[Cite as Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495.]




      LANG, APPELLANT, v. HOLLY HILL MOTEL, INC. ET AL., APPELLEES.
                        [Cite as Lang v. Holly Hill Motel, Inc.,
                        122 Ohio St.3d 120, 2009-Ohio-2495.]
Torts — Premises liability — Liability for open and obvious hazards — Building
        code violations — Violations of administrative rules do not constitute
        negligence per se.
   (Nos. 2007-1222 and 2007-1370 — Submitted February 17, 2009 — Decided
                                       June 3, 2009.)
     APPEAL from and CERTIFIED by the Court of Appeals for Jackson County,
                             No. 06CA18, 2007-Ohio-3898.
                                  __________________
                                SYLLABUS OF THE COURT
The open-and-obvious doctrine may be asserted as a defense to a claim of liability
        arising from a violation of the Ohio Basic Building Code.
                                  __________________
        MOYER, C.J.
                                                   I
        {¶ 1} The Fourth District Court of Appeals certified this case pursuant to
Section 3(B)(4), Article IV, Ohio Constitution and App.R. 25. The court of
appeals found its judgment to be in conflict with the judgments of the First and
Tenth District Courts of Appeals1 on the following issue: “[w]hether a violation of
an administrative building code provision prohibits the application of the open


1. See Christen v. Don Vonderhaar Mkt. & Catering, Inc., 1st Dist. No. C-050125, 2006-Ohio-
715; Francis v. Showcase Cinema Eastgate, 155 Ohio App.3d 412, 2003-Ohio-6507, 801 N.E.2d
535; Uddin v. Embassy Suites Hotel, 165 Ohio App.3d 699, 2005-Ohio-6613, 848 N.E.2d 519,
appeal allowed, 109 Ohio St.3d 1455, 2006-Ohio-2226, 847 N.E.2d 5, appeal dismissed as
improvidently allowed, 113 Ohio St.3d 1249, 2007-Ohio-1791, 864 N.E.2d 638.
                             SUPREME COURT OF OHIO




and obvious doctrine and precludes summary judgment on a negligence claim.”
We accepted plaintiff-appellant Dorothy Lang’s discretionary appeal on the same
issue.
         {¶ 2} For the following reasons, we affirm the judgment of the court of
appeals and hold that the open-and-obvious doctrine remains applicable in cases
where the defendant violated the Ohio Basic Building Code.
                                         II
         {¶ 3} Appellant Dorothy Lang is the executor of the estate of her
husband, Albert Lang. One evening in early April 1999, the Langs arrived at the
Holly Hill Motel, owned by appellee Holly Hill Motel, Inc., and asked to rent a
room. Because Mr. Lang was 78 years old, suffered from emphysema, and
carried a portable oxygen tank, Mrs. Lang requested a handicapped-accessible
room. The motel did not have any such rooms available, but the front desk clerk
informed Mrs. Lang that they could have a room that would require them to climb
only one step. The Langs rented that room and parked their car outside of it.
         {¶ 4} After exiting the car, they discovered that they would actually have
to climb two steps to get into the room, and that the steps had no handrails. Mr.
Lang successfully climbed the first step with assistance from Mrs. Lang.
However, as he attempted to climb the second step, also with Mrs. Lang’s
assistance, he fell and broke his hip. Mr. Lang ultimately died a little over three
months after his fall.
         {¶ 5} Mrs. Lang sued the motel for negligence. In her complaint, she
alleged that the step Mr. Lang tripped over exceeded the height limitations in the
Ohio Basic Building Code and that this violation created a dangerous condition
that was exacerbated by the absence of handrails, which were also required under
the Building Code. According to Mrs. Lang’s expert witness, the first step, which
Mr. Lang successfully climbed, was at its lowest point 3.5 inches higher than was
permissible under the Building Code and the second step, over which Mr. Lang




                                         2
                                  January Term, 2009




fell, was at its lowest point 2.375 inches higher than permissible. The motel filed
a third-party complaint against appellee Rodney McCorkle, d.b.a. McCorkle
Builders, who allegedly had constructed the part of the motel, including the steps,
where this incident occurred.
       {¶ 6} The motel and McCorkle moved for summary judgment, arguing
that even if the step was constructed in violation of the Building Code, it was
nonetheless an open and obvious condition and that they therefore owed no duty
of care to the Langs. Mrs. Lang appealed the trial court order of summary
judgment for defendants, arguing, inter alia, that the open-and-obvious doctrine is
inapplicable and summary judgment is improper when the condition at issue is in
violation of the Building Code.
       {¶ 7} The court of appeals first determined that the step was an open and
obvious condition and that there were no attendant circumstances that distracted
the Langs from appreciating the danger of the condition. Lang v. Holly Hill
Motel, Inc., 4th Dist. No. 06CA18, 2007-Ohio-3898, ¶ 26–28. The court then
recognized that there was a conflict among the appellate districts regarding
whether Building Code violations preclude summary judgment when a condition
is open and obvious. Id. ¶ 29. After reviewing this court’s opinion in Chambers
v. St. Mary’s School (1998), 82 Ohio St.3d 563, 697 N.E.2d 198, and decisions
from the various districts in conflict, the court of appeals held that a Building
Code violation does not negate the application of the open-and-obvious doctrine.
Id. ¶ 34. It therefore affirmed the judgment of the trial court entering summary
judgment for the defendants. Id. ¶ 35.
       {¶ 8} The court then certified its decision as being in conflict with
decisions from the First and Tenth District Courts of Appeals. We accepted
Lang’s discretionary appeal and recognized the certified conflict. 115 Ohio St.3d
1407, 2007-Ohio-4884, 873 N.E.2d 1313; 115 Ohio St.3d 1408, 2007-Ohio-4884,
873 N.E.2d 1314.




                                          3
                            SUPREME COURT OF OHIO




                                        III
       {¶ 9} This case requires us to determine whether the open-and-obvious
doctrine is applicable to a premises-liability action when the condition that caused
the injury violates the Ohio Basic Building Code.
                      A.     The open-and-obvious doctrine
       {¶ 10} To prevail in a negligence action, a plaintiff must demonstrate that
(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached
that duty, and (3) the defendant’s breach proximately caused the plaintiff to be
injured. Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d
1195, ¶ 21, citing Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St.3d 75,
77, 15 OBR 179, 472 N.E.2d 707. When the alleged negligence occurs in the
premises-liability context, the applicable duty is determined by the relationship
between the landowner and the plaintiff. Gladon v. Greater Cleveland Regional
Transit Auth. (1996), 75 Ohio St.3d 312, 315, 662 N.E.2d 287. It is undisputed in
this case that the Langs were business invitees of the Holly Hill Motel, and thus
the motel had a duty “to exercise ordinary care and to protect the [Langs] by
maintaining the premises in a safe condition.” Light v. Ohio Univ. (1986), 28
Ohio St.3d 66, 68, 28 OBR 165, 502 N.E.2d 611.
       {¶ 11} However, this duty does not require landowners to insure the
safety of invitees on their property. As we have repeatedly recognized, “[t]he
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, approving and following Sidle v. Humphrey (1968),
13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589. “[T]he owner or occupier may
reasonably expect that persons entering the premises will discover those dangers
and take appropriate measures to protect themselves.” Simmers v. Bentley Constr.
Co. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504. Thus, when a plaintiff is




                                         4
                                 January Term, 2009




injured by an open and obvious danger, summary judgment is generally
appropriate because the duty of care necessary to establish negligence does not
exist as a matter of law. Armstrong ¶ 14–15.
                  B.     Exception to the open-and-obvious doctrine
           {¶ 12} Mrs. Lang has not appealed the court of appeals’ determination
that the step was open and obvious. She argues instead that the open-and-obvious
doctrine does not eliminate the landowner’s duty of care, and thus summary
judgment is inapplicable, when the dangerous condition at issue violates the
Building Code. In short, she is asking for an exception to the open-and-obvious
doctrine when the condition that allegedly caused an injury violates the Building
Code.
           {¶ 13} We recently addressed whether such an exception should exist for
cases in which a landowner’s failure to comply with a statutory duty creates an
open and obvious danger. Robinson, 112 Ohio St.3d 17, 2006-Ohio-6362, 857
N.E.2d 1195. In Robinson, the plaintiff was injured when she fell in the driveway
of a residence that she rented from the defendant. Id. ¶ 2. The trial court
determined that the driveway, which was under repair at the time, was an open
and obvious danger and accordingly entered a directed verdict for the defendant.
Id. ¶ 3.
           {¶ 14} Upon appeal from the court of appeals, we held that although the
open-and-obvious doctrine can excuse a defendant’s breach of a common-law
duty of care, it does not override statutory duties. Id. ¶ 25. The distinction
between the two types of duties lies in the fact that the violation of a statutory
duty constitutes negligence per se. Id. ¶ 23–25. See also Chambers, 82 Ohio
St.3d at 565, 697 N.E.2d 198, citing Eisenhuth v. Moneyhon (1954), 161 Ohio St.
367, 53 O.O. 274, 119 N.E.2d 440. (“Where a legislative enactment imposes a
specific duty for the safety of others, failure to perform that duty is negligence per
se”).




                                          5
                             SUPREME COURT OF OHIO




         {¶ 15} 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; no other facts are relevant. Chambers at 565–566, 697 N.E.2d
198, citing Swoboda v. Brown (1935), 129 Ohio St. 512, 522, 2 O.O. 516, 196
N.E. 274. We have recognized that when the General Assembly has enacted
statutes the violations of which constitute negligence per se, the open-and-obvious
doctrine will not protect a defendant from liability. Robinson, 112 Ohio St.3d 17,
2006-Ohio-6362, 857 N.E.2d 1195, ¶ 25; Chambers, 82 Ohio St.3d at 567–568,
697 N.E.2d 198.
    C.       Administrative-rule violations and the open-and-obvious doctrine
         {¶ 16} In requesting an exception from the application of the open-and-
obvious doctrine for Building Code violations, Mrs. Lang is essentially asking us
to elevate administrative-rule violations to the level of negligence per se that we
applied to statutory violations in Robinson.
         {¶ 17} However, we rejected this argument in Chambers, in which the
plaintiff slipped and fell on icy steps and alleged that the defendant had
committed several Building Code violations that created the dangerous condition.
Chambers, 82 Ohio St.3d at 564, 697 N.E.2d 198. He urged us to hold that a
violation of the Building Code constitutes negligence per se. Id.
         {¶ 18} In resolving the issue, we distinguished between duties arising
from statutes, which reflect public policy, and duties arising from administrative
rules, which are created by administrative agency employees who act to
implement the General Assembly’s public-policy decisions. Chambers, 82 Ohio
St.3d at 564, 566-567, 697 N.E.2d 198. “If we were to rule that a violation of the
[Building Code] (an administrative rule) was negligence per se, we would in
effect bestow upon administrative agencies the ability to propose and adopt rules
which alter the proof requirements between litigants. Altering proof requirements




                                         6
                               January Term, 2009




is a public policy determination more properly determined by the General
Assembly * * *.” Id. at 568.
       {¶ 19} We also noted that there are innumerable administrative rules
adopted each year and that it would be virtually impossible to comply with all of
them. Id. Applying negligence per se in this context would thus in effect turn
those subject to administrative rules into insurers of third-party safety, something
that violates the basic principle of the open-and-obvious doctrine. Id. “Only
those relatively few statutes which this court or the General Assembly has
determined, or may determine, should merit application of negligence per se
should receive such status.” (Emphasis sic.) Id.
       {¶ 20} For those reasons, we declined to extend negligence per se to
administrative-rule violations, holding instead that such violations could be
admissible as evidence of negligence, but nothing further. Id.
       {¶ 21} Our holding there resolves the present issue.                Because
administrative-rule violations do not create a per se finding of duty and breach of
duty, the plaintiff must present evidence to establish those two prongs of the
negligence test. While a violation of the Building Code may serve as strong
evidence that the condition at issue was dangerous and that the landowner
breached the attendant duty of care by not rectifying the problem, the violation is
mere evidence of negligence and does not raise an irrebuttable presumption of it.
As is the case with all other methods of proving negligence, the defendant may
challenge the plaintiff’s case with applicable defenses, such as the open-and-
obvious doctrine. The plaintiff can avoid such defenses only with a per se finding
of negligence, which we declined to extend to this context in Chambers.
       {¶ 22} Mrs. Lang argues that applying the open-and-obvious doctrine in
this manner negates the importance of the regulations and eliminates the penalties
for noncompliance. We disagree. Her argument assumes that there will be no
circumstances in which a dangerous condition created by a Building Code




                                         7
                                SUPREME COURT OF OHIO




violation is not open and obvious. This decision applies only to those cases in
which an alleged Building Code violation creates an alleged danger that is
allegedly open and obvious to the plaintiff. There is little difference in this regard
between an open and obvious condition that arises from an administrative-rule
violation and one that arises from other circumstances; in either case, the plaintiff
is responsible for his or her own decision to proceed through a known danger.
       {¶ 23} Moreover, this decision will not provide a disincentive for
landowners to comply with the Building Code. In addition to the possibility that a
condition arising from a violation will not be open and obvious, there are
numerous statutory penalties that may be levied against landowners who commit
violations. See R.C. 3781.15 (providing for injunctions for violations of the
Building Code) and 3781.99(B) and (C) (providing for fines and criminal
penalties for such violations). The potential for civil liability and the threat of
statutory penalties for noncompliance are powerful disincentives to landowners
who contemplate violating the Building Code.
       {¶ 24} Therefore, we hold that the open-and-obvious doctrine may be
asserted as a defense to a claim of liability arising from a violation of the Ohio
Basic Building Code.
                                         IV
       {¶ 25} For the foregoing reasons, we affirm the judgment of the court of
appeals.
                                                                 Judgment affirmed.
       LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur.
       O’CONNOR and LANZINGER, JJ., concur in judgment only.
       PFEIFER, J., dissents.
                                 __________________
       LANZINGER, J., concurring in judgment only.




                                          8
                                    January Term, 2009




        {¶ 26} Today, the majority holds that the open-and-obvious doctrine may
be asserted as a defense to a claim of liability arising from a violation of the Ohio
Basic Building Code. In reality, this is more than a defense—it is a complete bar
to a claim of negligence.
        {¶ 27} 2 Restatement of the Law 2d, Torts (1965), Section 343A(1),
states, “A possessor of land is not liable to his invitees for physical harm caused
to them by any activity or condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the harm despite such
knowledge or obviousness.” (Emphasis added.)                Comment f further explains:
“There are, however, cases in which the possessor of land can and should
anticipate that the dangerous condition will cause physical harm to the invitee
notwithstanding its known or obvious danger. In such cases the possessor is not
relieved of the duty of reasonable care which he owes to the invitee for his
protection. This duty may require him to warn the invitee, or to take other
reasonable steps to protect him, against the known or obvious condition or
activity, if the possessor has reason to expect that the invitee will nevertheless
suffer physical harm.”
        {¶ 28} Courts from other jurisdictions have adopted the foreseeability rule
of Section 343A.2        These courts have abolished the traditional common-law
defense of open and obvious danger, which completely bars recovery if the
danger is known by, or is obvious to, the plaintiff. This court, however, rejected
the view expressed in Section 343A in Armstrong v. Best Buy Co., Inc., 99 Ohio
St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 13. While I believe that Section

2. Kremer v. Carr's Food Ctr., Inc. (Alaska 1969), 462 P.2d 747; Courtney v. Allied Filter Eng.,
Inc. (1989), 181 Ill.App.3d 222, 536 N.E.2d 952; Douglass v. Irvin (Ind.1990), 549 N.E.2d 368;
Konicek v. Loomis Bros., Inc. (Iowa 1990), 457 N.W.2d 614; Murray v. E. Maine Med. Ctr.
(Me.1982), 447 A.2d 465; Riddle v. McLouth Steel Prods. Corp. (1992), 440 Mich. 85, 485
N.W.2d 676; Adee v. Evanson (Minn.1979), 281 N.W.2d 177; Burns v. Veterans of Foreign Wars
(1989), 231 Neb. 844, 438 N.W.2d 485; Klopp v. Wackenhut Corp. (1992), 113 N.M. 153, 824
P.2d 293; S. Ry. Co. v. ADM Milling Co. (1982), 58 N.C.App. 667, 294 S.E.2d 750; Carrender v.
Fitterer (1983), 503 Pa. 178, 469 A.2d 120.




                                               9
                            SUPREME COURT OF OHIO




343A is the better rule, stare decisis demands that our precedent to the contrary
must be respected.
       {¶ 29} I also agree with the sentiment recently expressed by the dissent in
Uddin v. Embassy Suites Hotel, 113 Ohio St. 3d 1249, 2007-Ohio-1791, 864
N.E.2d 638, ¶ 16 (O’Connor, J., dissenting): “As the lead opinion of the court of
appeals recognized, ‘[w]hen we are considering a motion for summary judgment,
to ignore a party's purported violation of an administrative rule that is supported
by some evidence would vitiate the legal significance of an administrative rule.
For instance, in a case wherein summary judgment is sought and application of
the open-and-obvious rule is disputed, if a defendant's purported violation of the
administrative code that was supported by some evidence were ignored, a party
could violate an administrative rule, thereby possibly endangering public safety,
yet be insulated from liability because such a violation constituted an open-and-
obvious condition.’ 165 Ohio App.3d 699, 2005-Ohio-6613, 848 N.E.2d 519, ¶
37.   To hold otherwise, we would have to defy the legal significance of
administrative rules and suspend common sense.”
       {¶ 30} Appellant Dorothy Lang does not contest in this court the
determinations of the trial court and court of appeals that the steps upon which her
husband fell were an open and obvious condition. If she had, in my view this case
would not have been appropriate for resolution by summary judgment. The
alleged building code violations combined with other factors (that it was night,
that the steps and sidewalk were uniform in color) would have created a genuine
issue over whether the condition was indeed open and obvious. And simply
allowing the jury to consider evidence of the alleged building code violations
would not establish negligence per se. As the majority notes, “[w]hile a violation
of the Building Code may serve as strong evidence that the condition at issue was
dangerous and that the landowner breached the attendant duty of care by not




                                        10
                                January Term, 2009




rectifying the problem, the violation is mere evidence of negligence, and does not
raise an irrebuttable presumption of it.” (Emphasis added.) Majority opinion, ¶ 21.
       {¶ 31} I believe that the facts in this case come within the exception to the
lack of duty as set forth in Restatement of the Law 2d, Torts (1965), Section
343A(1), that being the concept of anticipated harm from an obvious condition.
Nevertheless, because this court has not adopted that exception, and based on this
court’s earlier holding in Armstrong that an open and obvious condition bars a
negligence action because of lack of duty, I concur in judgment only.
       O’CONNOR, J., concurs in the foregoing opinion.
                               __________________
       PFEIFER, J., dissenting.
       {¶ 32} Albert Lang was injured while on the premises of the Holly Hill
Motel, allegedly, at least in part, because of building code violations. This court
today decides that Mr. Lang’s widow cannot proceed with a lawsuit, because the
building code violations that allegedly caused, at least in part, Mr. Lang’s injuries,
and hastened his death, were open and obvious. This court again embraces the
legal concept that “ ‘[w]here a danger is open and obvious, a landowner owes no
duty of care to individuals lawfully on the premises,’ ” quoting Armstrong v. Best
Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus. In
doing so, this court clings to the past and ignores a modern trend in the law.
       {¶ 33} The open-and-obvious doctrine is a holdover from the days of
contributory negligence.      Id. at ¶ 17 (Pfeifer, J., dissenting).       Now that
contributory negligence has been replaced by the General Assembly with
comparative fault, R.C. 2315.32 through 2315.36, the open-and-obvious doctrine
should not be an absolute bar to recovery. 1 Comparative Negligence Manual (3d
Ed.1995 & Supp.2003), Section 1:23 (“several jurisdictions have concluded that
the adoption of comparative negligence requires abolition of the ‘no duty’ rule
providing that a possessor of land owes no duty to warn a person on the premises,




                                         11
                             SUPREME COURT OF OHIO




such as an invitee or a licensee, of open and obvious dangers. The rationale is that
this rule is incompatible with comparative negligence principles, since its effect
would be to resurrect contributory negligence as an absolute bar to recovery in
certain cases involving premises liability” [footnote omitted]).
       {¶ 34} The unfairness of the open-and-obvious doctrine has been
recognized by many commentators and courts. One commentator has stated that
“[a]n undeniable legal error is committed every time a court bars recovery to an
injured person based solely on the fact that the perilous nature of the alleged cause
of harm was ‘apparent to all,’ without any consideration of the multitude of other
factors which may justify or excuse the plaintiff's conduct.” Phillips, Assumption
of the Risk Returns in Disguise as the Open and Obvious Doctrine Defense, 30
ISBA Tort Trends (1995) 4, 10. The modern trend is away from application of
the open-and-obvious doctrine. Tharp v. Bunge Corp. (Miss.1994), 641 So.2d 20,
24 (“Emerging from other jurisdictions is a modern trend toward holding that the
obviousness of a danger does not necessarily relieve the owner’s duty of care”);
Ward v. K Mart Corp. (1990), 136 Ill.2d 132, 150, 554 N.E.2d 223 (“The
manifest trend of the courts in this country is away from the traditional rule
absolving, ipso facto, owners and occupiers of land from liability for injuries
resulting from known or obvious conditions”). In Coln v. Savannah (Tenn.1998),
966 S.W.2d 34, 43, overruled on other grounds, Cross v. Memphis (Tenn.2000),
20 S.W.3d 642, 644, the Supreme Court of Tennessee joined this trend in
concluding that an open and obvious danger “does not, ipso facto, relieve a
defendant of a duty of care. Instead, the duty issue must be analyzed with regard
to foreseeability and gravity of harm, and the feasibility and availability of
alternative conduct that would have prevented the harm.”
       {¶ 35} I agree with the Supreme Court of New Mexico that “[a] risk is not
made reasonable simply because it is made open and obvious to persons
exercising ordinary care.” Klopp v. Wackenhut Corp. (1992), 113 N.M. 153, 157,




                                         12
                                 January Term, 2009




824 P.2d 293. I also agree with that court’s holding that “it is for the jury to
decide in virtually every case whether a dangerous condition on the premises
involved ‘an unreasonable risk of danger to a business visitor’ and whether the
occupier ‘should reasonably anticipate that the business visitor will not discover
or realize the [obvious] danger.’ ” Id. at 158-159, quoting New Mexico Uniform
Jury Instructions, 13–1310, citing Harrison v. Taylor (1989), 115 Idaho 588, 768
P.2d 1321 (abolishing open-and-obvious-danger doctrine in light of adoption of
comparative negligence); Cox v. J.C. Penney Co. (Miss.1987), 741 S.W.2d 28
(same); Woolston v. Wells (1984), 297 Or. 548, 687 P.2d 144 (same); Parker v.
Highland Park, Inc. (Tex.1978), 565 S.W.2d 512 (same); Hale v. Beckstead (Utah
2005), 116 P.3d 263 (same); O’Donnell v. Casper (Wyo.1985), 696 P.2d 1278
(same). I would abrogate the open-and-obvious doctrine.
       {¶ 36} In the case before us, the dangers were open because they were not
hidden, but they were not obvious. The presence or absence of a handrail is not
obvious until one reaches for it and it is either there or not. The proper height of a
step, as prescribed by building codes, is not obvious, especially to a
nonprofessional, without taking measurements. The building code violations that
allegedly caused Mr. Lang’s injuries were open, but they were not obvious. This
case presents an example of why the open-and-obvious doctrine should be
abrogated: it does not allow the consideration of all the factors that are relevant to
determine negligence or fault.
       {¶ 37} Even so, it is not necessary to abrogate the open-and-obvious
doctrine to properly resolve this case. Building code violations are different from
other open and obvious dangers because building codes are administrative rules
and therefore “are to be given the force and effect of law.” Doyle v. Ohio Bur. of
Motor Vehicles (1990), 51 Ohio St.3d 46, 554 N.E.2d 97, paragraph one of the
syllabus. This is so because “ ‘[t]he purpose of administrative rulemaking is to
facilitate the administrative agency’s placing into effect the policy declared by the




                                         13
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General Assembly in the statutes to be administered by the agency. In other
words, administrative agency rules are an administrative means for the
accomplishment of a legislative end.’ ” Id. at 47, quoting Carroll v. Dept. of
Adm. Servs (1983), 10 Ohio App.3d 108, 110, 10 OBR 132, 460 N.E.2d 704. See
Youngstown Sheet & Tube Co. v. Lindley (1988), 38 Ohio St.3d 232, 234, 527
N.E.2d 828, quoting Kroger Grocery & Baking Co. v. Glander (1948), 149 Ohio
St. 120, 125, 36 O.O. 471, 77 N.E.2d 921 (“An administrative rule, ‘* * * issued
pursuant to statutory authority, has the force and effect of law unless it is
unreasonable or is in clear conflict with statutory enactment governing the same
subject matter’ ”). The majority opinion minimizes the standing of administrative
rules, relying on Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563, 697
N.E.2d 198, and clearly considers them not worthy of the force and effect of law.
There is even the suggestion that because administrative rules are changed so
frequently, compliance with them is virtually impossible and, therefore,
apparently optional. I do not have such a blasé attitude toward administrative
rules.   They are the law, unless unreasonable or contrary to statute, and
compliance with them is mandatory; the failure to comply with them should have
consequences.
         {¶ 38} I agree with the majority opinion that the violation of an
administrative rule, in this case, a building code, should not be negligence per se.
See id. at 568, 697 N.E.2d 198 (“we hold that the violation of an administrative
rule does not constitute negligence per se”). Because administrative rules are law,
however, I do not believe that this court should, in essence, look the other way
when the violation of a building code provision allegedly results in injury.
Instead, I believe that when a material building code violation allegedly causes an
injury, the building code violation is evidence of negligence sufficient to get the
plaintiff past summary judgment, even when the defendant asserts the
anachronistic open-and-obvious doctrine. I dissent.




                                        14
                                January Term, 2009




                              __________________
       Manley Burke, L.P.A., Emily T. Supinger, and Matthew W. Fellerhoff, for
appellant.
       Sowash, Carson & Ferrier, L.P.A., Herman A. Carson, and Beth B.
Ferrier, for appellee Holly Hill Motel.
       Weston Hurd, L.L.P, Kevin R. Bush, and Steven G. Carlino, for appellee
Rodney McCorkle.
       Gallagher Sharp and Timothy J. Fitzgerald, urging affirmance for amicus
curiae, Ohio Association of Civil Trial Attorneys.
                              __________________




                                          15
