Jung v. DaviesJung v. Davies
OPINION
Rendered on the 11th day of March, 2011.
CARLO C. McGINNIS, Atty. Reg. #0019540, 130 West Second Street, Suite 800, Dayton, Ohio 45402
Attorney for Plaintiff-Appellants
JOYCE V. KIMBLER, Atty. Reg. #0033767, 50 South Main Street, Suite 502, Akron, Ohio 44308
Attorney for Defendant-Appellees
HALL, J.
{¶ 1} Patricia M. Jung appeals from the trial court’s entry of summary judgment in favor of appellees Vicki and Terry Davies on her negligence complaint against them related to her slip and fall at their residence.
{¶ 2} Jung advances four related assignments of error on appeal. In the first two
{¶ 3} Jung filed this premises-liability action after injuring herself while exiting the Davies’ home at 755 Woodbourne Trail in Washington Township. The incident occurred in the early evening hours of July 18, 2007 as Jung, a realtor, was locking the front door and placing a key in a lock box after showing the home to prospective buyers. In a deposition, Jung explained that she was facing the front door, somewhat bent over, with the storm door resting against her backside. She testified that she was standing on the highest of several steps just below the threshold to the front door when she fell. According to Jung, the storm door extended beyond where she was standing. Her fall occurred when she attempted to step backward to allow the storm door to pass in front of her and close. In her deposition testimony, Jung alleged that the step was “too narrow.” In a subsequent affidavit, she further explained her fall as follows:
{¶ 4} “* * * [A]t the time of my fall, I was required to encounter a narrow landing, without a handrail, all at the same time I was required to be in a backing out movement caused by efforts to process the lock box mechanism, as well as my efforts to clear and securely close the screen door, as was my habit, similar to my habit to check and insure the main door was locked. Further, it was at this exact same time that I was required to change direction while standing on the narrow step area, which caused me to lose my balance and fall off and down
{¶ 5} The record reflects that Jung had traversed the steps at issue twice before her fall. First, she had ascended them to preview the home shortly before the accident. On that occasion, she exited a different way. Jung also had ascended the steps on the day of the accident, arriving before the prospective buyers to open the home. The weather was good at the time of Jung’s fall, and it remained light outside.
{¶ 6} Jung filed her complaint on July 16, 2009, alleging negligence and negligence per se. The complaint included a derivative loss-of-consortium claim by her husband. The Davies moved for summary judgment in January 2010, alleging that the open-and-obvious doctrine barred Jung’s claims as a matter of law. After full briefing, the trial court sustained the motion in a fifteen-page decision, order, and entry filed on April 19, 2010. This timely appeal followed.
{¶ 7} We review the trial court’s summary judgment ruling de novo, which means “we apply the standards used by the trial court.” Brinkman v. Doughty (2000), 140 Ohio App.3d 494, 497. Summary judgment is appropriate when a trial court finds “(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.” Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66.
{¶ 8} In her first two assignments of error, Jung contends the trial court erred in finding that the Davies’ alleged violation of county and township codes did not constitute
{¶ 9} In proceedings below, the parties agreed that the entryway had been remodeled in 1998, prior to the Davies’ purchase of the home, when new brick steps were added. Therefore, Jung argued that the 1998 Montgomery County residential building code applied. Alternatively, she argued that the county’s 2006 building code applied because it was in effect when her fall occurred.1
{¶ 10} The trial court disagreed with Jung, finding that neither county code applied to the Davies’ home. In reaching its conclusion, the trial court noted that the 1998 regulations had been enacted pursuant to
{¶ 11} Montgomery County’s 2006 building code also had been enacted pursuant to
{¶ 12} After reviewing the foregoing provisions, the trial court held that Montgomery County’s 1998 residential building code did not apply to the brick entryway modification. In support, the trial court relied on
{¶ 13} The trial court next held that Montgomery County’s 2006 building code could not apply. It reasoned:
{¶ 14} “Going next to the version of
{¶ 15} The trial court then turned to Washington Township’s maintenance code. Washington Township enacted this code in July 2001 pursuant to
{¶ 16} The trial court recognized that the Washington Township code contains two potentially applicable provisions: Article 5.06(A)(3) requires stairways to have treads of uniform width and risers of uniform height; and Article 5.06(A)(4) allows an enforcement officer to require a handrail when its absence creates a hazardous condition. The trial court concluded that Article 5.06(A)(3) would not support a finding of negligence per se even if it had been violated. With regard to Article 5.06(A)(4), the trial court noted the absence of any involvement by an enforcement officer, thereby precluding the possibility of a violation.
{¶ 17} The trial court also considered the possibility that the Davies’ brick entryway may have violated certain administrative codes. Even if it did, however, the trial court recognized that negligence per se could not arise from an administrative code violation, as opposed to a legislative violation. See, e.g., Kooyman v. Staffco Constr., Inc., 189 Ohio App.3d 48, 57, 2010-Ohio-2268, ¶21-22.
{¶ 18} On appeal, Jung first challenges the trial court’s finding that neither of the Montgomery County building codes discussed above applies to the Davies’ residence. She
{¶ 19} First, we need not determine why the General Assembly worded
{¶ 20} A second answer to Jung’s inquiry is that the General Assembly simply may have wanted the regulations it authorized to apply only to homes built after the regulations’ effective date. This seems to be the plain import of
{¶ 21} Finally, we reject Jung’s argument that the language of the two building codes adopted by Montgomery County makes them applicable to the Davies’ brick entryway. Jung points out that the 1996 administrative building code, which Montgomery County legislatively adopted effective January 1, 1998, required alterations or repairs to an existing structure to comply with its terms. See Appellant’s Brief at 8. Although this is true, then-existing
{¶ 22} The General Assembly apparently recognized this problem. It amended
{¶ 24} First, Jung expressly denied in proceedings below that Montgomery County ever had “undertaken to adopt an Existing Structures Code under
{¶ 25} We turn now to the trial court’s analysis of Washington Township’s 2001 exterior property maintenance code. Pursuant to
{¶ 26} On appeal, Jung disputes only the trial court’s determination that a violation of Article 5.06, which governs exterior stairways, does not constitute negligence per se. Article 5.06(A)(3) requires all exterior stairways on residential premises to “have treads of uniform width and risers of uniform height.” Jung’s position is that the Davies’ brick entryway contained a stairway with non-uniform treads and risers. She contends this violation of Article 5.06(A)(3) is negligence per se.4 The issue is significant because a finding of negligence per
{¶ 27} This court recently addressed the interplay between a legislative violation and a finding of negligence per se in Kooyman, supra. It recognized that “[n]ot every violation of a provision of law or ordinance constitutes negligence per se.” Kooyman at ¶19. “Where, for the safety of others, a legislative enactment commands or prohibits the doing of a specific act, and there is a violation of such an enactment by one who has a duty to obey it, such a violation constitutes negligence per se. * * * Where, on the other hand, a legislative enactment for the safety of others sets forth a rule of conduct in general or abstract terms, liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case, and negligence per se has no application.” Id. (citation omitted). “In the absence of definite and specific requirements in a statute or ordinance that have been violated, the acts and conduct of the parties must be measured by the circumstances of each case.” Id. (citation omitted). “‘The distinction between negligence and
{¶ 28} In the present case, the trial court reasoned as follows regarding the applicability of negligence per se:
{¶ 29} “Turning next to Article 5.06(A)(3) application of negligence per se, assuming a violation of Article 5.06(A)(3), is not appropriate for three reasons. First, it is not clear that the ‘step’ involved in Mrs. Jung’s fall is regulated by the provision. Secondly, since the Maintenance Code is, as required by
{¶ 30} “Mrs. Jung asserts that the ‘step’ from which she fell is a landing, and, thus, subject to the landing requirements set forth by the 1996 OBOA, the RCO and other administrative provisions. If the location from which Mrs. Jung fell is a landing as opposed to a step, the Washington Township Maintenance Code is not applicable. This, in any event, creates a sufficient ambiguity, as will be discussed below, to make application of negligence
{¶ 31} “The rationale for negligence per se is that a legislative enactment, as opposed to an administrative rule, represents a policy decision arrived at through the democratic process. Administrative rules, on the other hand, ‘do not dictate public policy, but rather expound upon public policy already established * * *’ by the legislative process. Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563, 567, 697 N.E.2d 198.
{¶ 32} “The Washington Township Maintenance Code, given the requirements imposed by
{¶ 33} “It is, finally, noted that the violation of a legislative enactment triggers a negligence per se determination when the enactment sets forth a specific, detailed safety standard ‘that requires no intervention of human judgment or decision making in order to comply with it.’ Zimmerman v. St. Peter’s Catholic Church (1973), 87 Ohio App.3d 752, 762, 621 N.E.2d 1184. Article 5.06(A)(3) is not such a specific, detailed provision that application of negligence per se is appropriate for its violation. This is so because, as discussed, it is not clear what ‘steps’ are subject to the provision’s requirements. Secondly, simply indicating that risers shall be of uniform height and treads of uniform width is not sufficiently detailed to give rise to a negligence per se determination. A stairway could be constructed in technical
{¶ 34} Upon review, we diverge somewhat from the trial court’s analysis but, ultimately, reach the same conclusion. The trial court first found negligence per se inapplicable because of an ambiguity about whether Jung fell from a “step” or a “landing.” The precise issue before us is whether the portion of the entryway where she fell qualifies as a “stairway” under Article 5.06(A)(3) of the Washington Township Exterior Property Maintenance Code. Because we agree with the other reasons given by the trial court for why negligence per se is inapplicable, we decline to determine whether the three-tiered decorative brick entryway to the defendants’ home constitutes a “stairway,” and will analyze the application of the regulation to this case on other grounds.
{¶ 35} We believe that Article 5.06 of the Washington Township code is not sufficiently detailed to afford negligence per se analysis. The overall purpose of the provision is apparently to prevent a “safety hazard” (5.06 (A)(1)) and to avoid a “hazardous condition” (5.06(A)(4)). Specifically, section 5.06(A)(3) requires “treads of uniform width and risers of uniform height.” Whether the risers and treads are “uniform” involves judgment and interpretation. Whether lack of uniformity constitutes negligence involves even greater judgment and interpretation. Would a uniform course of four inch treads and four inch risers be a safety hazard? What about uniform 12 inch treads but also uniform 18 inch risers? Provisions that support negligence per se analysis should be specific and detailed without the intervention of human judgment or decision making. Zimmerman v. St. Peter‘s Catholic Church (1993), 87 Ohio App.3d 752. Moreover, regulations requiring expert testimony to prove a violation are too general to form the basis of negligence per se. Id., at 762. See also Poiry v. Schneider (March 31, 1987), Lucas App. No. L-86-294 (holding that an ordinance requiring stairs and steps to “have reasonably uniform risers and treads” did not have specific measurement requirements, defined the duties only in general terms and therefore prescribed a rule of conduct and not a specific duty making negligence per se inapplicable.)
{¶ 36} Because we determine that negligence per se analysis does not apply, we overrule Jung’s first and second assignments of error.
{¶ 37} In her third and fourth assignments of error, Jung claims the trial court erred in entering summary judgment against her based on the “open-and-obvious” doctrine, particularly when attendant circumstances exist. In particular, she asserts that the steps at issue did not present an open and obvious hazzard because she was required to back out of the house and then close the main door, operate a lock box, and maneuver around the storm door.
{¶ 38} When negligence per se is not applicable, “the acts and conduct of the parties must be measured by the circumstances of each case.” Kooyman, at ¶19. In such a case, “one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285. The status of a person who enters the land of another defines the scope of the legal duty owed to the entrant. Gladon v. Greater Cleveland Reg. Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137.
{¶ 39} Here the parties agree that Jung was a business invitee on the Davies’ property to show their home to a potential buyer. As it pertains to business invitees, an owner’s duty is
{¶ 40} When a danger is open and obvious, a property owner owes no duty of care to individuals lawfully on the premises. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 78, 2003-Ohio-2573, ¶14. To be open and obvious, a hazard must not be concealed and must be discoverable by ordinary inspection. Parsons v. Lawson Co. (1989), 57 Ohio App.3d 49, 50-51. The issue is not whether an individual observes a condition, but whether the condition is capable of being observed. Lydic v. Lowe‘s Cos., Inc., Franklin App. No. 01AP-1432, 2002-Ohio-5001, ¶10; Larrick v. J.B.T., Ltd., Montgomery App. No. 21692, 2007-Ohio-1509, ¶11.
{¶ 41} We have no trouble concluding that the trial court properly applied the open-and-obvious doctrine here. The record reflects that Jung had ascended the steps twice before her fall, giving her two chances to observe their configuration and to appreciate any danger. The weather was good on the day in question, and it remained light outside. Based on the photographs before us, we believe any danger Jung faced was so open and obvious that she should have been able to avoid it on her own.
{¶ 42} Jung’s argument about attendant circumstances fails to persuade us otherwise.
{¶ 43} We recognize that prior use is not always dispositive of a person’s awareness of a dangerous condition. Id. at ¶40. But we find nothing even remotely hidden about the configuration of the three steps leading up to the Davies’ door. Nor do we find any evidence of a latent defect. Even assuming, arguendo, that the brick entryway violated some administrative regulation with which it was required to comply, the condition of the steps, as they actually existed, was apparent to anyone using or observing them. Cf. Riehl v. Bird’s Nest, Inc., Ottawa App. No. OT-09-003, 2009-Ohio-6680, ¶47 (“Appellant‘s claims of liability * * * with respect to lack of a landing * * *, the varying heights of stair risers * * *, and lack of handrails * * * are subject to the open and obvious doctrine defense. It is undisputed that appellant had been up and down the stairs several times before she fell in daylight and that the view of the stairs was clear and unobstructed.”).
{¶ 44} Ultimately, the fact that Jung encountered the Davies’ steps the third time while standing backward and dealing with the doors and a lock box does nothing to diminish the determination that the condition was open and obvious, and she freely encountered it. The
{¶ 45} The judgment of the Montgomery County Common Pleas Court is affirmed.
DONOVAN and FROELICH, JJ, concur.
Copies mailed to:
Carlo C. McGinnis
Joyce V. Kimbler
Hon. Michael Tucker