Wilmoth v. Akron Metro. Hous. Auth.
2016 Ohio 3441
Ohio Ct. App.2016Background
- Tenant Barbara Wilmoth (64, multiple serious health conditions) fell off a sloped curb/walkway at AMHA’s Allen Dixon apartment complex while carrying boxes to a trash disposal area; she did not see the curb and suffered fractures.
- The walkway slopes from ~1 inch to >6 inches in height creating a curb; AMHA had painted the curb white (later repainted yellow after the incident).
- Area near disposal site contained many boxes and some inactive construction materials; no ice, snow, or workers were present.
- Wilmoth sued AMHA asserting negligence per se under the Landlord-Tenant Act (R.C. 5321.04(A)(1)-(3)) and common-law negligence; the trial court granted summary judgment for AMHA and excluded evidence of AMHA’s post-accident repainting under Evid.R. 407.
- On appeal, the Ninth District affirmed summary judgment as to negligence per se (finding no code violation, no breach of habitability, and no notice to landlord) and upheld exclusion of subsequent remedial measures; but reversed and remanded as to common-law negligence because the trial court’s entry did not address the open-and-obvious issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of post-accident repainting (Evid.R. 407) | Repainting should be admissible to impeach AMHA’s open-and-obvious defense | Evidence is barred by Evid.R. 407 because it seeks to prove negligence, not impeachment or other permitted purpose | Exclusion affirmed — trial court did not abuse discretion; repainting inadmissible under Evid.R. 407 |
| Negligence per se under R.C. 5321.04(A)(1) (violation of code) | Curb violated ADA/building/health code making AMHA liable per se | No specific code provision identified to support the claim | Summary judgment affirmed for AMHA — plaintiff failed to identify a specific code violation |
| Negligence per se under R.C. 5321.04(A)(2) (habitability) | Sloped walkway/nonstandard curb rendered premises unfit/habitability breach | Sloped curb does not render dwelling uninhabitable; not a basic need defect | Summary judgment affirmed for AMHA — condition not within ‘‘fit and habitable’’ standard |
| Negligence per se under R.C. 5321.04(A)(3) (notice) | AMHA created the defect and faded paint indicates long-standing hazard; thus AMHA had notice | No evidence of actual or constructive notice; regular inspections did not show the hazard and no prior incidents reported | Summary judgment affirmed for AMHA — plaintiff failed to show AMHA knew or should have known |
| Common-law negligence / open-and-obvious defense | Curb’s marking was inadequate; open-and-obvious should not defeat claim | Curb was open and obvious, negating duty under common-law negligence | Remanded — trial court failed to address the common-law negligence claim and open-and-obvious issue; appellate court cannot review without a trial-court entry |
Key Cases Cited
- Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266 (Ohio 2002) (elements of negligence and duty discussion)
- Armstrong v. Best Buy, Co., Inc., 99 Ohio St.3d 79 (Ohio 2003) (open-and-obvious doctrine can bar duty in negligence claims)
- Mussivand v. David, 45 Ohio St.3d 314 (Ohio 1989) (existence of legal duty is a question of law)
- Sikora v. Wenzel, 88 Ohio St.3d 493 (Ohio 2000) (landlord excused from liability under Landlord-Tenant Act if landlord neither knew nor should have known of condition)
- Robinson v. Bates, 112 Ohio St.3d 17 (Ohio 2006) (negligence per se still requires proximate cause and damages)
- McFarland v. Bruno Mach. Corp., 68 Ohio St.3d 305 (Ohio 1994) (policy and rationale behind exclusion of subsequent remedial measures under Evid.R. 407)