Mullins v. GroszMullins v. Grosz
Rendered on August 17, 2010
Malek & Malek, and James Malek, for appellant.
Alan E. Mazur, for appellee Mark Grosz.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Plaintiff-appellant, Charles Mullins (“appellant“), appeals from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motion of defendant-appellee, Mark Grosz (“appellee“). For the following reasons, we affirm the trial court‘s judgment.
{¶3} On December 31, 2008, appellant moved for an order granting default judgment against appellee. By decision filed January 23, 2009, the trial court granted appellant‘s motion as to liability and set the matter for a damages hearing before a magistrate. By agreed entry filed May 7, 2009, the default judgment was set aside and the case was returned to the active docket.
{¶4} Appellee filed a motion for summary judgment on October 13, 2009, supported by the deposition testimony of appellant. Appellant testified that he and his wife moved into the property in 1997. Appellant identified several photographs (Defendant‘s Exhibits A-H), which depict the house and the surrounding area. Those photographs show that the house is situated at the top of a rather steep hill. Entrance to the front of the house is via a large concrete front porch. Approximately 20 concrete steps lead from the street up the hill to a short expanse of concrete walkway, followed by a single concrete step leading to the front porch. To the right of the concrete steps that lead to the street is a metal handrail. The handrail stops where the walkway begins. To the right of the walkway are several concrete steps built into the adjacent hill that leads down to the driveway. There is no handrail or gating on the porch, the single step or the walkway.
{¶6} On the afternoon of October 16, 2006, appellant was removing several objects from the front porch. In so doing, he stood facing the front door with his back to the step, approximately one foot from the edge of the porch. He picked up an object (either rolled roofing or a large box) which required the use of both hands. When he turned to his left to step off the porch, he lost his balance when his left foot was “halfway” on the edge of the porch. (Deposition, 38.) After losing his balance, he fell off the porch and tumbled about halfway down the adjacent hill toward the driveway. Appellant testified that he lost consciousness after he lost his balance and does not remember anything more about the fall. As a result of the fall, appellant sustained a broken ankle that required surgical intervention and subsequent physical therapy.
{¶7} Appellant testified that from the time he moved into the house in 1997, he routinely entered and exited via the steps and walkway leading to the front porch. Appellant estimated that he entered or exited the house in this manner approximately six times a day since 1997 and had never fallen off the front porch or step area in front of the house.
{¶8} Appellant further testified that he always considered the area to be dangerous because there was no handrail or gate to prevent a person from falling down the adjacent hill. However, he conceded that he had never asked appellee to install a
{¶9} In his summary judgment motion, appellee first maintained that he owed appellant no duty to install a handrail or gating in the front porch/step/walkway area under either common-law negligence principles or under the duties imposed by
{¶10} Appellee also averred that appellant failed to produce evidence establishing a genuine issue of material fact as to proximate cause. Appellee maintained that appellant submitted no evidence establishing a causal connection between the lack of a handrail or gating and his falling off the front porch. In particular, appellee noted appellant‘s deposition testimony that the precarious placement of his foot on the edge of the porch caused him to lose his balance and fall. Appellee argued that the absence of a handrail or gating had nothing to do with the cause of the accident and that it was purely speculative as to whether a handrail or gating would have prevented appellant from falling down the hill or lessened the severity of his injuries.
{¶11} Appellant filed a memorandum contra on November 12, 2009, supported by the deposition testimony of appellee and appellant‘s affidavit testimony. Appellee testified that he purchased the house in 1981 and lived there from 1981 to 1985. Appellee
{¶12} Appellee confirmed that the handrail adjacent to the steps leading to the street does not extend all the way to the front porch. Appellee averred that the handrail stops where the walkway leading to the front porch begins, and estimated that distance to be approximately five or six feet. Appellee acknowledged that the walkway and the single step leading to the front porch had been unguarded since he purchased the property in 1981. (Deposition, 20.)
{¶13} Appellee agreed that the entire front of the property, due to the steepness of the hill, has always been “dangerous” to children (Deposition, 32, 44) and that one must be “extremely careful” when walking in that area. (Deposition, 32.) However, appellee testified that he had never been cited for violation of any city housing code pertaining to the front porch area, and no one other than appellant had ever claimed injury from falling down the hill.
{¶14} Appellee acknowledged that it was foreseeable that a person slipping on the front porch step could roll down the adjacent hill, and that extending the handrail along the walkway and step leading up to the front porch was feasible and might potentially make the property safer. He stated, however, that he never had any problem when he lived in the house and, as such, had never considered extending the handrail.
{¶15} In his affidavit, appellant averred, in pertinent part, that: the only practical way to get to the house is up the front steps to the front door (¶3); one must climb 20 cement steps and cross a six-foot section of walkway to get to the front porch (¶4);
{¶16} In his memorandum contra, appellant argued that appellee violated
{¶17} In his reply to appellant‘s memorandum contra, appellee argued that he owed no duty to install a railing in the porch/step/walkway area in order to protect appellant from the natural topography of the adjacent hill. Appellee contended that the absence of a railing was not a defect that rendered the premises unfit or uninhabitable as
{¶18} By decision and entry filed December 15, 2009, the trial court granted appellee‘s motion for summary judgment, finding that appellant failed to provide sufficient evidence to establish that appellee breached any statutory duty owed to him under either
{¶19} Appellant timely appeals, advancing a single assignment of error:
The trial court erred, on December 14, 2009, to the prejudice of Plaintiff-Appellant in granting Defendants-Appellees Motion for Summary Judgment.
{¶20} Appellant‘s single assignment of error asserts that the trial court erred in granting summary judgment in favor of appellee. An appellate court reviews a trial court‘s grant of summary judgment independently and without deference to the trial court‘s determination. Sadinsky v. EBCO Mfg. Co. (1999), 134 Ohio App.3d 54, 58. An
{¶21} Before summary judgment may be granted under Civ.R. 56(C), the trial court must determine that: “(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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.” State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 1994-Ohio-172, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
{¶22} To recover on a negligence claim, a plaintiff must establish that: (1) the defendant had a duty to protect the plaintiff from injury; (2) the defendant breached that duty; and (3) the defendant‘s breach proximately caused the plaintiff‘s injury. Chambers v. St. Mary‘s School, 82 Ohio St.3d 563, 565, 1998-Ohio-184. (Citations omitted.) “Typically, a duty may be established by common law, legislative enactment, or by the particular facts and circumstances of the case.” Id., citing Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, paragraph one of the syllabus.
{¶23} At common law, a landlord was charged with a general duty to exercise reasonable care to keep the premises retained in his control for the common use of his tenants in a reasonably safe condition. Shroades v. Rental Homes, Inc. (1981), 68 Ohio
A landlord who is a party to a rental agreement shall do all of the following:
(1) Comply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety;
(2) Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.
{¶24} A landlord‘s violation of the duties in
{¶25} Appellant claims that appellee‘s failure to install a handrail or gating in the porch/step/walkway area constitutes negligence per se because such failure violates the duties imposed upon appellee under both
{¶27} In Taylor v. Alexander (July 11, 1986), 11th Dist. No. 3550, the plaintiff, while visiting the tenant‘s apartment, lost his footing and fell down while descending the stairway leading from the tenant‘s apartment to the door. The plaintiff filed suit alleging that the defendant landlord had a duty to install a handrail in the stairway, pursuant to
[T]he foregoing statutory section would not apply to the present facts because appellant has not cited any applicable building, housing, health, or safety code that requires such a handrail within the interior of this apartment. In the absence of any evidence or submission demonstrating a violation of any other building, housing, health, or safety code, appellant‘s reliance on
R.C. 5321.04(A)(1) is misplaced.
{¶28} This court adopted the Taylor court‘s reasoning in McDaniels v. Petrosky (Feb. 5, 1998), 10th Dist. No. 97APE08-1027. In McDaniels, the tenants requested that the landlords remove a tree stump from the rental property. The landlords did not remove the tree stump, and the tenants’ child subsequently tripped on it and injured himself. The tenants alleged violations of
{¶29} In the instant case, appellant, in his response to appellee‘s motion for summary judgment, failed to assert any argument or provide any evidence that appellee breached any applicable building, housing, health or safety code. Only now, in his brief before this court, does appellant contend that appellee‘s failure to install a handrail constitutes a violation of Columbus Municipal Housing Code Section 4525.03. It is well settled that arguments not raised in the trial court should not be considered for the first time on appeal. State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections (1992), 65 Ohio St.3d 175, 177. Moreover, consistent with the reasoning in Taylor and McDaniels, we conclude that the trial court did not err in determining that appellant‘s claim under
{¶30} Appellant also maintains that the trial court erred in entering summary judgment with respect to
The plaintiff contends that the property was defective because it failed to provide any type of protection to prevent someone from falling down the adjacent hill. However, the plaintiff
occupied the premises for nine (9) years prior to accident without the presence of a hand railing, guard, or gate. * * * Furthermore, the plaintiff has failed to provide sufficient evidence indicating that the property is unfit or uninhabitable due to the lack of a railing. In fact, the property did not contain a railing at the time it was leased, and no agreement has been presented to this Court that the defendant agreed to install one. Moreover, the plaintiff admits he never requested that the defendant install a railing in the front area of the property. (Mullins deposition, p. 92). As such, this Court finds that the plaintiff has failed to provide evidence sufficient to demonstrate that there was a defect in the property such that the defendant can be held liable under
R.C. 5321.04(A)(2) .
(Dec. 15, 2009 Decision and Entry, 6.) (Emphasis sic, footnote omitted.)
{¶31} Appellant claims that the porch/step/walkway area of the premises was in a defective condition because the area had no handrail or gating to prevent a person from falling off the porch down the adjacent steep hill.
{¶32} In Taylor, the court addressed whether a landlord has a duty to install a handrail on a stairway pursuant to
{¶33} In Aldridge v. Englewood Village, Ltd. (July 22, 1987), 2d Dist. No. 10251, the tenant, when exiting her apartment, caught her toe on a threshold allegedly three-quarters of an inch too high. The tenant alleged that the threshold constituted a defect for purposes of
[I]n order to label this threshold a “defect” within
R.C. 5321.04(A) , such defect must render the premises unfit and uninhabitable. Fitness and habitability entails such defects as lack of water or heat, faulty wiring, or vermin infestation. Taylor v. Alexander (July 11, 198[6]), Trumbull App. No. 3550, unreported. The court found in Taylor that a defective handrail, or even the total absence of one, did not cause the premises to be unfit or uninhabitable. The same reasoning would apply to a threshold allegedly three-quarters of an inch too high. Even if we assume the threshold to have been improperly constructed, there is no “affirmative obligation to improve the rental premises by the addition of safety measures not present when the premises are initially leased.” Taylor, supra.The meaning and interpretation of the statutory phrase “fit and habitable” will not be liberally construed to include that which does not clearly fall within the import of the statute. LaCourse v. Fleitz (1986), 28 Ohio St.3d 209. Having not shown a defect rendering the premises unfit and uninhabitable, liability may not be predicated under
R.C. 5321.04(A)(2) .
{¶35} Appellant urges this court to apply the decision in Crawford v. Wolfe, 4th Dist. No. 01CA2811, 2002-Ohio-6163. We decline appellant‘s invitation, however, as the facts of Crawford are distinguishable. In Crawford, the house the tenants rented from the landlord was in need of repair. The sole usable access to the home had steps without a handrail. Although the landlords agreed to install a handrail both before, and shortly after, the tenants moved in, the landlords failed to follow through on their agreement. On an icy day, one of the tenants slipped and fell, breaking her wrist and spraining her ankle. The court determined that “the maintenance of the sole means of ingress to a rented residence certainly invokes the requirement that the landlord ‘do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.’ ” Id., citing
{¶36} Here, there was more than one usable access to the home. Further, in the nine years appellant lived in the house preceding the accident, appellant never requested nor did appellee ever agree to install a handrail in the porch/step/walkway area. In
{¶37} For the foregoing reasons, we conclude that summary judgment was appropriate in this matter, as appellee was entitled to judgment as a matter of law.1 Accordingly, appellant‘s sole assignment of error is overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
TYACK, P.J., and McGRATH, J., concur.