Webster v. Shaw

• Decision Date: 11 April 2016
• Docket Number: No. 16–15–08.,16–15–08.
• Citation: 63 N.E.3d 677
• Parties: Shailyn WEBSTER, et al., Plaintiffs–Appellants, v. Robert D. SHAW, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

63 N.E.3d 677

Shailyn WEBSTER, et al., Plaintiffs–Appellants,

v.Robert D. SHAW, et al., Defendants–Appellees.

No. 16–15–08.

Court of Appeals of Ohio, Third District, Wyandot County.

April 11, 2016.

Ronald A. Annotico, Rocky River, for Appellant.

J. Alan Smith, Lima, for Appellee.

OPINION

WILLAMOWSKI, J.

{¶ 1} Plaintiffs-appellants, Stacy Webster (“Stacy”), and her two minor children, (collectively “Plaintiffs”), bring this appeal from the judgment of the Common Pleas Court of Wyandot County, Ohio, granting a motion for summary judgment in favor of Defendants-appellees, Robert Shaw (“Robert”) and Diane Shaw (“Diane”) (collectively “the Shaws”). For the reasons that follow, we reverse the trial court's judgment.

Factual and Procedural Background

{¶ 2} In May 2009, Stacy and her husband, William Webster (“William”), rented a residential property from the Shaws. The property was an older home, from the early 1900s, which was partially renovated by the Shaws. The Shaws did not provide the Websters with federally-mandated lead information or disclosures with respect to the rental property. After about a month, Stacy's two minor children were diagnosed with high lead levels. An inspection of the rental residence, conducted by the Ohio Department of Health in July 2009, revealed that the premises contained lead-based paint. Stacy and her family vacated the residence in October 2009.

{¶ 3} On December 18, 2013, Stacy and her minor children filed a complaint against the Shaws alleging seven causes of action, including (I) negligence, (II) negligence per se based on violation of state and federal statutes, (III) breach of implied warranty of habitability, (IV) nuisance, (V) breach of express warranty, (VI) violation of 42 U.S.C. 4852d, and (VII) loss of consortium. (R. at 1.) The Shaws denied the allegations. (R. at 7.) The Shaws also made certain specific denials in their responses to Plaintiffs' First Set of Requests for Admissions. (R. at 8.) Among others, the Shaws denied any awareness that lead paint may be dangerous to humans or that lead paint was used in homes constructed prior to 1978. (Id. )

{¶ 4} The parties engaged in discovery, which included taking depositions of Stacy, William, Diane and Robert. Thereafter, Plaintiffs moved for a partial summary judgment on the issue of liability only as to counts two (negligence per se) and six (violation of 42 U.S.C. 4852d ). (See R. at 18.) The Shaws opposed summary judgment and filed a cross motion for summary judgment in their favor on all causes of action. (R. at 28.) The parties engaged in additional briefing and jointly requested an extension of the discovery deadline. (See R. at 33.) The trial court denied the request and instead proceeded to rule on the parties' motions for summary judgment. The trial court overruled Plaintiffs' partial motion for summary judgment and granted the Shaws' motion for summary judgment, dismissing the complaint.

{¶ 5} The trial court rejected the negligence, negligence per se, and nuisance claims (counts one, two, and four), on the theory that the Shaws were absolved from liability due to a lack of notice that a lead hazard was present on the premises. With respect to count six, and “any claim in the Complaint” brought under 42 U.S.C. 4852d, the trial court determined that the minor plaintiffs lacked standing to bring a suit over violation of the federal statute because they “were neither lessees nor purchasers of the rental property,” and Stacy “appears to claim no injury other than that which may be derived from lead being discovered in her children's systems.” (R. at 40, at 4–5.) The trial court did not expressly address count three—breach of the implied warranty of habitability, count five—breach of express warranty, or count seven—loss of consortium. These counts, or the trial court's failure to expressly address them, are not the subject of the assignments of error or the issues before us. Plaintiffs raise one assignment of error, as quoted below.

Assignment of Error

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS/APPELLEES

Standard of Review

{¶ 6} Under Civ.R. 56,

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

Civ.R. 56(C) ; Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, ¶ 13, quoting Civ.R. 56(C).

{¶ 7} The party moving for summary judgment has the initial burden “to inform the trial court of the basis for the motion, identifying the portions of the record, including the pleadings and discovery, which demonstrate the absence of a genuine issue of material fact.” Reinbolt v. Gloor, 146 Ohio App.3d 661, 767 N.E.2d 1197, ¶ 8 (3d Dist.2001) ; accord Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 12. The burden then shifts to the party opposing summary judgment. Id. In order to defeat summary judgment, the nonmoving party may not rely on mere denials but “must set forth specific facts showing that there is a genuine issue for trial.” Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, quoting Civ.R. 56(E).

{¶ 8} “[B]ecause summary judgment is a procedural device to terminate litigation, it must be awarded with caution.” Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358–359, 604 N.E.2d 138 (1992). The court must thus construe all evidence and resolve all doubts in favor of the non-moving party, here Plaintiffs. Id. But if the evidence so construed fails to support the essentials of their claims, summary judgment is proper. Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993). An appellate court reviews de novo a trial court's decision on a motion for summary judgment. Esber Beverage Co. v. Labatt USA Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9.

Analysis

{¶ 9} Challenging the trial court's ruling on appeal, Plaintiffs focus on the theory of negligence per se and make no contentions with respect to the common law negligence claim, as asserted in count one of the complaint, or with respect to the remaining counts of the complaint. Indeed, the claim for violation of 42 U.S.C. 4852d, originally presented in count six of the complaint, is not argued separately on appeal. Instead, Plaintiffs allege that violation of this federal statute constitutes negligence per se.¹

{¶ 10} “The concept of negligence per se allows the plaintiff to prove the first two prongs of the negligence test, duty and breach of duty, by merely showing that the defendant committed or omitted a specific act prohibited or required by statute.” Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 15, citing Chambers v. St. Mary's School, 82 Ohio St.3d 563, 565–566, 697 N.E.2d 198 (1998). But the plaintiff in a negligence per se action still has to prove proximate cause and damages. Sikora v. Wenzel, 88 Ohio St.3d 493, 496, 727 N.E.2d 1277 (2000). Additionally, “a negligence-per-se violation will not preclude defenses and excuses, unless the statute clearly contemplates such a result.” Robinson v. Bates,

112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 23.

{¶ 11} Here, Plaintiffs' negligence-per-se claims are based on R.C. 5321.04. This statute lists ten obligations of a landlord who is a party to a rental agreement. Among others, and as singled out by Plaintiffs on appeal, the statute requires that the landlord:

(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.

(App't Br. at 12, quoting R.C. 5321.04.) Plaintiffs claim that the presence of lead on the premises rendered the property “unfit or in an uninhabitable condition,” in violation of R.C. 5321.04(A)(2). (App't Br. at 12.) They further assert that the Shaws violated R.C. 5321.04(A)(1) by not complying with the federal statute concerning lead disclosures, 42 U.S.C. 4852d.

{¶ 12} The Ohio Supreme Court has recognized that “[a] landlord's violation of the duties imposed by R.C. 5321.04(A)(1) or 5321.04(A)(2) constitutes negligence per se, but a landlord will be excused from liability under either section if he neither knew nor should have known of the factual circumstances that caused the violation.” Sikora at syllabus. The issue reviewed by the trial court and raised on appeal is whether the Shaws knew or should have known of the factual circumstances that rendered the rental property at issue unfit or uninhabitable. More specifically, did the Shaws know or should they have known that lead-based paint was present on the premises. See Trammell v. McDonald, 3d Dist. Defiance No. 4–04–15, 2004-Ohio-4805, 2004 WL 2026414, ¶ 14 (holding that under subsection (A)(2) of R.C. 5321.04, “[a] tenant must show that the landlord had actual or constructive knowledge of the actual defect in order for liability to attach under this subsection”); Rice v. Reid, 3d Dist. Crawford No. 3–91–34, 1992 WL 81424, *1 (Apr. 23, 1992) (“Notice to the landlord that a problem exists is necessary before liability can be imposed on a landlord, pursuant to R.C. 5321.04.”); id. at *3 (“it would be unfair...