{¶ 3} On April 27, 2005, the trial court granted Appellees' motions for summary judgment. The trial court granted summary judgment on Burth's negligence claim for three reasons: 1) Burth did not show that any of the Appellees had the requisite control or possession of the premises; 2) he did not introduce evidence showing the cause of the fall; and 3) he did not establish knowledge, constructive or otherwise, on the part of any of the Appellees. The trial court found that Burth's negligence per se claim failed for the same reasons that his negligence claim failed.
{¶ 4} Burth has timely appealed the trial court's decision, asserting one assignment of error.
{¶ 5} In his sole assignment of error, Burth has argued that the trial court erred in granting summary judgment in favor of Appellees. Specifically, Burth has argued that Appellees owed him a duty of care and they knew or should have known of the defect in the ladder system. Burth has also argued that ownership of the ladder is irrelevant. We disagree.
{¶ 6} An appellate court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996),
"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),
{¶ 7} The party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying portions of the record that demonstrate an absence of a genuine issue of material fact as to some essential element of the non-moving party's claim. Dresher v. Burt
(1996),
{¶ 8} Once the moving party's burden has been satisfied, the non-moving party must meet its burden as set forth in Civ.R. 56(E). Id. at 293. The non-moving party may not rest upon the mere allegations and denials in the pleadings, but instead must point to or submit some evidentiary material to demonstrate a genuine dispute over the material facts. Id. See, also, Henklev. Henkle (1991),
{¶ 9} Pursuant to Civ.R. 56(C):
"Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
{¶ 10} In his complaint against Appellees, Burth asserted two causes of action: 1) negligence and 2) negligence per se.
Negligence
{¶ 11} "In order to recover on a negligence claim, a plaintiff must prove (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, and (3) that the breach of the duty proximately caused the plaintiff's injury."Chambers v. St. Mary's School (1998),
{¶ 12} Burth has argued his negligence claim under the "invitee" standard. An owner or occupier of land or premises owes a duty to an invitee to use reasonable care to protect that invitee from unreasonable harm or dangers of which the occupier is aware or reasonably should be aware. Jackson v. Kings Island
(1979),
{¶ 13} After reviewing the record and the general duty element of negligence and the invitee duty standard, we find that Appellees owed no duty to Burth. The record is void of a foreseeable injury. The deposition testimony clearly establishes that Appellees were not aware, nor should they have been, that use of the ladder would result in harm to Burth. By all accounts, the ladder had been used by numerous people at the home and no other incidents occurred. In fact, an Imperial employee, Myron Feightner, descended the ladder immediately before Burth and experienced no problems with the ladder. He testified that if the ladder was not safe, he would not have used it, and that he did not know what caused Burth to fall. Burth provided no evidence to substantiate his claim that Appellees knew of the unsafe condition of the ladder or should have known of it. Moreover, Burth failed to identify any problems with the ladder or use of the ladder. Burth argued that a bungee cord attached to the top of the ladder must have come loose, but he failed to present evidence that the bungee cord came loose or that it was not attached after his fall. Therefore, it follows that Appellees could not possibly know of a problem that Burth cannot even identify.
{¶ 14} Burth's argument under the invitee standard also fails. No evidence was presented concerning ownership of the ladder; Appellees denied ownership and Burth admitted that he did not know who owned the ladder. Appellees also denied placing the ladder in the hole into which Burth descended and Burth admitted that he did not know who placed the ladder in the hole. Assuming arguendo that Burth was able to establish ownership or that as he has argued, ownership is irrelevant, Burth's invitee argument still fails. As previously discussed, no evidence was presented that Appellees had superior knowledge of a risk to Burth or that they should have had such knowledge. In fact, no evidence of any risk was presented.
{¶ 15} Burth has also failed to present evidence to survive summary judgment on the causation element of negligence. Burth's negligence claim must fail because he has no knowledge of what caused his fall. See Stamper v. Middletown Hospital Assoc.
(1989),
{¶ 16} Based on the foregoing and viewing the evidence in a light most favorable to Burth, the non-moving party, we find that no genuine issues of material fact remain, that Appellees were entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, which is adverse to Burth. Summary judgment was warranted on Burth's negligence claim because Appellees' owed no duty to him. Appellees established that they had no knowledge of any alleged problems with the ladder or its use and that there was no reason they should have known of the alleged problem or use. Burth failed to contradict Appellees' testimony. Moreover, Burth was unable to provide a reason or explanation as to the cause of his fall. Burth's sole assignment of error regarding his negligence claim lacks merit.
Negligence Per Se
{¶ 17} Negligence per se is a violation of a specific requirement of law or ordinance. Chambers, supra (Quotation omitted.). Application of negligence per se in the instant matter requires that Burth conclusively establish that the Appellees breached the duty that they owed to him. See Chambers, supra. It is not, however, a finding of liability per se because Burth must also prove proximate cause and damages. Pond v. Leslein
(1995),
"Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters."
{¶ 18} The Ohio Supreme Court has stated that the statutory duty owed to "frequenters" is merely the codification of the common-law duty which property owners have traditionally owed to business invitees. Eicher v. United States Steel Corp. (1987),
{¶ 19} For the same reasons Appellees were entitled to summary judgment on Burth's negligence claim, we find that they are also entitled to summary judgment on his negligence per se claim. The record establishes that reasonable minds can reach only one conclusion, which is that reasonable care was exercised and that Appellees had no knowledge of any alleged defects in the ladder. Moreover, Burth has failed to present evidence of any defects in the ladder or that the ladder was the cause of his fall.
{¶ 20} Burth's reliance on the exception to the frequenter statute lacks merit. We find that the exception does not apply for the following reasons: 1) per his own admission, Burth was not an independent contractor or an employee of one; 2) the record is void of any knowledge on Appellees' part of any problems with the ladder; 3) the record is void of any evidence that Appellees should have known of any problems; 4) no evidence was presented that there actually was a problem with the ladder; 5) no evidence was presented as to the cause of Burth's fall; and 6) Burth did not identify the condition of which he was unaware under the frequenter statute.
{¶ 21} Based on the foregoing, we find that, like his negligence claim, Burth's negligence per se claim cannot survive summary judgment. Reasonable minds can only come to one conclusion, which is that 1) no one knows who owned the ladder; 2) no one knows who placed the ladder in the hole; 3) Appellees had no knowledge of any problems with the ladder, nor should they have; 4) no one knows why or how Burth fell off the ladder; and 5) no one knows if there was in fact a defect with the ladder. Accordingly, Appellees were entitled to summary judgment because no genuine issues of material fact exist. Burth's sole assignment of error regarding his negligence per se claim is not well taken.
{¶ 22} Burth's sole assignment of error as a whole lacks merit.
Judgement affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Exceptions.
Moore, J. Reece, J., Concur.
(Reece, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.)