2019 Ohio 4851
Ohio Ct. App.2019Background
- Patricia Asher (79, cane user) fell backward down three exterior steps entering the rear door of Bernens Convalescent Pharmacy; the door opened outward and extended beyond the top landing.
- Asher had used the rear entrance several times before but had not previously opened the door herself while stepping onto the landing. Her fall caused serious injury.
- Bernens was a tenant; Glenway Real Estate, LLC owned the building. Asher sued both for negligence and negligence per se (alleging violations of the Cincinnati Municipal Code, the Ohio Building Code, and the ADA).
- Defendants moved for summary judgment, arguing the hazard was open and obvious, they lacked notice, and building-code/ADA violations could not support negligence per se (and that codes predated the stairs). Trial court granted summary judgment to defendants.
- On appeal the First District reversed as to negligence (hazard not open and obvious; factual dispute on notice) and affirmed as to negligence per se (municipal-code provisions and the Ohio administrative building rule cited did not provide a definite legislative standard for negligence per se).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stair/door hazard was open and obvious | Asher: hazard not apparent until door was opened; invitees could not perceive risk in advance | Defs: stairs, handrail, and door were visible; Asher had used entrance before | Held: Not open and obvious as a matter of law — hazard was not discoverable until the door was opened |
| Whether defendants had notice of the hazardous condition | Asher: Bernens/Glenway knew or considered reconfiguring entry; prior incidents occurred | Defs: Affidavits denying prior knowledge | Held: Genuine factual disputes exist about actual/constructive notice — summary judgment improper on negligence |
| Whether C.M.C. provisions cited support negligence per se | Asher: Violations of C.M.C. 1101-63.1 and 1119-03.3 establish statutory duty/breach | Defs: Provisions are general/abstract and do not set a definite standard | Held: These municipal provisions are too general to establish negligence per se; can only be evidence of negligence |
| Whether the Ohio Building Code / ADA can form negligence per se | Asher: Cincinnati adopted Ohio Building Code; rule therefore legislative | Defs: Ohio Adm. Code is an administrative rule (not legislature); Cincinnati retained its own CBC | Held: Administrative building-code provision cannot supply negligence per se; Cincinnati did not adopt Ohio code as legislation for this purpose |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (de novo review of summary judgment)
- Patterson v. Adleta, Inc., 119 N.E.3d 982 (1st Dist. 2018) (elements of negligence)
- Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75 (1984) (negligence elements)
- Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120 (2009) (open-and-obvious doctrine bars landowner duty)
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (2003) (open-and-obvious hazard rule)
- Heckert v. Patrick, 15 Ohio St.3d 402 (1984) (notice requirement for premises defects)
- Chambers v. St. Mary's School, 82 Ohio St.3d 563 (1998) (negligence per se requires legislative enactment)
- Mann v. Northgate Investors, L.L.C., 5 N.E.3d 594 (Ohio 2014) (statute must set a positive, definite standard to create negligence per se)
- Gibbs v. Speedway, LLC, 15 N.E.3d 444 (2014) (municipal ordinances may, in principle, serve as legislative enactments for negligence per se)
- Sabitov v. Graines, 894 N.E.2d 1310 (Ohio App. 2008) (municipal-code-based negligence per se claims not summarily dismissible when enacted legislatively)