Bierl v. BGZ Assoc. II, L.L.C.
2013 Ohio 648
Ohio Ct. App.2013Background
- Bierl, a guest of Amber, sues BGZ for injuries from a trip-and-fall at an BGZ-owned apartment complex on Oct 17, 2009.
- Bierl asserts three theories: Landlord-Tenant Act violation, third-party beneficiary of Amber-BGZ lease, and common-law premises liability.
- The lease between Amber and BGZ defines the Premises and requires BGZ to keep common areas safe; Bierl attached the lease to her complaint.
- The dumpster area where Bierl fell is the focal point; a metal brace near the dumpster allegedly caused the fall, and Bierl carried a garbage bag obstructing her view.
- Trial court granted BGZ summary judgment, holding the dumpster area outside the leased premises, no LTA duty, Bierl not a third-party beneficiary, and the brace an open-and-obvious hazard; on appeal, the court reverses in part and remands.
- Bierl’s depositions show she could not see the brace until turning the corner; witnesses discuss visibility and open-and-obvious status; testimony indicates a genuine issue of material fact on open-and-obvious failure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the open-and-obvious doctrine bar Bierl’s premises-liability claim? | Bierl contends the brace was not open and obvious; genuine issue of material fact. | BGZ argues the brace was open and obvious, baring duty. | No; there is a genuine issue of material fact about open-and-obvious nature. |
| Whether the dumpster area is part of the leased premises under the Landlord-Tenant Act | Bierl contends LTA applies to injuries in common areas used by tenants and guests. | BGZ argues dumpster area is not a leased premises/common area under LTA. | Yes; dumpster area is a common area covered by R.C. 5321.04(A)(3). |
| Whether Bierl is an intended or incidental third-party beneficiary of Amber and BGZ’s lease | Bierl is an intended beneficiary with enforceable rights. | Bierl is at most an incidental beneficiary with no enforceable rights. | Bierl is an incidental beneficiary; cannot enforce the lease. |
Key Cases Cited
- Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414 (Ohio 1994) (landlord owes duties to guests; statute application to common areas)
- Mann v. Northgate Investors, LLC, 2012-Ohio-2871 (Ohio App. 10th Dist. 2012) (landlord-liability to guests in common areas under LTA; statutory duty applies)
- Novik v. Kroger Co., 2011-Ohio-5737 (Ohio App. 3d Dist. 2011) (open-and-obvious analysis; familiarity with area affects duty)
- Kidder v. Kroger Co., 2004-Ohio-4261 (Ohio App. 2d Dist. 2004) (open-and-obvious hazard in store setting; genuine issue of fact)
- Miller v. Beer Barrel Saloon, 1991-Ohio-OT-050 (Ohio App. 6th Dist. 1991) (mats placement and line of sight create factual question on open-and-obvious)