Mayhew v. Massey

• Decision Date: 10 March 2017
• Docket Number: NO. 16 MA 0049,16 MA 0049
• Citation: 2017 Ohio 1016,86 N.E.3d 758
• Parties: Stacy MAYHEW, Plaintiff–Appellant, v. Linda G. MASSEY, individually and as Trustee for Edward B. Massey Trust, Defendant–Appellee.
• Court: Ohio Court of Appeals

86 N.E.3d 758

2017 Ohio 1016

Stacy MAYHEW, Plaintiff–Appellant,

v.Linda G. MASSEY, individually and as Trustee for Edward B. Massey Trust, Defendant–Appellee.

NO. 16 MA 0049

Court of Appeals of Ohio, Seventh District, Mahoning County.

March 10, 2017

Atty. John Regginello, Boyd, Rummell, Carach, Curry, Kauffman, 26 Market Street, 4^th Street, P.O. Box 6565, Youngstown, Ohio 44501, for Plaintiff–Appellant.

Atty. Eric Williams, Atty. Erin Kelly, Pelini, Campbell & Williams, LLC, 8040 Cleveland Avenue, NW, Suite 400, North Canton, Ohio 44720, for Defendant–Appellee.

JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary DeGenaro

OPINION

ROBB, P.J.

{¶ 1} Plaintiff–Appellant Stacey Mayhew (hereinafter "the tenant") appeals the decision of the Mahoning County Common Pleas Court granting summary judgment in favor of Defendant–Appellee Linda Massey, Individually and as Trustee for Edward B. Massey Trust (hereinafter "the landlord"). As to her common law negligence claim, the tenant contends the open and obvious danger of descending the familiar stairs leading to her apartment in total darkness during a known power outage was accompanied by sufficient "attendant circumstances" to avoid summary judgment. This argument lacks merit.

Summary judgment was properly granted on her common law negligence claim due to the open and obvious doctrine.

{¶ 2} Next, the tenant correctly argues the open and obvious doctrine cannot be used to defeat a claim of negligence per se, which applies when there is a violation of a statutory duty such as that contained within R.C. 5321.04(A)(3). The issue becomes whether the lack of lighting over the stairs in the common area could be seen as a violation of the landlord's statutory duty to keep the common area safe. If there is a genuine issue of material fact as to whether a statutory duty was violated, the tenant asserts the defense of contributory negligence was improperly used to bar her claim. She states the doctrine of comparative negligence leaves a jury question as to whether her negligence was more than 50% of the cause of her injury. We conclude the landlord was entitled to summary judgment on this issue. In accordance, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶ 3} The tenant lived on Erskine Avenue in a four-unit apartment building owned by the trust and operated by the trustee. To reach her basement apartment, the tenant had to enter the apartment building's common area and descend four or five steps. There was overhead lighting above the stairs and a handrail. On May 2, 2013, the tenant called the landlord's agent to report a power outage. According to the recitation of facts presented by both parties, the City of Boardman had severed an electrical line while trimming trees.

{¶ 4} The next day, with the power still out, the tenant went to a meeting. She returned to the apartment building at approximately 10:00 p.m. On attempting to descend the stairs to her apartment in complete darkness, the tenant "missed a step," fell down the stairs, and suffered injuries. The tenant filed a complaint against the landlord asserting common law negligence and negligence per se under R.C. 5321.04(A)(1)–(4).

{¶ 5} The tenant testified at deposition to the conditions existing before she attempted to walk down the stairs: "You couldn't see anything. It was pitch black in there. * * * I couldn't see my hand in front of my face." (Depo. at 15–16). The tenant said she was familiar with the stairs and used them multiple times a day. She acknowledged she previously traversed the stairs in the dark during this power outage, "maybe once." (Depo. at 17).

{¶ 6} The landlord filed a motion for summary judgment arguing: (1) no duty was breached as the darkness was an open and obvious danger; (2) the tenant's intentional step into total darkness is contributory negligence as a matter of law, which precludes her recovery; (3) the tenant cannot transform a previously-encountered, insubstantial condition into a dangerous condition merely because of a subsequent fall, relying on Ohio Supreme Court cases Leighton and Raflo ; and (4) the landlord provided lighting over the stairs, but a one-time situation (over which the landlord had no control) caused a power outage.

{¶ 7} The tenant responded: (1) the open and obvious doctrine is not applicable to a negligence per se claim; (2) contributory negligence does not bar her recovery if her fault was not greater than 50%, which is a jury question; (3) the two Ohio Supreme Court cases are inapposite as they did not involve negligence per se or the duty of a landlord to a tenant; and (4) the cause of the outage is irrelevant as to whether the landlord must provide light over the stairs. In replying to the tenant's first response, the landlord asserted the open and obvious doctrine applies because there was no violation of R.C. 5321.04 and thus no negligence per se.

{¶ 8} On April 15, 2016, the trial court granted summary judgment for the landlord "on all of Plaintiff's claims." The court noted the plaintiff knew the electricity was out but failed to bring a flashlight to navigate the stairs of her building. The trial court divided its opinion into the four arguments set forth in the summary judgment motion and adopted each of those arguments: (1) the condition of darkness was open and obvious; (2) the tenant was contributorily negligent when she intentionally stepped into total darkness, and her unreasonable disregard of the darkness precludes her recovery; (3) the landlord was entitled to summary judgment as the tenant previously and successfully traversed the stairs in the dark, citing Leighton and Raflo ; and (4) the landlord provided overhead lighting and was not responsible for the power outage (as distinguished from a case where the property regularly suffered outages, which condition the landlord could have fixed). The tenant filed a timely notice of appeal from the entry of summary judgment.

SUMMARY JUDGMENT

{¶ 9} Summary judgment can be granted when there remains no genuine issue of material fact and when reasonable minds can only conclude the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). The movant has the initial burden to show that no genuine issue of material fact exists. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, citing Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). The non-moving party then has a reciprocal burden. Id. The non-movant's response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine issue for trial and may not rest upon mere allegations or denials in the pleadings. Civ.R. 56(E).

{¶ 10} In determining whether there exists a genuine issue of material fact to be resolved at trial, the court is to consider the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the non-movant. See, e.g., Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 11. Any doubts are to be resolved for the non-movant. Leibreich v. A.J. Refrig., Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993). A trial court "may not weigh the proof or choose among reasonable inferences." Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121, 413 N.E.2d 1187 (1980).

{¶ 11} Although courts are cautioned to construe the evidence in favor of the nonmoving party, summary judgment is not to be discouraged where a non-movant fails to respond with evidence supporting the essentials of his claim. Leibreich, 67 Ohio St.3d at 269, 617 N.E.2d 1068. Civ.R. 56 must be construed in a manner that balances the right of the non-movant to have a jury try claims that are adequately based in fact with the right of the movant to demonstrate, prior to trial, that the claims have no factual basis. Byrd, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47 at ¶ 11, citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

{¶ 12} We consider the propriety of granting summary judgment de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Under a de novo standard of review, we review the case independently and give no deference to the trial court's decision. See, e.g., Diley Ridge Med. Ctr. v. Fairfield Cty. Bd. of Revision, 141 Ohio St.3d 149, 2014-Ohio-5030, 22 N.E.3d 1072, ¶ 10 ; Hines v. State Farm Ins. Co., 146 Ohio App.3d 128, 131, 765 N.E.2d 414 (7th Dist.2001).

{¶ 13} In appealing the entry of summary judgment, the tenant sets forth three assignments of error: (1) attendant circumstances defused the open and obvious defense; (2) any contributory negligence must be determined by the jury; and (3) the open and obvious doctrine does not preclude a claim of negligence per se (and reasonable minds could differ as to whether there was a statutory violation). The first and third assignments correspond to the two claims set forth in the complaint, negligence and negligence per se, respectively. As the second assignment of error deals with the defense of contributory negligence, we address it last.

OPEN AND OBVIOUS DOCTRINE

{¶ 14} "The open and obvious doctrine remains viable in Ohio. Where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises." Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus. The rationale is that the owner or occupier of premises may reasonably expect the plaintiff to discover an open and obvious danger and take preventative measures to protect herself; the open and obvious nature of the hazard constitutes the warning to the plaintiff. Id. at ¶ 5.

{¶ 15} The parties agree the landlord cannot use the open and obvious doctrine to defeat a negligence per se claim. As will be explained further infra, negligence per se due to the violation of a statutory duty obviates the open and obvious doctrine. See Mann v. Northgate Investors, L.L.C., 138...