Odom v. Davis

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[Cite as Odom v. Davis, 2003-Ohio-3316.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY Laura Odom, et al., Plaintiffs-Appellants, vs. Ralph Davis, et al., Defendant-Appellee. : : : : Case No. 02CA43 : : DECISION AND JUDGMENT ENTRY : : RELEASED: 6-20-03 : APPEARANCES Daniel N. Abraham, Columbus, Ohio, for appellants. James D. Sillery, Athens, Ohio, for appellee. Kline, J.: {¶1} of her Laura Odom, personally and as the natural guardian daughter, Sarah Odom, appeals the Athens County Court of Common Pleas decision granting summary judgment to Ralph Davis, dba Davis Rentals. The Odoms assert that the trial court erred because genuine issues of material fact exist. in the Because we find, after reviewing the evidence Odoms favor, that reasonable minds could only conclude that they do not possess a claim against Davis, we disagree. court. Accordingly, we affirm the judgment of the trial I. Davis started a rental business in the 1960s. {¶2} In 1968, Davis purchased a single-family residence located at 327 Elizabeth Street in Nelsonville, Ohio. The bathtub/shower in the home had glass shower doors. {¶3} Laura and her daughter Sarah, age one year nine months, resided at 327 Elizabeth Street on June 27, 2000. That day, Laura entered the bathtub with Sarah in her arms and bathed Sarah. As Laura tried to open the sliding glass door, the glass in the door shattered. shield Sarah from the glass, severely in several places. but the Laura was able to glass cut Laura The incident terrified Sarah, and she suffered from a fear of glass and nightmares as a result. {¶4} Davis,1 In January 2001, the Odoms filed a complaint against seeking compensation from Davis for injuries to Laura and for loss of consortium and negligent infliction of emotional distress upon Sarah. Specifically, the Odoms alleged that Davis was negligent in that he breached his common law duty to make reasonable inspections and discover hazardous conditions, and that Davis was negligent per se based upon a violation of R.C. 5321.04, because the shower door was not made of safety glass. 1 The Odoms also named three John Doe defendants, but never served these defendants. After the parties completed discovery, Davis filed a {¶5} motion for summary judgment. summary judgment, deposition. Davis In support of his motion for filed an affidavit and his Davis contended that he did not know that the shower door was made of plate glass or that it was unsafe. Davis had never performed any repairs on never noticed anything unusual about it. the door, and Although Davis owned between fifty and sixty residential properties over the course of his approximately forty years in business, 327 Elizabeth Street was his only property with a glass shower door. {¶6} Davis also supported his motion with the affidavit of Keith Andrews, a former HUD inspector. Andrews averred that HUD inspected the residence at 327 Elizabeth Street on eight occasions between 1986 and 1993, and that none of the eight inspections revealed any dangerous condition in the glass shower door. {¶7} Davis also relied upon the deposition testimony of the Odoms expert, Robert Carbonara, Ph.D. Dr. Carbonara testified that the glass shower door that injured Laura was not safety glass. He based his determination on the manner in which the glass broke. Carbonara also testified that every pane of safety glass is required to be marked as such, usually with a quarter-sized etching in the corner of each pane of glass. However, Carbonara admitted that to actually determine whether glass is safety glass, one must perform a destructive test, i.e., break the glass. Additionally, Dr. Carbonara agreed that, although the Ohio Basic Building Code ( OBBC ) requires safety glass in shower doors, the OBBC does not apply to single-family, two-family, and three-family dwellings. In {¶8} their memorandum opposing Davis motion for summary judgment, the Odoms asserted that Davis contention that he had no knowledge that the material in the shower door was actually glass, absurd. They cited particularly his much Davis testimony that less plate testimony he has glass, in forty is support, years of experience in the rental business and owns two commercial properties. The Odoms noted that commercial properties are subject to the OBBC, and thus concluded that Davis was at least aware of the OBBC requirements for shower doors on those properties. reasons why bathroom, plate such as Additionally, the Odoms listed logical glass is varying a particular temperatures, danger humidity in a levels, and the occupant s lack of protection from clothing. Davis {¶9} filed a reply memorandum and attached an affidavit averring that the commercial properties he owns are a parking lot and a warehouse, which do not have running noted water, that much the less Odoms showers. failed to Additionally, identify any Davis evidence demonstrating that safety glass is required in residential shower doors. Davis pointed out that the only evidence in the record on the issue was Dr. Carbonara s testimony that the OBBC does not require safety glass in single-family homes. The trial court granted summary judgment to Davis {¶10} on the Odoms claim that Davis was liable under a theory of negligence per se, but did not discuss the Odoms claims on common law negligence, loss of consortium, and intentional infliction of emotional distress. we dismissed order. the appeal for The Odoms appealed, but lack of a final appealable On remand, Davis moved for summary judgment on the Odoms remaining claims, and the Odoms opposed the motion. The trial court granted Davis motion, finding that Davis is entitled to summary judgment on each of the Odoms claims. {¶11} The Odoms timely appeal, and assert the following assignments of error: I. The [trial court] erred in granting appellee summary judgment as a matter of law under Civil Rule 56, despite issues of material fact. the existence of genuine II. The [trial court] erred to the prejudice of appellants and abused its discretion when it violated the Rule 56 standard of review by (a) failing to apply or properly apply the law of common law negligence to the evidence, (b) by basing its decision in part on irrelevant evidence, and (c) by construing the evidence most strongly in favor of the moving party. II. In {¶12} their first assignment of error, the Odoms assert that the trial court erred in granting Davis motion for summary judgment on each of their claims. Summary judgment is appropriate only when it has {¶13} been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party. v. Connor (1988), 37 Ohio Civ.R. 56(A). St.3d 144, Conley (1991), 75 Ohio App.3d 409, 411. 146; See Bostic Morehead v. In ruling on a motion for summary judgment, the court must construe the record and all inferences therefrom in the opposing party s favor. Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, 535. {¶14} The burden of showing that no genuine issue of material fact exists falls upon the party who moves for summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, citing Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. motion However, once the movant supports his or her with nonmoving appropriate party may not evidentiary rest upon materials, mere the allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Civ.R. 56(E); Dresher, supra at 294-95; Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52. In reviewing whether an entry of summary judgment {¶15} is appropriate, an appellate court must independently review the record and the inferences that can be drawn from it to determine if the opposing party can possibly prevail. Morehead, afford Ohio App.3d deference no 75 to at 411-12. the trial answering that legal question. Accordingly, court s decision we in Id. See, also, Schwartz v. Bank-One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809. A. {¶16} The Odoms first claim that the trial court erred in granting summary judgment to Davis on their common law negligence claim because genuine issues of material fact exist. they The Odoms offer a list of several questions that identify Specifically, as the genuine Odoms issues assert that of material genuine fact. issues of material fact exist regarding what duty Davis owed to Laura and Sarah, whether Davis breached his duty, and whether Davis alleged breach of duty caused Laura and Sarah harm. The law determines when a landlord owes a duty to {¶17} a tenant. Under early common law, a landlord generally had no duty to a tenant and was immune from tort liability arising from a dangerous condition on the leased premises, unless the landlord retained control of the premises. Shump v. First Continental-Robinwood Assoc., Ltd. (1994), 71 Ohio St.3d 414, 417, citing Burdick v. Cheadle (1875), 26 Ohio St. 393. common law Courts have carved many exceptions to landlord [c]oncealment or immunity, failure to including disclose exceptions known, for non-obvious latent defects; * * * failure to perform a covenant of repair; breach of statutory duty; and negligent performance of a contractual or statutory duty to repair. 418. Shump at However, under common law a landlord cannot be held liable for negligence unless he has knowledge both of the source of the danger and of the fact that the defect was dangerous. Winston Properties v. Sanders (1989), 57 Ohio App.3d 28, 30; see also Burnworth v. Harper (1996), 109 Ohio App.3d 401, 407, citing Shinkle, Wilson & Kreis Co. v. Birney & Seymour (1903), 68 Ohio St. 328. Because common law provides that a landlord does {¶18} not have a duty to remedy a condition unless he has knowledge of the source of the danger and the fact that the defect was dangerous, the question of Davis duty to the Odoms is a factual one only to the extent that it requires a determination of whether Davis had knowledge of the source of the danger and the fact that it was dangerous. In {¶19} identified his motion evidence, for summary specifically his judgment, own Davis testimony, to support his contention that he had no knowledge that the shower door was Additionally, testimony that condition of plate Davis glass or bolstered he had the door no that the it filing dangerous. credibility knowledge by was of the evidence of his dangerous that inspections never flagged the door as dangerous. HUD Davis testified that he had physically operated the door once during the Odoms tenancy, and he did not notice anything unusual about it. Additionally, Davis testified that the Odoms residence is the only one of his rental properties that has a glass shower door. Finally, Davis testified that the Odoms never notified him of any problem with the shower door. {¶20} Once Davis presented evidence that he had no knowledge regarding the shower door, the burden shifted to the Odoms to point to evidence in the record raising a genuine issue of material fact regarding Davis knowledge. The Odoms, however, failed to do so. The Odoms only presented evidence that Davis has been a professional real estate businessperson for approximately forty years, that Davis has personally properties, property. and that managed Davis approximately has owned fifty rental commercial rental These facts, even when construed in the Odoms favor, are not sufficient to give rise to an inference that Davis possessed knowledge of the fact that the shower door was made of plate glass or that Davis had knowledge that the door was dangerous. {¶21} Thus, because the Odoms failed to present any evidence to rebut Davis evidence regarding his lack of knowledge about the type of glass in the shower door and the danger it posed, we find that the trial court properly granted Davis motion for summary judgment on the Odoms common law negligence claim. B. {¶22} The Odoms next assert that the trial court erred in granting Davis motion for summary judgment on their claim for negligence per se based upon Davis violation of R.C. 5321.04. A landlord who is a party to a rental agreement {¶23} must comply with all safety codes and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition. R.C. 5321.04(A)(1) (2). A landlord s violation of the duties imposed by this statute constitutes negligence per se. Sikora v. Wenzel, 88 Ohio St.3d 493, 2000-Ohio-406, syllabus. However, a landlord will be excused from liability under either section if he neither knew nor should have known circumstances that caused the violation. Davis {¶24} contends 5321.04(A)(1) and (2). that he of the factual Id. complied with R.C. In particular, Davis contends that he complied with all safety codes applicable to the Odoms residence and, while the Odoms note that the Ohio Basic Building Code requires safety glass in glass shower doors, they concede residence. that the OBBC does not apply to their Davis also contends that he kept the Odoms residence in a fit and habitable condition. Additionally, he asserts that he neither knew nor should have known of the fact that the shower door contained plate glass, or that plate glass was prone to shattering and causing injury. {¶25} The Odoms contend that Davis cannot be excused from liability under R.C. 5321.04 because Davis knew or should have known of the plate glass in the shower door and the danger it posed. In support of their contention, the Odoms assert that it is common knowledge that plate glass is dangerous because it has a tendency to shatter. The Odoms the cite to the Code of Federal Regulations for proposition that manufacturers of safety glass must mark it as such, and conclude that Davis should have known that the glass in their shower was not safety glass because it bore no mark. Additionally, the Odoms cite Dawson v. Williamsburg of Cincinnati Management Co. (Feb. 4, 2000), Hamilton App. No. C-981002, for the proposition that the dangers of plate glass in sliding doors were well publicized in the residential rental industry. In Dawson, the First Appellate District reversed {¶26} a trial court s grant of summary judgment to the landlord where the tenant sued for injuries sustained after plate glass in a sliding glass door shattered. the facts appear similar to those in this the Although case, closer examination reveals several important distinctions. {¶27} First, we note that the quote the Odoms cite from Dawson, relating to the dangers of plate glass being wellpublicized in the residential rental industry, was taken from evidence in the record in that case. Specifically, the plaintiff/tenant in Dawson filed the affidavit of an expert witness relating to industry knowledge about plate glass. The Odoms did not provide such an affidavit in this case. Second, in Dawson, the apartment complex at issue was subject to a regulation governing the glass versus safety glass in sliding doors. the parties do not dispute that no use of plate In this case, similar regulation governed the glass door in the Odoms apartment. Finally, in Dawson the plaintiff/tenant provided {¶28} evidence, in the form of the apartment complex maintenance manager s testimony, that the landlord knew or should have known that the sliding glass doors were not safety glass and were unsafe as a result. manager testified that he Specifically, the maintenance observed and repaired broken doors in other units in the complex, and he could tell from the shattering safety glass. that the doors were not constructed of In contrast, the Odoms did not offer any evidence that Davis had notice based upon observations of similar doors. Rather, the Odoms assert that Davis must have known that the glass in the shower was not safety glass because of the absence of a safety glass marking on the door. Contrary to the Odoms assertion, evidence that Davis lacked affirmative knowledge about the glass is not equivalent to evidence that Davis actually knew or should have known that the glass was plate glass. Additionally, the Odoms assert that the danger of plate glass is common knowledge. However, even if the danger posed by plate glass is common knowledge that Davis knew or should have known, the Odoms failed to offer any evidence that Davis knew that the shower door was made of plate glass. In sum, we find that the record in this case does {¶29} not contain any evidence that Davis knew or should have known about the fact that the shower door in the Odoms apartment was not safety glass. Nor does the record contain any evidence that Davis either knew or should have known that the shower door posed a danger. Therefore, we find that, to the extent that Davis failed to keep the premises in a safe and habitable condition, his failure was excused by his lack of knowledge. Thus, we find that the trial court did not err in granting summary judgment in favor of Davis on the Odoms claim for negligence per se. C. {¶30} genuine Because we find that Davis established that no issue of material fact exists and that he is entitled to judgment as a matter of law on the Odoms claim that he is liable for the injuries that Laura sustained when the glass shattered under both common law negligence and negligence per se theories, we find that the trial court did not err in granting summary judgment to Davis on the Odoms remaining first causes two of causes action, of action. Sarah s The claims for Odoms loss of consortium and negligent infliction of emotional distress, are derivative actions finding of negligence. contingent upon an underlying Thus, we find that the trial court also did not err in granting summary judgment to Davis on Sarah s causes of action. {¶31} Accordingly, we overrule the Odoms first assignment of error, and find that the trial court did not err in granting summary judgment to Davis on each of the Odoms claims. III. {¶32} assert In their second assignment of error, the Odoms that the trial court abused its discretion in granting summary judgment to Davis on the Odoms claims. Specifically, the Odoms assert that the trial court failed to construe party, that all the the evidence trial court in favor relied of on the nonmoving irrelevant or incredible evidence, and that the trial court disregarded the Odoms claim for common law negligence. {¶33} Because de novo review is a more stringent standard of review than the abuse of discretion standard (see, generally, Whiteside, Ohio Appellate Practice, (2003 Ed.) 313), our determination that the trial court did not err in granting summary judgment is dispositive on the issue of whether the trial court abused its discretion in granting summary judgment. As to the Odoms specific arguments supporting their second assignment of error, we find neither any error nor any abuse of discretion. {¶34} In particular, we decline to find that the trial court erred or abused its discretion in applying the common law of negligence to the Odoms claims. As we determined in ¶¶16-21 above, Davis established that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law under a common law negligence theory. A court of appeals must affirm a judgment of the trial court if it reached the right conclusion, even if the trial court used invalid reasoning. Morehead v. Conley (1991), 79 Ohio App.3d 409, 414; McCormick v. Haley (1973), 37 Ohio App.2d 73, 135. Thus, even if the trial court failed to properly apply the common law of negligence as the Odoms assert, we will not reverse, as our own review reveals that Davis is entitled to summary judgment on the claim as a matter of law. {¶35} Additionally, we decline to find that the trial court erred or abused its discretion by basing its decision in part on irrelevant or incredible evidence. The Odoms describe irrelevant Davis HUD inspection evidence as because they occurred six to seven years before the glass shattered, and applicability discretion Rigby v. because to in glass Lake the HUD doors. admission Cty. (1991), regulations A or trial court exclusion 58 Ohio have has of St.3d no broad evidence. 269, 271. Relevant evidence is any evidence that tends to make a fact seem more or less probable than without the evidence. Evid.R. 401. Even though the HUD inspections are not conclusive evidence regarding whether the shower door was safe, the inspections are relevant in that they support Davis contention that he had no knowledge that the shower door was dangerous. The Odoms characterize as incredible Davis testimony that he had no knowledge that the material in the shower door was plate glass or that the door was dangerous. However, the Odoms did not file any contradictory evidence to give rise to a genuine issue of material fact. {¶36} Finally, we decline to find that the trial court erred or abused its discretion by construing the evidence most strongly in favor of the moving party. As we discussed in our resolution of the Odoms first assignment of error, the Odoms failed to present any evidence that would prove that Davis knew or should have known about the existence of the plate glass in the shower door and the danger it posed. Davis presented evidence to support his position lacked that he knowledge of the danger. When construing all of the evidence in the record in the light most favorable to the Odoms, reasonable minds can only conclude that Davis is entitled to judgment as a matter of law. {¶37} assignment Accordingly, of error, we and overrule we affirm the the Odoms judgment second of the trial court. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that Appellee recover of Appellants costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Athens County Court of Common Pleas to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions. Evans, P.J. and Abele, J.: Concur in Judgment and Opinion. For the Court BY: Roger L. Kline, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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