treatment of Farrenkopfs
testimony constituted error, that error was harmless.
{115} Pursuant to Civ.R. 56(E), an affidavit must "set forth such facts as would be
admissible in evidence," or it is subject to a motion to strike. An appellate court will not
' The trial court also denied defendants' motion for summary judgment.
!„
No. 08AP-514 7
overturn a trial court's ruling on a motion to strike absent an abuse of discretion.
5amadder v. DMF of Ohio, Inc., 154 Ohio App.3d 770, 2003-Ohio-5340, at ¶17.
{116} in the case at bar, defendants primarily rely upon Wolfe v. Baskin (1940),
137 Ohio St. 284, and its progeny to argue that the trial court erred in admitting
Farrenkopf s affidavit testimony. In Wolfe, the Supreme Court of Ohio held:
It is a general rule that in a civil action the question of arrest isimmaterial. **" The same rule has been applied to non-arrest.
Id. at 289. (Citations omitted.) Subsequent Ohio cases have expanded the rule
articulated in Wolfe to preclude evidence of the issuance or non-issuance of a traffic
citation. See, e.g., O'Toole v. Lemmerman, Cuyahoga App. No. 80730, 2002-Ohio-5469,
at ¶32; Waller v. Phipps (Sept. 14, 2001), Hamilton App. No. C-000758; Bishop v.
Munson Transp., lnc. (Mar. 27, 2000), Belmont App. No. 97 BA 62.
{117} When a Columbus Code Enforcement Officer determines that a violation of
the Columbus Housing Code has occurred, he or she must give a notice of the violation
to the person or persons responsible for the violation. C.C.C. 4509.02. Like an arrest or
the issuance of a citation, the issuance of a notice of violation indicates that a law
enforcement officer has determined that the recipient disobeyed the law. Furthermore,
arrest, citation, and a notice of violation all constitute the initial step in criminal
prosecution. See C.C.C. 4509.99(A) (requiring Columbus Code Enforcement Officers to
make a "diligent effort" to serve a notice of violation before pursuing criminal prosecution
for a vio)ation of a Columbus Housing Code provision). Therefore, defendants have
made a powerful argument for the expansion of the rule articulated in Wolfe to preclude
No. 08AP-514 8
evidence that a Columbus Code Enforcement Officer did not issue Hickory Grove a notice
of violation.
{118} However, even if this court were to apply Woffe here, it would not
necessarily render any of Farrenkopfs affidavit testimony inadmissible. First, in the
majority of his affidavit, Farrenkopf offers his firsthand impressions of the fence and his
opinion as to whether the fence had spikes or prongs. Wolfe would not bar any of this
testimony. Second, Farrenkopf merely testffied that he recommended that the Columbus
Code Enforcement Officer not issue a notice of violation to Hickory Grove. Applied
strictly, Wolfe would only preclude testimony as to the issuance or non-issuance of a
notice of violation, not Farrenkopfs recommendation.
{119} Moreover, at worst, admission of Farrenkopfs recommendation amounted
to.harmless error. Hickory Grove had already introduced affidavit testimony from Beggs
that a Columbus Code Enforcement Officer had examined the fence and not issued a
"citation." As defendants did not object to Begg's affidavit, the trial court could consider it.
Otto v. Country Mut. Ins. Co., Franklin App. No. 07AP-227, 2008-Ohio-1514, at 112
(holding that without an objection to the admissibility of improper evidence offered in
support of or in opposition to a motion for summary judgment, the trial court may consider
the evidence). Consequently, even in the absence of Farrenkopfs testimony, the
evidence before the trial court would have included the fact that a Columbus Code
Enforcement Officer had not issued a notice of violation to Hickory Grove.
{9[20} In sum, we conclude that the trial court did not abuse its discretion in
denying defendants' motion to strike Farrenkopfs affidavit testimony. Even if the trial
a
No. 08AP-514 9
court had committed error in admitting and considering the testimony, that error was
harmless. Accordingly, we overrule defendants' third assignment of error.
(121} We will address defendants' first and second assignments of error together.
By those assignments of error, defendants argue that the trial court erred in concluding
that they did not offer sufficient evidence to establish a genuine issue of material fact as
to whether Hickory Grove violated C.C.C. 4525.13. We agree.
(1[22} Appellate review of summary judgment motions is de novo. Andersen v.
Highland House Co., 93 Ohio St.3d 547, 548, 2001-Ohio-1607. "'When reviewing a trial
court's ruling on summary judgment, the court of appeals conducts an independent
review of the record and stands in the shoes of the trial court.' " Abrams v. Worthington,
169 Ohio App.3d 94, 2006-Ohio-5516, at 1111, quoting Mergenthal v. Star Banc Corp.
(1997), 122 Ohio App.3d 100, 103. Civ.R. 56(C) provides that a trial court must grant
summary judgment when the moving party demonstrates that: (1) there is no genuine
issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and
(3) reasonable minds can come to but one conclusion and thatconclusion is adverse to
the party against whom the motion for summary judgment is made. Gilbert v. Summit
Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, at 116.
(123) When seeking summary judgment on the ground that the nonmoving party
cannot prove its case, the moving party bears the initial burden 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 an essential element of the nonmoving
party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The moving party does
not discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation
Q
No. 08AP-514 10
that the nonmoving party has no evidence to prove its case. Id. Rather, the moving party
must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that
the nonmoving party has no evidence to support its claims. Id. If the moving party meets
this initial burden, then the nonmoving party has a reciprocal burden outlined in Civ.R.
56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the
nonmoving party does not so respond, summary judgment, if appropriate, shall be
entered against the nonmoving party. Id.
{124} Where a legislative enactment imposes a specific duty for the safety of
others, failure to perform that duty is negligence per se. Chambers v. St Mary's School,
82 Ohio St.3d 563, 565, 1998-Ohio-184, citing Eisenhuth v. Moneyhon (1954), 161 Ohio
St. 367, paragraph two of the syllabus. Proving a violation of a legislative enactment
establishes that the alleged tortfeasor has breached its duty to the injured party.
Chambers, at 565. However, the injured party must also prove proximate cause and
damages in order to prevail on a. negligence per se claim. Id.
{1[25} In the case at bar, defendants assert that Hickory Grove is negligent per se
because it violated C.C.C. 4525.13(b). Whether or not Hickory Grove complied with its
duty under C.C.C. 4525.13(b) depends upon whether it constructed and maintained a
fence with spikes or prongs. Hickory Grove relies upon Farrenkopfs testimony to
establish that neither spikes nor prongs topped its fence. Additionally, Hickory Grove
points to the fence manufacturer's characterization of the picket tops as "rounded." In
response, defendants direct this court to Deal and Daiqwon's testimony that the pickets
ended in sharp spikes. Also, defendants note that the fence manufacturer referred to the
end of each picket as a "spear."
1h
No. 08AP-514 11
{9[261 We conclude that defendants' evidence contravenes the evidence Hickory
Grove submitted. By setting forth evidence tending to show that the fence had spikes or
prongs, defendants created a genuine issue of material fact that prohibits an award of
summary judgment to Hickory Grove.
{127) Hickory Grove, however, dismisses Deal and Daiqwon's testimony as
unworthy of consideration. While Deal and Daiqwon merely opine that the pickets ended
in sharp spikes, a lay witness may offer his or her opinions into evidence, as long as
those opinions are "(1) rationally based on the perception of the witness and (2) helpful to
a clear understanding of the witness' testimony or the detennination of a fact in issue."
Evid.R. 701. Here, both Deal and Daiqwon have firsthand knowledge of the fence: both
lived in close proximity to it and Daiqwon impaled himself on it. Additionally, Deal and
Daiqwon's testimony is helpful to the determination of a fact in issue because it directly
answers whether the fence had spikes or prongs-the operative issue in determining
whether Hickory Grove is negligent per se. Having met both Evid.R. 701 requirements,
Deal and Daiqwon's lay opinion testimony is admissible evidence.
{128} Because Deal and Daiqwon's testimony is admissible, both Hickory Grove
and the trial court erred in discounting it. Courts may not weigh the evidence or consider
the credibility of witnesses in ruling upon a motion for summary judgment. Santho v. Boy
Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, at ¶16. See, also, Gessner v.
Schroeder, Montgomery App. No. 21498, 2007-Ohio-570, at ¶43 ("When material facts
are controverted, courts may not weigh the credibility of witnesses or assess the relative
value of their testimony when deciding motions for summary judgment."). Here, the trial
court impermissibly weighed the evidence when it balanced Farrenkopfs testimony
I I
No. 08AP-514 12
against Deal and Daiqwon's testimony, and found Farrenkopfs testimony more
persuasive.
{129} Moreover, the fact that Farrenkopf testified as an "expert," while Deal and
Daiqwon only offered lay opinion, does not ameliorate the trial courts error. Pursuant to
Evid.R. 702(A), a witness may only testify as an expert if his or her testimony "relates to
matters beyond the knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons." See, also, Eannottie v. Carriage Inn, 155
Ohio App.3d 57, 2003-Ohio-5310, at 115 ("[E]xpert testimony is not admissible if the
opinion expressed is within 'the ken' or range of knowledge of the jury."); Campagna v.
Clark Grove Vault Co. (Jun. 28, 2001), Franklin App. No. OOAP-605 (When an issue is
within the experience, knowledge and comprehension of the jury, the expert testimony on
that issue is unnecessary and inadmissible because it is of no assistance to the jury.").
{1[30} Whether or not a fence picket ends in a spike or prong is a matter within the
range of common knowledge and experience. Therefore, Farrenkopf cannot offer an
expert opinion on that matter. His testimony is, nevertheless, admissible because he (like
Deal and Daiqwon) has personally observed the fence and thus may offer a lay opinion of
its physical characteristics.
{131} As defendants presented admissible evidence showing a genuine issue of
material fact, the trial court erred in granting Hickory Grove summary judgment.
Accordingly, we sustain defendants' first and second assignments of error.
{q32} For the foregoing reasons, we sustain defendants' first and second
assignments of error, and we overrule defendants' third assignment of error. We reverse
the judgment of the Franklin County Court of Common Pleas as it relates to defendants'
I C)
No. 08AP-514 13
claim for negligence per se based upon a violation of C.C.C. 4525.13. Furthermore, we
remand this matter to that court for further proceedings consist with law and this opinion.
Judgment reversed and cause remanded.
BRYANT and TYACK, JJ., concur.
I"^'
20569 - K56 ^ 3̂r.r,Cr:i . . i
IN THE COURT OF APPEALS OF OHIO f,.: ': :•.;;
TENTH APPELLATE DISTRICT i'" i,xC -° PN 2135
CLERK GF COURTS
Hickory Grove Investors, Ltd.,
Plaintiff,Appeiiee,
V.
Michael J. Jadcson et ai.,
Defendants-Appellants.
No. OaAP-514(C.P.C. No. 05CVH12-13444)
(REGULAR CALENDAR)
JUDGMENT ENl'RY
For the reasons stated in the opinion of this court rendered herein on
December 9, 2008, appeiiants' ftrst and seoond assignments of error are sustained, and
the third assignment of error is overfuied. It is the judgment and order of this court that
the judgment of the Fnanldin County Court of Common Pleas is reven;ed as it relates to
appellants' ctaim for negiigence per so based upon a vioiation of C.C.C. 4525.13.
Furthermore, we remand this matt,er to that oourt for further proceedings In accordance
with law consistent with said opinion. Costs assassed against appellee.
KLATT, J., BRYANT & TYACK, JJ.
/By , ecW
Judge VViliiam A.
IN THE COURT OF COMMON PLEAS, FR.ANKLIN COUNTY, OHIO
Hiclcory Grove Investors, LTD.,
Plaintiff,
v.
Micliael J. Jaclcson, et al.,
Defendants
Sn
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Case No. 05CVH-12-13444 C
^
JUDGE LYNCH
DEt CISION GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARYJUDGMi:JATT, FILrD MARCII 30, 2007
and
DRCISION DRNYING DFFRNDANTS' MOTION FOR PARTIAL SUMMARYJUDGMFNT FILLD MARCIi 30, 2007
LYNCIi, J.
Rendered this ^ day of October, 2007. C")
C
cn
No_
0
This matter is before the court upod plaintifl's mation for partial supntnary-oc. -' -c'
judgment regarding defendants' amended counterclaim pursuant to Civ. R. 56(B). 5n the '^,c W
same day, defendants filed their motion for summary judgment on the issue of liability
for defendants' injuries. Defendants also moved for judgment on the claim for retaliatory
eviction. Fach side filed memoranda r,nntra and replied Subseqtentlv, and with the
permission of the court, plaintiff filed additional memorwtda following a pre-ttial n
^
^
conference. The court then, denied defendants' motion to strike the subsequently filed
affidavit.^K0-n ^
This case involves and apartment complex and its tenants, the named defendants_ o
The minor child was injured when lie was impaled on a fence that had been recently ^
-v
rv
tvV> 0
purchased and installed by tlte third party defendant This matter was initially fded by
-EXHIBIT
14,
plaintiff as an action in FE&D and was transferred from Fraiilclin County Municipal
Court to this eourt following defendants' counterclaims_
Now, each side moves for partial judgment as a matter of law on defendants'
second, third, frfth, sixth, seventh and eighth claims - the claims centering around the
fence and the child's injuries. On September 2, 2004, 10-year-o1d Daiqwon Deal was
injured while clinibing a newly erected six-foot high metal fence in the comrnon area of
his apartment complex. Defendants claim that the apartment complex was negligent and
breached its duty to the defendants by installing the spiked fence and that it is the
plaintiff s fault that Daiqwon ended up impaled on one of the piclcets. Daiqwon's
mothei, Cluistina Deal, and Defendant Michael Jackson, who considers himself to be
Daiqwon's stepfatlier, have both pled clain s stemming from Daiqwon's injuries.
Summary judgment was established througli Civ R. 56 (C) as a procedural device
designed to terminate litigation when there is no need for a formal trial. See Nw'ri3 v
Olvio Std Co (1982), 70 Ohio St. 2d I. The rule mandates that the following be
established: (1) that there is no genuine issue of any material facts; (2) th3rt the moving
party is entitled to judgment as a matfer of law, and (3) that reasonable minds can come
to but one conclusion and, viewing the evidence most strongly in favor of the non-
moving party, that conclusion is adverse to the non-moving party. See, e g., Dostic v
Cotutor (1988), 37 Ohio St. 3d 144.
It is the position of defendants that the metal fence violated Columbus City Code
Ordinance 4525.13 which prohibits fencing with metal prongs or spikes absent certain
conditions. Defendants contend that the fence has sharp steel spikes and plaintiff is
negligeni per se with regard to @ie ordinance_ However, plaintiff has provided the court
2
Ll9
with product literature and testimony from I-Iiclcory Groves' managing member Robert J.
Beggs demonstrating that the piclcet top is rounded rather than having a sharp point.
Despite the fact that defendants insist a violation exists, plaintiffs point out that the fence
was inspected after the incident and that no violations were issued_ Most importantly,
plaintiff provided the court with an affidavit from Michael Farrenkopf, Code
Enforcement Development Program Coordinatoi with the City of Columbus. Farrenkopf
inspected the fence and concluded that there were no spikes or prongs butratherrounded
ornamental tops. Farrenkopf claims ihat, while the tops may have appeared to be pointed,
they were in fact rounded so as to not to be sharp. By contrast, defendants simply rely on
their assertions that, in their lay opinions, the tops were sharp. Without inore, the court
finds judgment for plaintiff on this issue. Given this finding, the court finds that
defendants' claim for a violation of R.C. § 5321.04 fails as well as defendants have
provided no evidence plaintiff breached its duty to its tenants by installing an
unreasonably unsafe fence.
Next, it is plaintiff s position that defendants' claims are barred by the defense of
primary or "no duty" assumption of the risk. Plaintiff also clainis that no duty was owed
to defendants pursuant to the "Open and Obvious" doctrine. Each position is supported
by the facts in this case. Deposition testimony demonstrated that Daiqwon was wamed
by Jackson not to climb the fence on at least one occasion and that Daiqwon understood
this directive. Likewise, Daiqwon's mother had admonished the chi[d not to climb the
same fence in a different location around Fhe swimming pool. That fence had been
installed at an earlier date and Ms Dea[ claims she had "gone off on him" when she
caught Daiqwon jumping off the pool fence. Deal claims that she yelled at all the kids
3
)--)
telling them to stay away from the fence. Jackson admitted that Daiqwon was disobeying
his parents when he climbed the fence and would not have been injured if he heeded their
wamings. Deal spoke with Daiqwon after the incident characterizing his decision to
climb the fence as being a "poor" decision Neither parent formally complained about the
fence prior to the incident at issue; however, Deal claims she spoke to those installing the
fence in the presence of the rental manager. Daiqwon's testimony appears to mirror that
of his parents- He testified that he tcnew he should not climb the fence and that his
parents thought it was dangerous- Daiqwon claims he thought the fence looked
dangerous too, but essentially, he did not care and chose to climb it anyway.
The court recognizes that, because Daiqwon was ten years old at the time of the
incident, there exists a rebuttable presumption that he was incapable of "forming the
necessary judgments for self care." See, e.g., Gaffney v Sexton (Feb. 18, 1993),
Montgomery C.A. Case No.. 13534, 1993 Ohio App. LEXIS 848. Thus, a fact issue
exists precluding judgment assigning assumption of the risk to Daiqwon_ However, the
court finds tliat, in absence of a code violation or evidence of a defecGve condition
pursuant to R.C. § 532 1 .04, there existed an "open and obvious" condition that absolves
plaintiff of its duty to defendants. See, e.g, WcDaniela v PeDoslry (Feb 5, 1998),
Franklin App- No. 97APL•08-1027, 1998 Ohio App. LEXIS 402.
Finally, defendants niove for judgment as a matter law on their claim puisuant to
R C. § 5321.02.. It is defendants' position that they were evicted for complaining about
the fence and that the landlords were not happy tiiat the fence had to be cut in order to
trrat Daiqwon's injuries. Defendants claim the timing of the eviction coupled with prioi
waiver of late payments establishes plaintifFs pretense for eviction for non-payment of
4
14l
rent, when in fact it constituted statutory revenge- Conversely, Mr. Beggs claims that no
one complained to Hickory Grove about the fence prior to Daiqwon's injury and claims
that Jackson tlueatened the office staff- The court finds that there exists genuine issues of
fact in this claim, namely whether Deal andlor Jaclcson "complained" to the landlord of a
violation of R.C. § 5321.04. Therefore, the court finds that defendants are not entitled to
judgment as a matter of law at this point in time.
Upon review, the court finds that there exists no genuine issues of material fact
exist with respect to the injtiries sustained by Daiqwon and the claims asserted by his
parents. The court finds that there exists sevetal issues of material fact on the claim for
retaliatory eviction. Accordingly, the court GRANTS plaintiffs motion 1br summary
judgment, and DRNII;S defendants' motion for sunlmary judgment Counsel for
plaintiff shall prepare, circulate, and submit an appropriate judgment entry
consistent ivitlt Loc. R. 25.01.
IT IS SO ORDERl;D.
Copies to:
Joseph A- Butaitski, Esq.Counsel for Plaintiff
iames L- Ervin, Jr., Esq_Counsel fot Defendants
Eric E Willison, Esq.Co-Counsel for Defendants
Daniel G Wiles, Esq.Counsel For Tliird Party Defendant
5
,Q
D7,723 - B14
IN.THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
HICKORY GROVE INVESTORS, LTD.,
PLAINTIFF,
V. . CASE NO. 05CVH-12-13444
MICHAEL J. JACKSON, ET AL., JUDGE LYNCH^ no^
DEFENDANTS.C, xr i
JUDGMENT ENTRY G ^s •°`"^o°PL. y^
This case came before the Court for consideration of Plaintiffs 1gotio^or°y
Partial Summary Judgment filed March 30, 2007 and Defendants' Motion for
Partial Summary Judgment, filed March 30, 2007. After consideration of Plsintiff'a
Motion for Partial Summary Judgment and the Memorandum in Support,
Defendants' Memorandum Contra Plaintiff's Motion for Partial Summary
Judgment, Plaintifl''s Reply Memorandum, Plaintiff's Supplemental Memorandum
in Support of Motion for Partial Summary Judgment, and Defendants'
Memorandum Contra Plaintifi's Supplemental Memorandum, as well as all
admissible Rule 56 evidentiary materials submitted to the Court, it is the
determination of this Court that there is no genuine issue of material fact, and
Plaintift's Motion for Partial Summary Judgrnent is granted. Plaintiff Hickory
Grove Investors, Ltd. is entitled to summary judgment as a matter of law with
respect to the Second, Third, Fifth, Sixth, Seventh and Eighth Claims advanced in
Defendants' Amended Counterclaim as a matter of law, as the defective condition
claimed by Defendants was discernible, open and obvious and there is no evidence
that Plaintiff breached any duty to Defendants by installing an unreasonably
EXHIBIT
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unsafe fence. Therefore, Plaintiff did not breach any duty which was owed to
Defendants.
Therefore, it is ORDERED, ADJUDGED AND DECREED that summary
judgment be, and hereby is, rendered in favor of Plaintiff Hickory Grove Investors,
Ltd., with the Second, Third, Fifth, Sixth, Seventh and Eighth Claims advanced in
Defendants' Amended Counterclaim dismissed.
After consideration of Defendants' Motion for Partial Sununary Judgment
and the Memorandum in Suppart, Plaintif['s Memorandum Contra, and
Defendants' Roply Brief, as well as all admissible Rule 56 evidentiary materials
submitted to the Court, it is the determination of this Court that there are genuine
issues of material fact, and Defendants' Motion for Partial Summary Judgment is
hereby overruled.
Therefore, it is ORDERED, ADJUDGED AND DECREED that Defendants'
Motion for Partial Summary Judgment be, and hereby is, denied.
There is no just cause for delay.
G. ^
seph A. Butauski (0039011)CABORN & BUTAUSBI CO., L.P.A.765 South High StreetColumbus, Ohio 43206(614) 445-6265ibu tau skiWsbc¢l obai. netAttorney for Plaintif)''Hickory Grove Investors, Ltd.
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D7'123 - B16
/s / sU{3o,-.;-t-C-A buT e.,oT
James L. Ervin, Jr., Esq. (0067016)Benesch Friedlander Copelan & Aronoff88 East Broad Street, Suite 900Columbus, OH 43215-3506Atlorneyfor Defendants
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