2016 Ohio 2698
Ohio Ct. App.2016Background
- Tomasko and companions rented defendants' four-bedroom vacation home in Hocking County; an upstairs bedroom had a sliding-glass door to a balcony with a step down to the deck.
- In 2011 the group observed the balcony step was "deep"; they did not use that suite that year; the balcony was repaired before the 2012 rental.
- On June 25, 2012, after a ground-floor fire, Tomasko opened the sliding door at night (no exterior balcony lighting), stepped out while holding the door, and fell. The step measured 10.75 inches. Tomasko had never been on that balcony before.
- Tomasko sued for negligence (excessive step) and negligence per se (building-code violation: exterior landing shall not be more than 8.5 inches below threshold). Defendant moved for summary judgment; trial court granted it, holding no negligence per se and that the hazard was open and obvious.
- On appeal, Tomasko argued (1) a genuine issue of material fact existed whether the step was open and obvious given attendant circumstances and her precautionary conduct, and (2) a 2.25-inch excess violated the applicable building code and therefore constituted negligence per se.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the excessive step was open and obvious (premises-liability duty) | Tomasko says darkness and attendant circumstances distracted her; she exercised precautions (held door, slowly put foot down) so open-and-obvious doctrine shouldn't apply | Defendants say the darkness was a warning; Tomasko intentionally stepped into darkness and did not investigate, so the open-and-obvious (step-in-the-dark) rule bars recovery | Court: Hazard open and obvious; attendant-circumstances exception not shown; summary judgment proper |
| Whether violation of building code (landing depth) is negligence per se | Tomasko contends the 10.75" step violated CABO code (max 8.5") and this constitutes negligence per se | Defendants point to Ohio law that building-code violations are evidence of negligence but not negligence per se; open-and-obvious may still be a defense | Court: No negligence per se; code violation is evidence only; open-and-obvious defense applies; summary judgment affirmed |
Key Cases Cited
- Sidle v. Humphrey, 13 Ohio St.2d 45 (1968) (landowner not liable for dangers known or so obvious invitee reasonably should discover)
- Menifee v. Ohio Welding Products, 15 Ohio St.3d 75 (1984) (elements of actionable negligence: duty, breach, proximate cause)
- Armstrong v. Best Buy Co., 99 Ohio St.3d 79 (2003) (reaffirmed open-and-obvious doctrine focuses on duty; where danger is open and obvious, landowner owes no duty)
- Chambers v. St. Mary's School, 82 Ohio St.3d 563 (1998) (violation of administrative rule or building code does not constitute negligence per se)
- Lang v. Holly Hill Motel, 122 Ohio St.3d 120 (2009) (building-code violation is evidence of negligence; open-and-obvious doctrine may be asserted as a defense to code-based claims)
- Swoboda v. Brown, 129 Ohio St. 512 (1935) (distinguishing ordinary negligence from negligence per se; latter arises from statutory or ordinance violation)