Hickory Grove Investors, Ltd. v. Jackson

• Decision Date: 09 December 2008
• Docket Number: No. 08AP-514.,08AP-514.
• Citation: 904 N.E.2d 546,180 Ohio App.3d 60,2008 Ohio 6428
• Parties: HICKORY GROVE INVESTORS, LTD., Appellee, v. JACKSON et al., Appellants.
• Court: Ohio Court of Appeals

904 N.E.2d 546

180 Ohio App.3d 60

2008-Ohio-6428

HICKORY GROVE INVESTORS, LTD., Appellee, v. JACKSON et al., Appellants.

No. 08AP-514.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided December 9, 2008.

Caborn & Butauski Co., L.P.A., and Joseph A. Butauski, Columbus, for appellee.

Eric E. Willison; and Benesch, Friedlander, Coplan & Aronoff, L.L.P., and James L. Ervin Jr., Columbus, for appellants.

KLATT, Judge.

{¶ 1} Defendants-appellants, Michael Jackson and Christina Deal, appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment to plaintiff-appellee, Hickory Grove Investors Limited. For the following reasons, we reverse and remand.

{¶ 2} In mid-December 2002, Jackson, Deal, and their family moved into an apartment owned by Hickory Grove. At that time, the Jackson-Deal family included the couple's two children and Deal's son, Daiqwon Deal.

{¶ 3} Sometime in July or August 2004, Hickory Grove constructed a six-foot-high steel fence along a portion of the apartment complex's perimeter. The fence created a barrier between the apartment complex and the back of the neighboring shopping center. Intent upon preserving its tenants' safety, Hickory Grove installed the fence to prevent people from passing through its property to go to and from the shopping center. The fence consisted of approximately 20 vertical pickets between each post, with one horizontal railing banding the bottom of the pickets and two horizontal railings banding the top of the pickets. Each picket rose above the top horizontal railing.

{¶ 4} On September 2, 2004, ten-year-old Daiqwon decided to climb the fence to reach the shopping center on the other side. Daiqwon ran to the fence, jumped up and grabbed the top of the fence, and then shimmied up the pickets. He pushed himself up and over the top railing, and put his right foot on a four-foot chain-link fence located on the shopping center side of the fence. While moving his left foot to the chain-link fence, Daiqwon slipped and impaled himself on Hickory Grove's fence. One of the pickets pierced the underside of Daiqwon's jaw and tongue before exiting through his mouth. Fortunately, a neighbor heard Daiqwon's calls for help and summoned his parents. Jackson held Daiqwon up while Deal called 911. Emergency responders cut the fence railings on either side of Daiqwon to remove him from the fence, and then they airlifted him to Children's Hospital. Doctors removed the picket from Daiqwon's jaw and tongue and successfully treated his injuries.

{¶ 5} On October 8, 2004, Hickory Grove commenced a forcible-entry-and-detainer action against Jackson in the Franklin County Municipal Court. The complaint alleged that Jackson had not paid his rent for October 2004, and it sought to recover the rental amount and other unpaid charges via a claim for breach of contract. On October 18, 2004, Hickory Grove voluntarily dismissed the forcible-entry-and-detainer action. After the dismissal, only the breach-of-contract claim remained pending against Jackson.

{¶ 6} For over a year, neither party took any action with regard to Hickory Grove's breach-of-contract claim. Then, on October 19, 2005, Jackson sought leave to file an answer and counterclaim. In the counterclaim, Jackson and Deal, on their own behalf and on behalf of Daiqwon, asserted claims for (1) retaliatory eviction in violation of R.C. 5321.02, (2) common-law negligence, (3) negligence per se based upon a violation of R.C. 5321.04, (4) violation of R.C. 5321.06 and failure to return Jackson's security deposit, (5) loss of consortium, (6) intentional infliction of emotional distress, and (7) negligent infliction of emotional distress. Defendants' second, third, fifth, sixth, and seventh claims all arose from Daiqwon's accident.

{¶ 7} The municipal court granted defendants leave to file the answer and counterclaim. Because defendants sought more than $15,000 in damages, the municipal court transferred the case to the Franklin County Court of Common Pleas. Defendants then filed an amended answer and counterclaim. Importantly, this pleading added an eighth claim for negligence per se based upon a violation of Columbus City Code ("C.C.C.") 4525.13.

{¶ 8} After conducting discovery, Hickory Grove filed a motion seeking summary judgment on defendants' claims for common-law negligence, negligence per se based upon a violation of R.C. 5321.04, loss of consortium, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence per se based upon a violation of C.C.C. 4525.13. On the same day, defendants filed a motion seeking summary judgment in their favor on three claims—the two claims for negligence per se and the claim that Hickory Grove evicted the Jackson-Deal family in violation of R.C. 5321.02.

{¶ 9} In relevant part, Hickory Grove argued that defendants could not present any evidence to prove that it violated C.C.C. 4525.13, and thus it contended that the trial court should grant summary judgment in its favor on defendants' negligence per-se-claim. C.C.C. 4525.13(b) states:

No person shall erect, construct or maintain any electric fence, barbed wire fence or a fence having wire or metal prongs or spikes within a residential district or on property which abuts residential property unless such fence is required to protect the public from hazardous equipment or from a club or commercial swimming pool.

Defendants asserted in their complaint that the fence had metal spikes, which meant that Hickory Grove's construction and maintenance of the fence violated C.C.C. 4525.13. Hickory Grove, however, presented affidavit testimony from Robert J. Beggs, the managing member of Hickory Grove, in which he stated that a Columbus code enforcement officer had inspected the fence and Hickory Grove did not receive any citation. Additionally, Beggs directed the trial court to the fence manufacturer's brochure, which stated that each picket top was "formed with a 3/8 [inch] diameter rounded tip rather than a sharp point."

{¶ 10} In their motion for summary judgment, defendants set forth evidence that they argued established Hickory Grove's liability for negligence per se based upon a violation of C.C.C. 4525.13. In their depositions, Deal and Daiqwon testified that the fence top consisted of spikes and that each picket came to a sharp point. Additionally, defendants asserted that the nature of Daiqwon's injury belied Hickory Grove's contention that the pickets were so rounded that they could not be spikes or prongs. Defendants also pointed out that the fence manufacturer's brochure described the fence as being topped by "picket spear[s]."

{¶ 11} After the parties completed the summary-judgment briefing, they attended a pretrial conference during which the trial court allegedly questioned why neither party had introduced evidence explaining the city of Columbus's position on whether the fence violated C.C.C. 4525.13. In response, Hickory Grove filed a "supplemental memorandum" to its motion for summary judgment and memorandum contra to defendants' motion for summary judgment. Hickory Grove attached to its supplemental memorandum the affidavit of Michael Farrenkopf, Code Enforcement Development Program Coordinator for the City of Columbus Department of Development. Farrenkopf inspected Hickory Grove's fence and testified as follows:

5) * * * I noted that the fence-top had metal attachments that upon first glance could appear to be spikes or prongs. I observed the fence tops, and also ran my hands along them, and quickly concluded they were in fact NOT spikes or prongs, but ornamental tops constructed of the same light-weight metal as the fence. In fact, the portion of the tops that may have appeared to be "pointed," were rounded so as not to be sharp.

6) I determined the fence was NOT in violation of CCC section 4525.13, and so advised the Code Enforcement Officer assigned the issue. Further I recommended the Code Enforcement Officer not issue a notice of violation to the responsible parties for anything related to this fence.

{¶ 12} Defendants responded to this additional evidence with a motion to strike. The trial court denied defendants' motion to strike and went on to grant summary judgment in Hickory Grove's favor based, in part, upon Farrenkopf's testimony.¹ The trial court found that defendants' "lay opinions" could not counter the weight of the evidence presented by Hickory Grove. On March 6, 2008, the trial court reduced its rulings on the summary-judgment motions to judgment and included in that judgment Civ.R. 54(B) language.

{¶ 13} Defendants now appeal from the March 6, 2008 judgment and assign the following errors:

[1] The Trial Court erred when it found no genuine issue of material fact on this issue of whether the fence upon which Defendant-Appellant Daiqwon Deal was injured had spikes or metal prongs.

[2] The Trial Court erred when it found that expert testimony was required to establish whether or not the fence upon which Defendant-Appellant Daiqwon Deal was injured had sharp tops or rounded tops.

[3] The Trial Court erred when it found when it denied [sic] Defendants-Appellants' Motion to Strike Affidavit of Farrenkopf and instead relied upon it when granting Plaintiff-Appellee Hickory Grove Investor Ltd.'s Motion for Summary Judgment.

{¶ 14} We will address defendants' third assignment of error first. By that assignment of error, defendants argue that the trial court erred in refusing to strike and in considering Farrenkopf's affidavit testimony. Although we do not believe that the trial court so erred, we conclude that even if the trial court's treatment of Farrenkopf's testimony constituted error, that error was harmless.

{¶ 15} Pursuant to Civ.R. 56(E), an affidavit must "set forth such facts as would be admissible in evidence" or it is subject to a motion to strike. An appellate court will not overturn a trial court's ruling on a...