Shumaker v. Park Lane Manor of AkronShumaker v. Park Lane Manor of Akron
Dated: March 9, 2011
Per Curiam.
INTRODUCTION
{¶1} As Debra Shumaker was walking through a half-inch of water that was flowing across a road at Park Lane Manor, she slipped and fell on ice that had formed beneath the water. She sued the apartment complex and the City of Akron, which had been hired to repair the broken private water main that was the source of the water. The trial court granted summary judgment to the City because it determined the City did not owe a duty to Ms. Shumaker and was entitled to political subdivision immunity. It granted summary judgment to Park Lane because it concluded that the condition was open and obvious. This Court affirms because Park Lane did not owe Ms. Shumaker the same duties as its tenants, the condition was open and obvious, and because the City has political subdivision immunity under
{¶2} According to Ms. Shumaker, her son lives in an apartment at Park Lane Manor with his wife and children. She visits them several times a week. On Friday, December 16, 2005, a water main broke near her son‘s building. The water rose to the surface, where it pooled on the lawn before overflowing onto the walkway to her son‘s unit and the road in front of the building. According to Park Lane‘s maintenance supervisor, the area of road that had water flowing across it was about 12 feet wide. He testified that the water flowed to a drain that was about 20 feet away.
{¶3} According to Ms. Shumaker, she first saw the water and learned about the water main break when she babysat for her grandchildren over the weekend. Although she could not remember which night she was at the apartment, she remembered staying overnight. During her weekend visit, she remembered walking through the water and learning that the City was going to repair the water main. She testified that, during her visit, there was yellow tape around the part of the lawn that had water on it as well as a couple of parking spaces that were a short distance from her son‘s building.
{¶4} The City‘s water distribution superintendent testified that the City had a history of repairing water main problems at Park Lane. He speculated that the relationship developed because of the number of low income and elderly residents who lived in the apartments. He said that the City would repair Park Lane‘s water lines at cost instead of making it hire a private contractor.
{¶5} According to the water distribution superintendent, Park Lane called his department about the water main break on Friday, December 16, 2005. He sent an employee to Park Lane that same day, who inspected the leak and agreed to do the repair. His department
{¶6} On Monday, December 19, 2005, Ms. Shumaker returned to her son‘s apartment. She drove down the road in front of his building, passing through the flowing water. As she drove down the road, she noticed a big yellow machine sitting in the couple of parking spaces that had had yellow tape around them. She parked at the end of the road and started walking back toward her son‘s building, carrying her purse. She considered walking behind the building to her son‘s back door, but decided against it because there was snow and ice on the grass that looked dangerous. As she walked up the road, she noticed a couple of men standing near the big yellow machine. She recognized one of them as Park Lane‘s maintenance supervisor and assumed the other was a city worker there to repair the water main.
{¶7} Ms. Shumaker testified that, as she approached the part of the road with the flowing water, she looked for the shallowest spot. She chose a spot that she estimated was only about a half-inch deep. As she walked, she “holler[ed]” a question to the maintenance supervisor about whether the water was still on at her son‘s apartment because she wondered whether she would be able to prepare a bottle for her grandson. The supervisor answered “[y]eah. But you have got about five minutes, so hurry up.” According to Ms. Shumaker, she walked past the walkway leading to her son‘s building and continued toward the supervisor. Just as she was beginning to ask him how long the water was going to be off, she slipped on a sheet of “black ice” that was “underneath the water” and fell, injuring her arm and shoulder.
{¶8} Ms. Shumaker sued Park Lane and the City, alleging negligence. Park Lane moved for summary judgment, arguing that it did not have a duty to warn her because the condition was open and obvious. The City moved for summary judgment, arguing that it had not
LANDLORD-TENANT RELATIONSHIP
{¶9} Ms. Shumaker‘s first assignment of error regarding Park Lane is that the trial court incorrectly determined that Park Lane did not owe her the same duties as it owed its tenants under
{¶10}
{¶12} Ms. Shumaker‘s argument fails because Shump is limited to injuries occurring “upon the leased premises.” Id. This Court has held that “a social guest, injured in an area not in the exclusive control of the tenant, is owed a duty of care by the landlord no higher than that owed to a licensee.” Rios v. Shauck, 9th Dist. No. 97CA006753, 1998 WL 289692 at *1 (June 3, 1998); see also Owens v. French Village Co., 9th Dist. No. 99CA0058, 2000 WL 1026690 at *5 (July 26, 2000). In Sanders v. Bellevue Manor Apartments, 9th Dist. No. 95CA006067, 1996 WL 1768 (Jan. 3, 1996), for example, this Court concluded that Shump had no effect on the duty that a landlord owed to the daughter of a tenant who fell in a parking lot that was under the landlord‘s control. Id. at *5. Similarly, in this case, there is no dispute that Ms. Shumaker fell on the one-lane road outside of her son‘s apartment building. Accordingly, because she did not slip and fall “upon the leased premises,” Park Lane did not have a duty to her under
OPEN AND OBVIOUS
{¶13} Ms. Shumaker‘s second assignment of error regarding Park Lane is that the trial court incorrectly concluded that it did not owe her a duty of care because the condition was “open and obvious.” She has not argued that questions of fact exist regarding whether the ice beneath the water was open and obvious. Her only argument is that the open and obvious
{¶14} As noted in the previous section of this opinion, in Robinson, the Ohio Supreme Court held that “[t]he ‘open and obvious’ doctrine does not dissolve the statutory duty to repair.” Id. at ¶25. Ms. Shumaker‘s argument fails because a landlord only owes a duty to repair under
POLITICAL SUBDIVISION IMMUNITY
{¶15} Ms. Shumaker‘s second assignment of error regarding the City is that the trial court incorrectly determined that the City was entitled to immunity under
{¶16} The dissent argues that, because the City argued it was acting as a private contractor,
{¶17} As previously noted, the starting point of the
{¶19} This Court has held that “the exceptions to immunity set forth in
{¶20} The City has argued that its decision to postpone the Park Lane repair until Monday was a discretionary allocation of its limited resources. It has noted that there were nine
{¶21} Ms. Shumaker has argued that the City was making a routine decision requiring little judgment or discretion, noting that the water distribution superintendent testified that it was a minor leak that was not an urgent matter. We disagree. It is evident from the superintendent‘s testimony that, although the City initially thought it could repair the leak on Saturday, there ended up being a number of other water main breaks that presented a more significant risk to City property. The water department, therefore, decided to allocate its limited resources to the more significant water main breaks first, postponing the Park Lane repair until Monday morning. The City‘s decision reflects a “positive exercise of judgment” in light of the dangers presented. Ms. Shumaker has not argued, let alone pointed to any evidence, that its decision was made in bad faith. Accordingly, the trial court correctly concluded that, even if the City was negligent, there is no genuine issue of material fact that its immunity was restored under
CONCLUSION
{¶22} The trial court correctly granted summary judgment to Park Lane and the City. The judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
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
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.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
CARR, P. J. WHITMORE, J. CONCUR
BAIRD, J. CONCURS IN PART, AND DISSENTS IN PART, SAYING:
{¶23} I agree with the majority‘s conclusions regarding Park Lane Manor. I dissent with respect to the City, however, because I believe that it does not have political subdivision immunity. Throughout this case, including the arguments made to this Court, the City has maintained that it was acting as a private contractor. Having characterized its activity as that of a private contractor, the City must accept whatever rights and responsibilities a private contractor
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to §6(C), Article IV, Constitution.)
APPEARANCES:
ROBERT W. HIGHAM, Attorney at Law, for Appellant.
JOYCE KIMBLER, Attorney at Law, for Appellee.
CHERI CUNNINGHAM, Director of Law, JOHN C. REECE, and JANET M. CIOTOLA, Assistant Directors of Law, for Appellee.