Hershberger v. Shelmar Realty, Inc.
2017 Ohio 353
| Ohio Ct. App. | 2017Background
- Shelmar Realty owned a mobile home park and hired Brent Hershberger as an independent contractor to repair/remodel unit 40; later agreed to rent unit 40 to him.
- Shelmar replaced unit 40's roof but did not install awnings or gutters; water/ice accumulated on the front stairs/landing.
- On January 25, 2014, Hershberger slipped on ice exiting unit 40 and suffered a serious left-arm injury.
- Hershberger sued Shelmar for negligence and negligence per se, arguing failure to install gutters/awnings violated habitability statutes (R.C. 5321.04(A)(2) and/or R.C. 4781.38(A)(2)).
- Shelmar moved for summary judgment, asserting the condition was open and obvious, it had no superior knowledge or contractual duty to remove ice, and installing gutters/awnings was not required or causative; trial court granted summary judgment for Shelmar.
- On appeal, the Ninth District affirmed but did so on procedural grounds: Hershberger’s appellate brief failed to cite parts of the record per App.R. 16(A)(7), so the court declined to reach the merits; one judge dissented, willing to reach the merits and find a factual dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shelmar breached a statutory duty (failure to install gutters/awnings) causing the injury | Hershberger: lack of gutters/awnings caused water/ice accumulation and violated housing/manufactured-home park statutes (negligence per se) | Shelmar: no statutory duty to install gutters/awnings; even if present, not the proximate cause of the fall | Not reached on merits — appellate court disregarded the argument for lack of record citations and affirmed summary judgment on that procedural basis |
| Whether the ice was an open-and-obvious condition eliminating duty | Hershberger: open-and-obvious doctrine inapplicable to negligence per se claim | Shelmar: ice was open and obvious; no duty to protect or warn | Trial court found condition open and obvious; appellate court did not address merits due to briefing defect |
| Whether Shelmar had superior knowledge or contractual duty to remove snow/ice | Hershberger: Shelmar’s control/repair obligations created duty | Shelmar: no superior knowledge or contractually imposed duty to remove ice | Issue not addressed on appeal because of procedural forfeiture |
| Whether summary judgment was improper because genuine factual disputes exist | Hershberger: disputed causation and statutory duty preclude summary judgment | Shelmar: evidence supports judgment as a matter of law | Appellate court affirmed based on procedural default; dissent would have found genuine factual issue precluding summary judgment |
Key Cases Cited
- Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7 (6th Dist. 1983) (standard for viewing facts on summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio 1977) (three-part summary judgment test under Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (moving party's burden on summary judgment and nonmoving party's burden to show genuine issue)