Boushack v. Grizes Invest., L.P.
58 N.E.3d 528
Ohio Ct. App.2016Background
- On Feb. 18, 2014, tenant Andy Boushack slipped on "black ice" on a covered concrete landing/steps at the rear common entrance of his apartment building (Lincoln Place Apartments) and fractured his T3 vertebra.
- Property is owned by Grisez Investment, L.P. and managed by Westgate Management; landing is under a small portico recessed beneath the main roof and lacks its own gutters; lighting existed but may have been focused on the parking lot.
- Boushack sued landlords for negligence, alleging violations of R.C. 5321.04 (failure to keep common areas safe), inadequate lighting, and failure to install gutters (alleged violation of local ordinance), causing an accumulation of ice.
- Defendants moved for summary judgment; the trial court granted it and Boushack appealed, challenging only whether genuine issues of material fact existed about landlords’ constructive notice and causation.
- Appellant conceded he could see where he was going but slipped on unseen "black ice"; record contained no evidence connecting a missing gutter or lighting deficiency to an "unnatural" accumulation of ice leading to the fall.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether landlords breached duties under R.C. 5321.04 by failing to provide lighting/gutters and keeping common area safe | Boushack: lack of lighting and gutters caused black ice; violation of statute/ordinance => negligence per se | Landlords: even if statute/ordinance violated, no proof that missing gutters or lighting caused the ice or fall; ice may be natural | Court: Summary judgment affirmed — no genuine issue that ice was an "unnatural" accumulation causally linked to defendants' conduct |
| Whether an "unnatural accumulation" of ice existed (necessary for landlord liability) | Boushack: formation of black ice on portico steps was caused/exacerbated by lack of gutters/lighting | Landlords: no evidence ice was man-made or caused by roof runoff; snow/ice are common winter hazards | Court: No evidence of unnatural accumulation; plaintiff failed to show nexus between alleged defects and ice formation |
| Whether negligence per se (statutory violation) alone establishes liability without proximate causation | Boushack: statutory breach should establish liability or at least raise factual issue | Landlords: negligence per se does not eliminate requirement to prove proximate cause and damages | Court: Negligence per se does not equal liability per se; plaintiff still must prove proximate causation and damages; he did not |
| Whether plaintiff showed landlord had superior knowledge or contractual duty to remove natural ice | Boushack: argued landlords knew or should have known of hazard | Landlords: no evidence of superior knowledge or contractual duty to remove ice/snow | Court: No evidence of superior knowledge or agreement to remove ice; thus natural accumulation theory fails |
Key Cases Cited
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (summary judgment standard on appeal)
- Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75 (elements of negligence)
- Robinson v. Bates, 112 Ohio St.3d 17 (negligence per se principles)
- Sikora v. Wenzel, 88 Ohio St.3d 493 (negligence per se requires proof of proximate cause and damages)
- Porter v. Miller, 13 Ohio App.3d 93 ("unnatural" accumulation = man-made accumulation)
- Myers v. Forest City Ent., Inc., 92 Ohio App.3d 351 (landlord duty to refrain from creating or allowing unnatural ice accumulation)
- Lopatcovich v. Tiffen, 28 Ohio St.3d 204 (recognition that snow/ice are ordinary winter hazards)