Sivit v. Vill. Green of Beachwood, L.P.

• Decision Date: 17 January 2013
• Docket Number: No. 98401,98401
• Citation: 2013 Ohio 103
• Parties: CARLOS SIVIT, ET AL. PLAINTIFFS-APPELLEES v. VILLAGE GREEN OF BEACHWOOD, L.P., ET AL. DEFENDANTS-APPELLANTS
• Court: Ohio Court of Appeals

2013 Ohio 103

CARLOS SIVIT, ET AL. PLAINTIFFS-APPELLEES

v.VILLAGE GREEN OF BEACHWOOD, L.P., ET AL. DEFENDANTS-APPELLANTS

No. 98401

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

RELEASED AND JOURNALIZED: January 17, 2013

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

Civil Appeal from the

Cuyahoga County Court of Common Pleas

Case Nos. CV-671776, CV-674795, CV-701195,

CV-706333, and CV-707545

BEFORE: Blackmon, P.J., Celebrezze, J., and S. Gallagher, J.

ATTORNEYS FOR APPELLANTS

Marvin L. Karp

Lawrence D. Pollack

Ulmer & Berne LLP

ATTORNEYS FOR APPELLEES

For Carlos Sivit, et al.

Joseph W. Diemert, Jr.

Thomas M. Hanculak

Daniel A. Powell

Mark V. Guidetti

Joseph W. Diemert, Jr. & Associates Co., LPA.

For Allstate Insurance Co., et al.

James A. Marx

Shapero & Green, LLC

For Nationwide Mutual Insurance Co., et al.

Joseph A. Ferrante

For Safeco Insurance Co., of America, et al.

Jeffrey A. Kaleda

Markesbery & Richardson Co., LPA

For State Farm Fire & Casualty Co., et al.

Richard H. Blake

Robert James

Bricker & Eckler, LLP

PATRICIA ANN BLACKMON, P.J.:

{¶1} Appellants, Village Green of Beachwood, L.P. ("Village Green") and Forest City Residential Management, Inc. ("FCRM"), appeal the trial court's denial of their motion for directed verdict and assign 11 errors for our review.¹ Having reviewed the record and pertinent law, we affirm the trial court's decision. The apposite facts follow.

{¶2} In the early morning of October 23, 2007, a fire erupted and quickly engulfed Building 8 of the Verdant at Village Green apartment complex, located at 26800 Amhearst Circle in Beachwood, Ohio. After several hours, the Beachwood Fire Department, with mutual aid from surrounding communities, extinguished the fire. All the residents escaped unharmed, but there was considerable property damage, and Building 8 was ultimately demolished.

{¶3} Immediately following the fire, the Beachwood Fire and Police Departments, the State Fire Marshall's office, as well as professional fire investigators began investigating the cause of the fire. Collectively, they evaluated the scene, took photographs, and spoke to witnesses and residents to ascertain the cause of the fire.

{¶4} The occupants of Suite 310 indicated that they smelled a camp-like odor around 1:00 p.m. the day before and notified the maintenance department of the smell of smoke. Around 9:00 p.m., Beachwood fire and police responded to Suite 310, but could not locate the source of the odor. The occupant of Suite 210 indicated that she smelled a barbeque or campfire odor around 8:30 p.m. the night before the fire. The occupant ofSuite 110 indicated that her lights were flickering on and off around 10:30 p.m. the night before the fire and at approximately 11:15 p.m., she smelled the odor of burning tar. Most of the other residents of Building 8 reported unresolved electrical and maintenance issues with the building.

{¶5} As part of the investigation, the Beachwood Fire Department retained Ralph Dolence ("Dolence"), a fire investigator and electrical expert, to assist in their investigation. Dolence, who had previously been retained to investigate a fire in 2004 that destroyed Building 3 of the same apartment complex, ruled out arson or accelerants as causes of the fire, which was supported by the other investigators.

{¶6} Following his investigation, Dolence determined that the fire originated in the interstitial space between the floor and ceiling space of Units 210 and 310, and that there was no fire internally in Units 110, 210, and 310. Dolence concluded that the fire was caused by faulty electrical wiring contaminated by water leaks within the building. Dolence's conclusion was in keeping with that of the Beachwood Fire Department.

{¶7} On September 26, 2008, Carlos Sivit ("Sivit"), along with ten other residents who lost most of their personal belongings and were displaced when Building 8 was demolished, filed a complaint against several entities including Village Green and FCRM, the managers of the developers and owners of the apartment complex, alleging that negligence or gross negligent construction and maintenance of the building caused the fire.

{¶8} Sivit also brought a cause of action for breach of lease alleging that Village Green had failed to maintain Building 8 and the mechanical devices therein in a clean, safe, and working condition. Sivit further alleged that throughout the course of the lease, Village Green and FCRM failed to perform building repairs within a reasonable time that were of an emergency in nature, including electrical faults and other fire hazards.

{¶9} On December 16, 2011, after a two-week trial, the jury rendered a verdict in favor of Sivit and awarded compensatory damages of $582,328. The jury also awarded punitive damages in the amount of $2,000,000. In addition, the trial court awarded attorney fees in the amount of $1,040,000 to Sivit's attorneys. Village Green and FCRM now appeal.

Directed Verdict, Negligent Maintenance, andNegligent Construction

{¶10} We will address assigned errors 1 and 5 together because they both contend the trial court erred when it denied the motion for directed verdict on Sivit's claims of negligent maintenance and construction.

{¶11} The standard of appellate review on a motion for directed verdict is de novo. Loreta v. Allstate Ins. Co., 8th Dist. No. 97921, 2012-Ohio-3375, citing Grau v. Kleinschmidt, 31 Ohio St.3d 84, 90, 509 N.E.2d 399 (1987). This court is to construe the evidence presented most strongly in favor of the nonmoving party and, after so doing, determine whether reasonable minds could only reach a conclusion that is against the nonmoving party. Titanium Indus. v. S.E.A. Inc., 118 Ohio App.3d 39, 691 N.E.2d 1087(7th Dist.1997), citing Byrley v. Nationwide Ins. Co., 94 Ohio App.3d 1, 640 N.E.2d 187 (6th Dist.1993), appeal not accepted, 70 Ohio St.3d 1441, 638 N.E.2d 1044 (1994).

{¶12} An appellate court does not weigh the evidence or test the credibility of the witnesses. Id. In considering the motion, this court assumes the truth of the evidence supporting the facts essential to the claim of the party against whom the motion is directed, and gives to that party the benefit of all reasonable inferences from that evidence. Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 206, 560 N.E.2d 165 (1990), citing Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 68, 430 N.E.2d 935 (1982).

{¶13} To prevail in a negligence action, the plaintiff must show (1) the existence of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach. Mann v. Northgate Investors L.L.C., 10th Dist. No. 11AP-684, 2012-Ohio-2871, citing Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 21. 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. Mullins v. Grosz, 10th Dist. No. 10AP-23, 2010-Ohio-3844, ¶ 23.

{¶14} In 1974, the Ohio General Assembly modified the common law regarding landlords and tenants when it "enacted R.C. 5321.01 et seq., the Landlord-Tenant Act, in an attempt to clarify and broaden tenants' rights as derived from common law." Mullins at ¶ 23.

{¶15} In Shroades v. Rental Homes, Inc., 68 Ohio St.2d 20, 427 N.E.2d 774 (1981), the Supreme Court of Ohio held that a landlord is liable for injuries sustained onleased premises that are proximately caused by the landlord's failure to fulfill the duties imposed by R.C. 5321.04(A), which provides, in pertinent part:

(A) 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;

* * *

(4) Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, and air conditioning fixtures and appliances, and elevators, supplied or required to be supplied by him[.]

{¶16} A landlord's violation of the duties imposed by Ohio's Landlord-Tenant Act constitutes negligence per se. Allstate Ins. Co. v. Henry, 12th Dist. No. CA2006-07-168, 2007-Ohio-2556, ¶ 9, citing Sikora v. Wenzel, 88 Ohio St.3d 493, 2000-Ohio-406, 727 N.E.2d 1277, syllabus. With negligence per se, proof of a landlord's violation of the statute dispenses with the plaintiff's burden to establish the existence of a duty and the breach of that duty. Henry at ¶10; Chambers v. St. Mary's School, 82 Ohio St.3d at 563.

{¶17} However, negligence per se does not equate to liability per se, as it does not dispense with the plaintiff's obligation to prove the landlord's breach was the proximate cause of the injury complained of, nor does it obviate the plaintiff's obligation to prove the landlord received actual or constructive notice of the condition causing the statutory violation. Packman v. Barton, 12th Dist. No. CA2009-03-009, 2009-Ohio-5282, citingTurner v. Tiemeyer, 12th Dist. No. CA95-08-053, 1996 Ohio App. LEXIS 428, *3 (Feb. 12, 1996); Henry at ¶ 11. In turn, landlords will be excused from liability where they "neither knew nor should have known of the factual circumstances that caused the violation." Mounts v. Ravotti, 7th Dist. No. 07 MA 182, 2008-Ohio-5045, ¶ 30, quoting Sikora, 88 Ohio St.3d at 498.

{¶18} In the instant case, the record reveals that Village Green and FCRM's collective violation of the duties imposed by Ohio's Landlord-Tenant Act proximately caused the fire. As it relates to the claim of negligent maintenance, numerous tenants gave statements regarding various maintenance issues with Building 8 to the on-scene investigators at the time of the fire. Several of these tenants testified at trial, but in the interest of brevity, the recurrent element can be summed up in the testimony of Detective Don...