[Cite as Dardy v. Thompson, 2014-Ohio-2700.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                    GEAUGA COUNTY, OHIO


JENNIFER DARDY, et al.,                        :        OPINION

                 Plaintiffs-Appellants,        :
                                                        CASE NO. 2013-G-3157
        - vs -                                 :

RICHARD C. THOMPSON,                           :

                 Defendant-Appellee.           :


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 12 M 000377.

Judgment: Affirmed.


Mark I. Wachter, Karberg, Kurant & Wachter Co., L.P.A., 30195 Chagrin Boulevard,
Suite 300, Cleveland, OH 44124-5705 (For Plaintiffs-Appellants).

James E. Featherstone, Grange Insurance, 610 South Front Street, Columbus, OH
43215 (For Defendant-Appellee).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellants, Jennifer Dardy and Russell Brink, appeal the July 24, 2013

judgment of the Geauga County Court of Common Pleas granting appellee, Richard C.

Thompson’s, motion for summary judgment.           For the reasons discussed below, we

affirm the decision of the trial court.

        {¶2}     Appellants entered into a lease with appellee for residential property in

January 2009. The lease covered only the residential portion of the structure. The

remaining portions of the structure, remnants of dog kennels and an efficiency
apartment utilized by a prior owner, remained unleased and unoccupied and were not

subject to the lease agreement between appellants and appellee. A second lease was

entered into between appellants and appellee the subsequent year for the same space

as the first lease.

       {¶3}    On the morning of November 8, 2010, a fire to the structure caused

significant property loss. On November 10, 2010, a second fire destroyed the property.

Appellants lost all their personal belongings kept in the home, as well as a pair of four-

wheelers, a snowmobile, and a Ford Mustang, which were all kept in the home’s

garage. Neither appellant was home at the time either fire began.

       {¶4}    After the fires, investigations were conducted by a number of entities,

including insurance investigators for both appellants and appellee. The results of the

investigations were inconclusive as to the cause of the fire. Senior Fire Investigator

Aaron Hurd, hired by appellee’s insurer, concluded that “neither the first material ignited

nor the ignition source of this fire were able to be determined with an acceptable level of

certainty” and that the “possibility of an intentionally set fire or an electrical failure in the

structure wiring in the kennel area could not be eliminated as to the ignition source of

the fire.”    Joseph Vanek, the Certified Fire and Explosion Investigator retained by

appellants’ insurer, concluded that the ignition source and the first material ignited could

not be determined. Vanek also opined that the “the cause of the fire is accidental.”

       {¶5}    During the course of the fire investigation, appellee’s insurance

investigator isolated the electrical panel that serviced the area. The electrical panel was

tagged and removed from the scene by appellee’s insurance investigator. The electrical




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panel was photographed and subsequently destroyed by appellee’s insurance

company’s investigator within 60 days of the fire.

      {¶6}   The day before the first fire, appellants were cleaning in the kennel area of

the building. Appellants sought permission from appellee to carry out this work, as the

kennel area was not part of the premises included in the lease agreement. In addition

to general cleaning of the area, this work included the use of torches to cut off bolts in

order to remove some of the kennels.

      {¶7}   Prior to the fires, while appellee owned the property, several incidents

involving the proper functioning of the electrical service to the property were reported.

In April 2008, a melted meter was replaced by the utility company. While appellants

lived at the home, an electrical surge ruined several appliances and electronic pieces,

including appellants’ washer, television, hot water heater, and home theater system.

The home’s lights were also known to flicker and dim.          However, Appellant Brink

admitted in his deposition that the power surge issues were fully rectified by the utility

company a couple of months before the fire.

      {¶8}   Appellants filed a complaint alleging three separate causes of action

against appellee. All three causes of action alleged that appellee was negligent in the

upkeep of the property’s electrical system, and as a result of appellee’s negligence,

appellants suffered damages. Appellee timely answered the complaint. Appellants filed

a pretrial statement which stated that, while appellants “do not have an expert witness, it

is anticipated that fire investigators and members of the local safety forces will offer

opinions with regard to the fire.”    Thereafter, appellee filed a motion for summary

judgment. Appellants filed a response to appellee’s motion for summary judgment.




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Appellee then submitted a reply to appellants’ response. Summary judgment in favor of

appellee was granted on July 24, 2013.

       {¶9}   Appellants filed a timely appeal and assert three assignments of error.

Their first assignment of error states:

       {¶10} “The trial court committed prejudicial error in granting defendant-

appellee’s motion for summary judgment, finding that the doctrine of res ipsa loquitur

does not apply.”

       {¶11} Pursuant to Civil Rule 56(C), summary judgment is proper if:

              (1) No genuine issue as to any material fact remains to be litigated;
              (2) The moving party is entitled to judgment as a matter of law; and
              (3) It appears from the evidence that reasonable minds can come
              to but one conclusion, and viewing such evidence most strongly in
              favor of the party against whom the motion for summary judgment
              is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶12} To prevail on a motion for summary judgment, the moving party has the

initial burden to affirmatively demonstrate that there is no genuine issue of material fact

to be resolved in the case, relying on evidence in the record. Dresher v. Burt, 75 Ohio

St.3d 280, 292 (1996). Pursuant to Civ.R. 56(C), the evidence to be considered is

limited to the “pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action * * *.”   If this initial burden is met, the nonmoving party then bears the

reciprocal burden to set forth specific facts which prove there remains a genuine issue

to be litigated, pursuant to Civ.R. 56(E). Dresher, supra, 293.

       {¶13} An appellate court reviews an award of summary judgment de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Thus, the court of appeals



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applies “the same standard as the trial court, viewing the facts in the case in a light most

favorable to the non-moving party and resolving any doubt in favor of the non-moving

party.” Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

       {¶14} In their first assignment of error, appellants assert that the trial court erred

in granting appellee’s motion for summary judgment, finding that the doctrine of res ipsa

loquitur does not apply.

       {¶15} “[R]es ipsa loquitur is a rule of evidence which permits the trier of fact to

infer negligence on the part of the defendant from the circumstances surrounding the

injury to the plaintiff.” Hake v. George Wiedemann Brewing Co., 23 Ohio St.2d 65, 66

(1970). “The doctrine of res ipsa loquitur is not a substantive rule of law furnishing an

independent ground for recovery * * *. The doctrine of res ipsa loquitur does not alter

the nature of plaintiff’s claim in a negligence action; it is merely a method of proving the

defendant’s negligence through the use of circumstantial evidence.” Jennings Buick,

Inc. v. Cincinnati, 63 Ohio St.2d 167, 169-170 (1980).

              To warrant application of the rule, a plaintiff must adduce evidence
              in support of two conclusions: (1) That the instrumentality causing
              the injury was, at the time of the injury, or at the time of the creation
              of the condition causing the injury, under the exclusive
              management and control of the defendant; and (2) that the injury
              occurred under such circumstances that in the ordinary course of
              events it would not have occurred if ordinary care had been
              observed.

Hake at 66-67.

       {¶16} Whether this burden has been met is a question of law to be determined

initially by the trial court. Id. at 67. Analyzing the facts of this case, appellant is unable

to meet either prong.      First, even when reviewing the evidence most favorable to

appellants and resolving any doubt in favor of appellants, there is no evidence that the



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instrumentality that caused the injury was under the exclusive management and control

of appellee. Appellee did not have exclusive control over the kennel area. There had

been some smoke damage after the first fire, but the vast majority of damage was

incurred as a result of the second fire. The day before the first fire, appellants cleaned

the kennel area, which included appellants performing some metal-cutting activities with

a torch. Finally, both appellee and appellants stored various items in the portion of the

building not covered by the lease. Based on the evidentiary material in the record, it

cannot be said that appellee had exclusive control over the kennel area.

      {¶17} Under the second prong, application of res ipsa loquitur requires that the

injury occurred under circumstances that, in the ordinary course of events, would not

have occurred if ordinary care had been observed. Appellants did not put forth any

evidence besides their own unsubstantiated beliefs about the cause of the fire.

Appellants were unable to produce an expert report to establish the cause of the fire.

The two experts that were independently retained to review the scene were unable to

make a determination on the fire’s cause. Without knowing the cause of the fire, even

when viewing the evidence most favorable to appellants, it is impossible to conclude

that appellee was negligent and that the injury would not have occurred if ordinary care

had been taken by appellee.

      {¶18} The application of res ipsa loquitur is not appropriate in this case, given

the complete lack of evidence about the cause of the fire and the fact that the area in

question was not in the exclusive control of appellee.

      {¶19} Accordingly, appellants’ first assignment of error is not well taken.

      {¶20} Appellants’ second assignment of error states:




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       {¶21} “The trial court committed prejudicial error in granting defendant-

appellee’s motion for summary judgment by failing to impose a remedy for the

defendant-appellees spoliation of evidence.”

       {¶22} Under appellants’ second assignment of error, they argue the trial court

erred by failing to recognize that the destruction of an electrical box by appellee’s expert

witness should have resulted in an inference that, had the electrical box been

examined, it would have provided evidence favorable to appellants’ case. Essentially,

appellants are arguing that the trial court erred by failing to remedy what, in their view,

amounted to spoliation.     However, the trial court held that spoliation did not occur

because “[t]here was no impending or threatened litigation at the time.” Accordingly, the

trial court ruled it had no duty to fashion a remedy for a violation it found had not

occurred.

       {¶23} Initially, we emphasize that appellants neither moved for sanctions for

spoliation of evidence nor to amend their complaint once they became aware that the

electrical box was not retained. Rather, they merely raised the issue in response to

appellee’s motion for summary judgment. Nevertheless, the trial court addressed the

issue in its summary judgment order and thus appears to have construed appellants’

argument as a motion for sanctions.

       {¶24} “A trial court enjoys considerable discretion in the regulation of discovery

proceedings.” Penix v. Avon Laundry & Dry Cleaners, 8th Dist. Cuyahoga No. 91355,

2009-Ohio-1362, ¶30. Thus, the trial court’s decision that “spoliation does not apply”

will not be reversed absent a showing of a clear abuse of discretion. Id. An abuse of

discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decision-




                                             7
making.’”   State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62,

quoting Black’s Law Dictionary 11 (8 Ed.Rev.2004).

       {¶25} Spoliation of evidence occurs when the proponent establishes the

following three prongs:

              [T]hat (1) the evidence is relevant; (2) that the offending party’s
              expert had an opportunity to examine the unaltered evidence; and
              (3) that, even though the offending party was put on notice of
              impending litigation, this evidence was intentionally or negligently
              destroyed or altered without providing an opportunity for inspection
              by the proponent.

              If the court finds that relevant evidence was, indeed, destroyed,
              then the court has the power to fashion a just remedy.

Simeone v. Girard City Bd. of Educ., 171 Ohio App.3d 633, 648 (11th Dist.2007)

(citations omitted).

       {¶26} The trial court disposed of any argument regarding spoliation of evidence

on the third prong: in its judgment entry granting appellee’s motion for summary

judgment, the trial court determined that “there was no impending or threatened

litigation at the time.” The electrical box was discarded before there was any threat of

litigation; indeed, it was discarded months before the complaint in this case was filed.

Moreover, appellants are unable to show that appellee intentionally or negligently

discarded the electrical box. Finally, the electrical box was not discarded by appellee,

but by an investigator hired by appellee’s insurance carrier. There is no evidence in the

record that appellee asked that the electrical box be either retained or destroyed. As

such, there was no willful destruction of evidence by appellee designed to disrupt

appellants’ case.




                                           8
      {¶27} As appellants failed to establish the third prong of the test, it was not

necessary for the trial court to address the other two prongs. The trial court did not

abuse its discretion when it decided that spoliation was not a consideration in this case.

      {¶28} Appellants’ second assignment of error is not well taken.

      {¶29} Appellants’ third assignment of error states:

      {¶30} “The trial court committed prejudicial error in granting defendant-

appellee’s motion for summary judgment despite the fact that appellee’s violation of

Ohio Revised Code Section 5321.04 constituted negligence per se.”

      {¶31} In their final assignment of error, appellants argue that the trial court

incorrectly determined that summary judgment was appropriate when there was

sufficient evidence to support a negligence per se claim.         Specifically, appellants

suggest the evidence indicates that appellee, as a landlord, failed to maintain his

property as required by R.C. 5321.04 and that this failure resulted in damage to

appellants. This assignment of error is without merit because appellants submitted no

evidentiary material that indicated a violation of R.C. 5321.04 was the proximate cause

of the damage they suffered.

      {¶32} R.C. 5321.04 states, in 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;

             (3) Keep all common areas of the premises in a safe and sanitary
             condition;




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              (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 the landlord[.]

       {¶33} A violation of R.C. 5321.04 constitutes negligence per se, provided the

landlord’s failure to fulfill its duties was the cause of the injuries to the tenants.

Shroades v. Rental Homes, Inc., 68 Ohio St.2d 20, 25 (1981), citing Schell v. DuBois,

94 Ohio St. 93 (1916); Patton v. Pennsylvania R.R. Co., 136 Ohio St. 159 (1939);

Grieser v. Huntington Natl. Bank, 176 Ohio St. 291 (1964).

              [N]egligence 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.

Sivit v. Vill. Green of Beachwood, 8th Dist. Cuyahoga No. 98401, 2013-Ohio-103, citing

Packman v. Barton, 12th Dist. Madison No. CA2009-03-009, 2009-Ohio-5282, citing

Turner v. Tiemeyer, 12th Dist. Clermont No. CA95-08-053, 1996 Ohio App. LEXIS 428,

*3 (Feb. 12, 1996).

       {¶34} In this case, appellant provided no evidence that a violation of the statute

by appellee was the proximate cause of the fire. In their depositions, appellants state

many issues they had with the general upkeep of the property, including the electrical

system. However, appellants put forth no evidence of a causal link between any of

these concerns and the fire. This differentiates the facts at hand to those in Sivit, where

the plaintiff was able to show both causation and actual notice of the condition that was

a statutory violation. In Sivit, the owner of the building knew that the electrical system

was severely deficient and fire investigators were able to connect the fire to the faulty




                                            10
electrical system. Sivit at ¶18. Neither fire investigator retained in this case was able to

determine the cause of the fire or connect it to appellee’s conduct.

       {¶35} Additionally, appellants failed to put forth evidence that appellee had

notice of any violation. There is a well-founded and long-established notice requirement

under R.C. 5321.04. Renzi v. Hillyer, 11th Dist. Lake No. 2012-L-041, 2012-Ohio-5579,

¶19. There must first be recognition by the landlord of a violation before liability can be

imposed. Id., citing Sikora v. Wenzl, 88 Ohio St.3d 493, 496 (2000). In this case,

appellants notified appellee of several issues regarding the property they leased.

However, appellants failed to establish that any of those issues were causally

connected to the fire.

       {¶36} Accordingly, appellants’ third assignment of error is not well taken.

       {¶37} For the foregoing reasons, appellants’ three assignments of error are not

well taken, and the judgment of the Geauga County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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