V.R., a minor, JENNIFER SANCHEZ, and RUBEN R., Plaintiffs-Appellants, vs. CINCINNATI-HAMILTON COUNTY COMMUNITY ACTION AGENCY, Defendant-Appellee, and JOHN DOE EMPLOYEE, and OHIO DEPARTMENT OF JOB AND FAMILY SERVICES, Defendants.
APPEAL NO. C-140230
TRIAL NO. A-1104516
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
November 14, 2014
2014-Ohio-5061
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 14, 2014
Law Offices of Blake R. Maislin, LLC, and Thomas J. Dall, Jr., for Plaintiffs-Appellants,
Reminger Co., LPA, Robert W. Hojnoski and Carrie M. Starts, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
{¶1} Plaintiffs-appellants Jennifer Sanchez, Ruben R., and their minor daughter, V.R., appeal the decision of the trial court granting summary judgment to defendant-appellee Cincinnati-Hamilton County Community Action Agency (“CAA“) stemming from an injury sustained by V.R. with a boxcutter that had been used in repairing Sanchez‘s apartment. Because we determine that the appellee owed no duty to V.R. with respect to her injury, we affirm the judgment of the trial court.
{¶2} Sanchez and her three children lived in a two-story townhome owned and operated by CAA. CAA is a nonprofit entity that provides housing to single mothers in financial need. Sanchez requested maintenance work for a small area on the wall behind the toilet in the upstairs bathroom that had moisture damage. Josh Hill, a maintenance employee for CAA, responded to Sanchez‘s request.
{¶3} Sanchez‘s longtime boyfriend and the father of her three children, Ruben, showed Hill the problem area in the bathroom. Ruben worked in various jobs in the construction industry, and his primary vocational skill was drywall work. Hill had come to Sanchez‘s home with a mudding knife and pan, but no other tools, and Ruben instructed Hill that the problem could not be fixed by applying mud over the drywall because the problem would reoccur. Ruben insisted that Hill needed to cut an area out of the wall. Hill tried to cut a portion of the wall with his mudding knife, but when that did not work, Ruben retrieved his boxcutter. Ruben then proceeded to talk Hill through the repair by telling him the correct way to cut the problem out to keep the moisture and mildew away. After Hill had cut out the area, Ruben then instructed Hill on how to apply mud.
{¶5} Sanchez, Ruben, and V.R., filed an action against CAA, alleging negligence per se and common-law negligence. In their negligence-per-se claim, appellants argued that CAA breached its duty under
{¶6} CAA deposed Ruben and Sanchez. Most of the underlying facts came from Ruben‘s deposition, because Sanchez had little first-hand knowledge of the events leading up to V.R.‘s injury. CAA then moved for summary judgment as to all of appellants’ claims. CAA argued that it owed no duty with respect to V.R.‘s injury, and that no statutory violation occurred to support a negligence-per-se claim.
{¶7} In two assignments of error, appellants argue that the trial court erred in granting summary judgment in favor of CAA.
{¶8} Summary judgment is appropriate when no genuine issues of material fact remain to be decided, the moving party is entitled to judgment as a matter of law, and it appears from the evidence that reasonable minds can come to but one conclusion, and with the evidence construed most strongly in favor of the nonmoving party, that conclusion is adverse to that party. See
{¶9} To establish a cause of action for negligence, a plaintiff must show (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, (3) the defendant‘s breach proximately caused the plaintiff‘s injury, and (4) damages. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 10. A duty may be established by common law, by legislative enactment, or by the particular facts and circumstances of the case. Chambers v. St. Mary‘s School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998).
{¶10} As a general matter, a property owner has no common-law duty to warn individuals lawfully on the premises against known or open and obvious
{¶11} In derogation of the common-law duties of landlords, the Ohio legislature created various obligations upon landlords in the Landlord-Tenant Act. See
{¶12} In response to CAA‘s summary-judgment motion, appellants argue that CAA breached its statutory duty to repair under the Landlord-Tenant Act.
{¶13} Appellants make no argument, nor point to any evidence in the record, demonstrating that the premises were unsafe or uninhabitable such that they were constructively evicted under
{¶14} As to the common-law negligence claim, the open-and-obvious doctrine bars the appellants’ claim that CAA breached a duty with regard to the boxcutter. The evidence in the record demonstrates that Ruben loaned Hill the boxcutter, and directed and observed Hill throughout the repair. Only when Hill finished using the boxcutter and nearly completed the repair did Ruben head downstairs.
{¶15} Although Ruben averred in his affidavit that Hill left Sanchez‘s home without notice, Ruben testified that he knew Hill was finished with the job and was not going to come back when he saw Hill exit from the townhome. Appellants cannot, “without sufficient explanation,” contradict deposition testimony in an affidavit to defeat summary judgment. See Byrd v. Smith, 110 Ohio St.3d 24, 2006-
{¶16} In conclusion, because appellants failed to establish that CAA owed them a duty, and failed to establish that CAA breached a duty under the Landlord-Tenant Act, CAA is entitled to judgment as a matter of law on appellants’ common-law negligence claim and negligence-per-se claim. We affirm the judgment of the trial court granting summary judgment to CAA.
Judgment affirmed.
CUNNINGHAM, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.