[Cite as In re V.R., 2014-Ohio-5061.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



V.R., a minor,                           :        APPEAL NO. C-140230
                                                  TRIAL NO. A-1104516
JENNIFER SANCHEZ,                        :
   and                                   :
RUBEN R.                                              O P I N I O N.
                                         :
         Plaintiffs-Appellants,
                                         :
   vs.
                                         :
CINCINNATI-HAMILTON COUNTY
COMMUNITY ACTION AGENCY,                 :

         Defendant-Appellee,             :

   and                                   :

JOHN DOE EMPLOYEE,                       :

   and                                   :

OHIO DEPARTMENT OF JOB AND               :
FAMILY SERVICES,

         Defendants.                     :


Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 14, 2014

Law Offices of Blake R. Maislin, LLC, and Thomas J. Dall, Jr., for Plaintiffs-
Appellants,

Reminger Co., LPA, Robert W. Hojnoski and Carrie M. Starts, for Defendant-
Appellee.

Please note: this case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


       {¶1}   Plaintiffs-appellants Jennifer Sanchez, Ruben R., and their minor

daughter, V.R., appeal the decision of the trial court granting summary judgment to

defendant-appellee Cincinnati-Hamilton County Community Action Agency (“CAA”)

stemming from an injury sustained by V.R. with a boxcutter that had been used in

repairing Sanchez’s apartment. Because we determine that the appellee owed no

duty to V.R. with respect to her injury, we affirm the judgment of the trial court.

       {¶2}   Sanchez and her three children lived in a two-story townhome owned

and operated by CAA. CAA is a nonprofit entity that provides housing to single

mothers in financial need. Sanchez requested maintenance work for a small area on

the wall behind the toilet in the upstairs bathroom that had moisture damage. Josh

Hill, a maintenance employee for CAA, responded to Sanchez’s request.

       {¶3}   Sanchez’s longtime boyfriend and the father of her three children,

Ruben, showed Hill the problem area in the bathroom. Ruben worked in various

jobs in the construction industry, and his primary vocational skill was drywall work.

Hill had come to Sanchez’s home with a mudding knife and pan, but no other tools,

and Ruben instructed Hill that the problem could not be fixed by applying mud over

the drywall because the problem would reoccur. Ruben insisted that Hill needed to

cut an area out of the wall. Hill tried to cut a portion of the wall with his mudding

knife, but when that did not work, Ruben retrieved his boxcutter. Ruben then

proceeded to talk Hill through the repair by telling him the correct way to cut the

problem out to keep the moisture and mildew away. After Hill had cut out the area,

Ruben then instructed Hill on how to apply mud.




                                           2
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}      As Hill finished up the repair, Sanchez called Ruben downstairs, and

Ruben saw Hill leave minutes later. While Ruben and Sanchez were downstairs in

the kitchen, their two-year-old-son and V.R., then four years old, went upstairs,

unbeknownst to their parents. Ruben and Sanchez then heard a scream coming from

upstairs, and they discovered V.R. had sliced her finger trying to take the boxcutter

away from her little brother. V.R. had three surgeries to repair the tendon and nerve

in her finger.

       {¶5}      Sanchez, Ruben, and V.R., filed an action against CAA, alleging

negligence per se and common-law negligence. In their negligence-per-se claim,

appellants argued that CAA breached its duty under R.C. 5321.04 to repair and

maintain the rental property in a safe, habitable condition. In their common-law

negligence claim, appellants alleged that CAA carelessly permitted a hazardous

condition—the boxcutter—to remain in reach of the children after the repair.

Appellants also named as a defendant in the action “John Doe employee”—meaning

Hill; however, once appellants discovered Hill’s identity, they never amended their

complaint to name Hill. See Civ.R. 3(A); Civ.R. 15(D). Sanchez and Ruben also

claimed loss of consortium damages as a result of V.R.’s injury. Appellants named

the Ohio Department of Job and Family Services as a party to the extent that it had a

right of subrogation as to any relief recovered by appellants.

       {¶6}      CAA deposed Ruben and Sanchez. Most of the underlying facts came

from Ruben’s deposition, because Sanchez had little first-hand knowledge of the

events leading up to V.R.’s injury. CAA then moved for summary judgment as to all

of appellants’ claims. CAA argued that it owed no duty with respect to V.R.’s injury,

and that no statutory violation occurred to support a negligence-per-se claim.

                                           3
                   OHIO FIRST DISTRICT COURT OF APPEALS



Appellants responded to CAA’s motion with affidavits from Ruben and Sanchez.

Ruben’s affidavit largely summarized his deposition testimony; however, Ruben

averred that Hill had left Sanchez’s townhome “with no notice.” The trial court heard

oral argument on CAA’s motion and subsequently granted the motion. This appeal

ensued.

       {¶7}   In two assignments of error, appellants argue that the trial court erred

in granting summary judgment in favor of CAA.

       {¶8}   Summary judgment is appropriate when no genuine issues of material

fact remain to be decided, the moving party is entitled to judgment as a matter of

law, and it appears from the evidence that reasonable minds can come to but one

conclusion, and with the evidence construed most strongly in favor of the nonmoving

party, that conclusion is adverse to that party. See Civ.R. 56(C); Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We review the grant of

summary judgment de novo.        Jorg v. Cincinnati Black United Front, 153 Ohio

App.3d 258, 2003-Ohio-3668, 792 N.E.2d 781, ¶ 6 (1st Dist.).

       {¶9}   To establish a cause of action for negligence, a plaintiff must show (1)

the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty,

(3) the defendant’s breach proximately caused the plaintiff’s injury, and (4) damages.

Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d

120, ¶ 10. A duty may be established by common law, by legislative enactment, or by

the particular facts and circumstances of the case. Chambers v. St. Mary’s School,

82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998).

       {¶10} As a general matter, a property owner has no common-law duty to

warn individuals lawfully on the premises against known or open and obvious

                                          4
                   OHIO FIRST DISTRICT COURT OF APPEALS



dangers—also known as the open-and-obvious doctrine. Robinson v. Bates, 112 Ohio

St.3d 17, 24, 2006-Ohio-6362, 857 N.E.2d 1195. The rationale for the open-and-

obvious doctrine is that an invitee or occupier of the property can reasonably be

expected to discover known or obvious dangers and protect against them. Daniels v.

Verai Ents., 1st Dist. Hamilton No. C-110440, 2012-Ohio-2264, ¶ 12, citing

Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d

1088, ¶ 5.

       {¶11} In derogation of the common-law duties of landlords, the Ohio

legislature created various obligations upon landlords in the Landlord-Tenant Act.

See R.C. 5321.04. A landlord’s violation of a provision of the Landlord-Tenant Act

constitutes negligence per se, meaning that duty and breach have been conclusively

established. Cipollone v. Hoffmeier, 1st Dist. Hamilton No. C-060482, 2007-Ohio-

3788. The common law, open-and-obvious doctrine will not protect a landlord from

liability for breaches of statutory duties under the Landlord-Tenant Act; however, if

no statutory breach occurred, the open-and-obvious doctrine remains a bar to a

common-law negligence claim. See Robinson; Mann v. Northgate Investors LLC,

2012-Ohio-2871, 973 N.E.2d 772 (10th Dist.).

       {¶12} In response to CAA’s summary-judgment motion, appellants argue

that CAA breached its statutory duty to repair under the Landlord-Tenant Act. R.C.

5321.04(A)(2) provides that a landlord must “[m]ake all repairs and do whatever is

reasonably necessary to put and keep the premises in a fit and habitable condition[.]”

In order to maintain a claim under R.C. 5321.04(A)(2), a plaintiff must show that the

premises are unfit and uninhabitable. January Invests., LLC v. Ingram, 12th Dist.

Warren No. CA2009-09-127, 2010-Ohio-1937, ¶ 26, citing Cipollone, 1st Dist.

                                          5
                    OHIO FIRST DISTRICT COURT OF APPEALS



Hamilton No. C-060482, 2007-Ohio-3788, at ¶ 22. This court has held that R.C.

5321.04(A)(2) requires the defects in the premises to be “so substantial as to amount

to a constructive eviction” and constitute “more than nuisances or trifles.” (Internal

quotation omitted.) Cipollone at ¶ 22.

       {¶13} Appellants make no argument, nor point to any evidence in the record,

demonstrating that the premises were unsafe or uninhabitable such that they were

constructively evicted under R.C. 5321.04(A)(2).      In the absence of any other

statutory duty breached by CAA, CAA is entitled to summary judgment on

appellants’ negligence-per-se claim. See Mullins v. Grosz, 10th Dist. Franklin No.

10AP-23, 2010-Ohio-3844, ¶ 29 (summary judgment was proper where the plaintiff

failed to assert any argument or provide any evidence that the defendant had

breached a provision of the Landlord-Tenant Act in response to a summary-

judgment motion).

       {¶14} As to the common-law negligence claim, the open-and-obvious

doctrine bars the appellants’ claim that CAA breached a duty with regard to the

boxcutter. The evidence in the record demonstrates that Ruben loaned Hill the

boxcutter, and directed and observed Hill throughout the repair. Only when Hill

finished using the boxcutter and nearly completed the repair did Ruben head

downstairs.

       {¶15} Although Ruben averred in his affidavit that Hill left Sanchez’s home

without notice, Ruben testified that he knew Hill was finished with the job and was

not going to come back when he saw Hill exit from the townhome. Appellants

cannot, “without sufficient explanation,” contradict deposition testimony in an

affidavit to defeat summary judgment. See Byrd v. Smith, 110 Ohio St.3d 24, 2006-

                                          6
                    OHIO FIRST DISTRICT COURT OF APPEALS



Ohio-3455, 850 N.E.2d 47, paragraph three of the syllabus. Ruben further testified

that after he had gone downstairs, he neglected to take his boxcutter with him, and

he simply “lost total track” of it as he became occupied with something else. Ruben

knew his boxcutter remained upstairs where one of his children could reasonably be

expected to come across it when playing upstairs unsupervised. The boxcutter was a

known risk to Ruben, and he failed to guard against that risk to protect to his

children.   Thus, appellants failed to establish that CAA owed them a duty with

respect to the boxcutter.

       {¶16} In conclusion, because appellants failed to establish that CAA owed

them a duty, and failed to establish that CAA breached a duty under the Landlord-

Tenant Act, CAA is entitled to judgment as a matter of law on appellants’ common-

law negligence claim and negligence-per-se claim. We affirm the judgment of the

trial court granting summary judgment to CAA.

                                                                     Judgment affirmed.


CUNNINGHAM, P.J., and DINKELACKER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                            7
