[Cite as McHugh v. Zaatar, 2015-Ohio-143.]


STATE OF OHIO                   )                     IN THE COURT OF APPEALS
                                )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                )

AMY MCHUGH                                            C.A. No.     14CA010591

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JOE ZAATAR                                            COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   12CV178208

                               DECISION AND JOURNAL ENTRY

Dated: January 20, 2015



        MOORE, Judge.

        {¶1}    Plaintiff-Appellant, Amy McHugh (“Tenant”), now appeals from the judgment of

the Lorain County Court of Common Pleas, granting summary judgment in favor of Defendant-

Appellee, Joe Zaatar (“Landlord”). This Court reverses.

                                               I.

        {¶2}    In August 2009, Tenant leased a home from Landlord and paid him an $850

security deposit. There is no dispute that the steps leading to the basement of the home were not

equipped with a handrail and that, at some point during her tenancy, Tenant paid a company to

clean and repair the basement due to flooding. There is also no dispute that Landlord kept

Tenant’s security deposit when she ended her lease.

        {¶3}    According to Tenant, Landlord ignored her request to install a handrail and, in

January 2011, she fell down the basement steps and sustained serious injuries.           Further,

according to Tenant, Landlord never reimbursed her for the basement cleaning and repair work
                                                2


she had done with Landlord’s approval.                Tenant brought suit against Landlord for

negligence/negligence per se as a result of her injuries and for oral contract/unjust enrichment as

a result of the cleaning and repair work she paid to have done after the basement flooded.

Further, she pleaded a statutory cause of action based on Landlord’s failure to return her security

deposit. Landlord filed an answer and discovery commenced. After discovery concluded, both

parties filed motions for summary judgment.

       {¶4}    Landlord moved for summary judgment on all of Tenant’s claims. Meanwhile,

Tenant filed a motion for partial summary judgment on the duty and breach elements of her tort

claim. She argued that, by failing to install a statutorily-mandated handrail on her basement

steps, Landlord had committed negligence per se. Both parties filed briefs in opposition to

summary judgment, and Landlord filed a reply to Tenant’s brief in opposition. Subsequently, the

court granted Landlord’s motion for summary judgment on each of Tenant’s counts and denied

Tenant’s partial motion for summary judgment.

       {¶5}    Tenant now appeals from the trial court’s judgment and raises five assignments of

error for our review.    For ease of analysis, we rearrange and consolidate several of the

assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT GRANTED LANDLORD’S MOTION
       FOR SUMMARY JUDGMENT BECAUSE HIS MOTION WAS NOT
       SUPPORTED BY EVIDENTIARY MATERIAL AS REQUIRED BY OHIO
       CIV.R. 56(C).

       {¶6}    In her first assignment of error, Tenant argues that the court erred by granting

Landlord’s motion for summary judgment because Landlord did not support his motion with any

Civ.R. 56(C) evidence. We agree.
                                                  3


       {¶7}    Pursuant to Civ.R. 56(C), summary judgment is proper only 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). The summary judgment movant

bears the initial burden of informing the trial court of the basis for the motion and pointing to

parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75

Ohio St.3d 280, 292-93 (1996). “If the moving party fails to satisfy its initial burden, the motion

for summary judgment must be denied.” Id. at 293. Only if the moving party fulfills his or her

initial burden does the burden shift to the nonmoving party to prove that a genuine issue of

material fact exists. Id.

       {¶8}    “Civ.R. 56(C) limits the types of evidentiary materials that a party may present

when seeking or defending against summary judgment.” Committe v. Rudolchick, 9th Dist.

Lorain No. 12CA01086, 2013-Ohio-2373, ¶ 11. The rule provides that

       [s]ummary 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.

(Emphasis added.)      Civ.R. 56(C).    “[I]f the opposing party fails to object to improperly

introduced evidentiary materials, the trial court may, in its sound discretion, consider those

materials in ruling on the summary judgment motion.” Wolford v. Sanchez, 9th Dist. Lorain No.

05CA008674, 2005-Ohio-6992, ¶ 20, quoting Christe v. GMS Mgt. Co., Inc., 124 Ohio App.3d

84, 90 (9th Dist.1997). “If, however, the opposing party objects to the materials on the basis that

they have not been properly introduced under Civ.R. 56(C), the trial court may not rely upon
                                                 4


them in ruling on the motion for summary judgment.” Committe at ¶ 11. Accord King v. Rubber

City Arches, L.L.C., 9th Dist. Summit No. 25498, 2011-Ohio-2240, ¶ 19.

       {¶9}    “[A] deposition transcript must be authenticated before it can be considered as

legally acceptable evidence for summary judgment purposes.”              Id.   Moreover, “[e]very

deposition intended to be presented as evidence must be filed at least one day before the day of

trial or hearing * * *.” Civ.R. 32(A). “[T]he rule clearly makes filing of the depositions

mandatory.” Nickey v. Brown, 7 Ohio App.3d 32, 35 (9th Dist.1982).

       {¶10} In support of his motion for summary judgment, Landlord relied upon two

exhibits. The first exhibit was a copy of Tenant’s lease agreement. The second was a copy of

Tenant’s deposition. Unlike the other depositions in the matter, Tenant’s deposition was never

separately filed in the action. Instead, Landlord only attached a copy of it to his motion.

       {¶11} In her brief in opposition to summary judgment, Tenant argued that Landlord’s

motion should fail as a matter of law because he did not support it with any Civ.R. 56(C)

evidence. She argued that her deposition was not properly before the court because it had never

been separately filed in the matter. She also argued that Landlord had failed to support his

evidence with an affidavit. Consequently, it was Tenant’s position that Landlord had failed to

meet his initial Dresher burden. See Dresher, 75 Ohio St.3d at 292-93.

       {¶12} Landlord filed a reply to Tenant’s brief in opposition, but did not cause her

deposition to be separately filed with the court. Instead, he argued that the transcript “has not

been filed because [Tenant] did not waive signature and thus she must sign the transcript before

it can be filed.” He noted that he attached a copy of the deposition to his summary judgment

motion “for the Court’s convenience” and that Tenant’s deposition “will be filed with the Court

as soon as [she] signs it.” The deposition, however, was never filed with the court.
                                                 5


       {¶13} The trial court did not address Tenant’s argument that Landlord had failed to

present it with any Civ.R. 56(C) evidence. In granting Landlord’s motion, however, the court

specifically noted that it had considered Tenant’s deposition. Tenant argues that the court erred

by doing so because the deposition did not comply with Civ.R. 56(C). She maintains that the

court should have denied Landlord’s motion as a matter of law because he failed to support it

with any Civ.R. 56(C) evidence. We agree.

       {¶14} Contrary to Landlord’s argument on appeal, he was not prevented from filing

Tenant’s deposition in the court below. Civ.R. 30(C) affords a deponent thirty days within

which to review and sign his or her deposition. The rule provides that

       [i]f the deposition is not signed by the witness during the period prescribed in this
       division, the officer [before whom the deposition was taken] shall sign it and state
       on the record the fact of the waiver or of the illness or absence of the witness or
       the fact of the refusal to sign together with the reason, if any, given therefor; and
       the deposition may then be used as fully as though signed, unless on a motion to
       suppress the court holds that the reasons given for the refusal to sign require
       rejection of the deposition in whole or in part.

Civ.R. 30(E). Landlord, therefore, had the ability to secure the filing of the deposition in the

absence of Tenant’s signature. He failed to do so, so Tenant’s deposition was not proper Civ.R.

56(C) evidence. See Civ.R. 32(A); Civ.R. 56(C). See also Rogers v. Benefit Services Agency of

Ohio, Inc., 9th Dist. Summit No. 17374, 1996 WL 122088, *1 (Mar. 20, 1996). Because Tenant

specifically objected to the introduction of the deposition on the basis that it was improper Civ.R.

56(C) evidence, the court could not consider it in ruling on Landlord’s motion for summary

judgment. See Committe, 2013-Ohio-2373, at ¶ 11; King, 2011-Ohio-2240, at ¶ 19. See also

Nickey, 7 Ohio App.3d at 36, citing Civ.R. 32(D)(4) (objection to filing of deposition construed

as motion to suppress deposition under Civ.R. 32(D)(4)).
                                                 6


        {¶15} Absent Tenant’s deposition, the only item Landlord attached to his summary

judgment motion was Tenant’s lease agreement. Yet, the lease agreement was not the type of

evidence listed in Civ.R. 56(C), and Landlord failed to incorporate it by way of a properly

framed affidavit.     See Civ.R. 56(C) (limiting summary judgment evidence to “pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence,

and written stipulations of fact”); Skidmore & Assoc. Co. L.P.A. v. Southerland, 89 Ohio App.3d

177, 179 (9th Dist.1993) (“The proper procedure for introducing evidentiary matter not

specifically authorized by Civ.R. 56(C) is to incorporate it by reference in a properly framed

affidavit pursuant to Civ.R. 56(E).”). Tenant also specifically argued in her brief in opposition

that Landlord’s evidence did not comply with Civ.R. 56(C), in part, because it was not supported

by an affidavit. Thus, the trial court also could not consider the lease agreement in ruling on

Landlord’s motion for summary judgment. See Committe at ¶ 11; King at ¶ 19.

        {¶16} As previously set forth, a summary judgment movant bears the initial burden of

informing the trial court of the basis for the motion and pointing to parts of the record that show

the absence of a genuine issue of material fact. Dresher, 75 Ohio St.3d at 292-93. “If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied.” Id. at 293. Here, Landlord failed to meet his initial burden under Dresher. He only

supported his motion with evidence that the court could not consider. Thus, he did not point to

any evidence to demonstrate the absence of a genuine issue of material fact. Because Landlord

failed to satisfy his initial Dresher burden, the burden never shifted to Tenant, and the trial court

erred by granting Landlord’s motion for summary judgment. Thus, Tenant’s first assignment of

error is sustained.
                                                7


                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERR (sic) WHEN IT GRANTED LANDLORD’S
       MOTION FOR SUMMARY JUDGMENT BY CONCLUDING THAT HIS
       NEGLIGENCE IN FAILING TO INSTALL A HANDRAIL AS REQUIRED * *
       * BY ELYRIA CODIFIED ORD. § 1305.01 WAS EXCUSED BECAUSE THE
       MISSING HANDRAIL CONSTITUTED AN OPEN AND OBVIOUS DEFECT.

                               ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED WHEN IT GRANTED LANDLORD’S MOTION
       FOR SUMMARY JUDGMENT BY CONCLUDING THAT TENANT FAILED
       TO PROVE THE MISSING HANDRAIL PROXIMATELY CAUSED HER
       INJURY.

                                ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED WHEN IT GRANTED LANDLORD’S MOTION
       FOR SUMMARY JUDGMENT FINDING THAT NO LEGITAMATE (sic)
       QUESTION OF FACT EXISTED ON THE CLAIMS FOR FAILURE TO
       RETURN HER SECURITY DEPOSIT AND UNJUST ENRICHMENT.

       {¶17} In her second, fourth, and fifth assignments of error, Tenant offers several

additional arguments as to why the court erred by granting Landlord’s motion for summary

judgment. Based on our resolution of Tenant’s first assignment of error, her second, fourth, and

fifth assignments of error are moot, and we decline to address them. See App.R. 12(A)(1)(c).

                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT DENIED TENANT’S MOTION FOR
       SUMMARY JUDGMENT BY CONCLUDING THAT LANDLORD’S
       NEGLIGENCE IN FAILING TO INSTALL A HANDRAIL AS REQUIRED BY
       ELYRIA CODIFIED ORD. § 1305.01 WAS EXCUSED BECAUSE THE
       MISSING HANDRAIL CONSTITUTED AN OPEN AND OBVIOUS DEFECT.

       {¶18} In her third assignment of error, Tenant argues that the court erred when it denied

her partial motion for summary judgment.        She argues that she was entitled to summary

judgment on the duty and breach elements of her tort claim because Landlord committed

negligence per se. Because the trial court failed to address Tenant’s claim of negligence per se,
                                                 8


however, we must reverse and remand the matter for the court to consider her claim in the first

instance.

       {¶19} We incorporate the standard of review set forth in Tenant’s first assignment of

error. Thus, we examine the record to determine whether she demonstrated that there were no

genuine issues of material fact for trial, that she was entitled to judgment as a matter of law, and

that it appeared from the evidence that reasonable minds could only come to a conclusion in her

favor. Temple, 50 Ohio St.3d at 327.

       {¶20} “In order to succeed under an action for negligence, a plaintiff must show the

existence of a duty, a breach of that duty, and that the breach of that duty was the proximate

cause of the plaintiff’s injuries.” Galo v. Carron Asphalt Paving, Inc., 9th Dist. Lorain No.

08CA009374, 2008-Ohio-5001, ¶ 8, citing Chambers v. St. Mary’s School, 82 Ohio St.3d 563,

565 (1998). “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, ¶ 15. Negligence per se also functions as an exception to

the open and obvious doctrine because the doctrine “does not override statutory duties.” Id. at ¶

14.

       {¶21} With regard to the application of negligence per se, the Ohio Supreme Court has

drawn a distinction between statutory violations and administrative rule violations.

Administrative rule violations are admissible as evidence of negligence, but “do not create a per

se finding of duty and breach of duty * * *.” Id. at ¶ 21. That is because administrative rules do

not flow directly from the General Assembly and, as such, do not create duties that reflect public

policy. Id. at ¶ 18. They are “subordinate rules” that merely “expound upon public policy
                                                  9


already established by the General Assembly in the Revised Code.” (Internal quotations and

citations omitted.) Chambers, 82 Ohio St.3d at 567. Statutes, on the other hand, undergo a

rigorous legislative process and speak directly to public policy, as established by the General

Assembly. Id. at 566-567. “Where a legislative enactment imposes a specific duty for the safety

of others, failure to perform that duty is negligence per se.” Id. at 565.

       {¶22} “R.C. 5321.04(A) sets out various duties of a landlord.”          Harris-Coker v.

Abraham, 9th Dist. Summit No. 26053, 2012-Ohio-4135, ¶ 7. The statute requires a landlord

who is a party to a rental agreement to:

       (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 * * *.

R.C. 5321.04(A). “A landlord’s violation of the duties imposed by R.C. 5321.04(A)(1) or

5321.04(A)(2) constitutes negligence per se * * *.” Sikora v. Wenzel, 88 Ohio St.3d 493 (2000),

syllabus.

       {¶23} Tenant sought summary judgment on the duty and breach elements of her tort

claim, arguing that Landlord had committed negligence per se by failing to install a handrail on

the steps leading to her basement. In her complaint, Tenant alleged that her rental property was

“unsafe and failed to comply with applicable building codes including * * * no safety hand

railing on the basement stairs.” She further alleged that Landlord owed her “a duty to maintain

the premises in a safe manner and to safeguard her from known dangers and to comply with

applicable building codes.” Accordingly, while Tenant did not specifically cite R.C. 5321.04 in

her complaint, she set forth allegations relevant to R.C. 5321.04(A)(1) and (A)(2). See Harris-

Coker at ¶ 7.
                                                10


       {¶24} In her motion for summary judgment, Tenant specified that Landlord committed

negligence per se when he violated R.C. 5321.04(A)(1) and (A)(2). She also cited the sections of

the Elyria Codified Ordinance and Property Maintenance Code that Landlord had allegedly

violated by failing to install a handrail on her basement stairway. Further, she attached to her

motion an affidavit from Phil Lahetta, the City of Elyria’s Chief Building Official. In his

affidavit, Mr. Lahetta averred:

       3. A home located at 852 Fairwood Drive, Elyria, Ohio and rented as a dwelling
       on [the date of Tenant’s alleged injury] was governed by the 2003 International
       Property Maintenance Code which was adopted by the City of Elyria on March 7,
       2005 by Elyria Cod. Ord. § 1305.01;

       4. Section 306 of the Property Maintenance Code required a hand rail on all
       interior and exterior stairways that have four or more risers on [the date of
       Tenant’s alleged injury];

       5. There are no exceptions and the failure to install a handrail on a[]basement
       stairway consisting of four risers is a violation subject to fines and penalties.

Thus, Tenant set forth evidence in support of her negligence per se claim.

       {¶25} In response to Tenant’s motion for summary judgment, Landlord relied upon

Lang v. Holly Hill Motel, Inc. and argued that building code violations do not amount to

negligence per se. See Lang, 122 Ohio St.3d 120, 2009-Ohio-2495, at ¶ 20-21. Unlike the

plaintiff in Lang, however, Tenant did not rely strictly upon a building code violation to establish

negligence per se. She argued that Landlord’s actions violated section 5321.04 of the Revised

Code.1 The Ohio Supreme Court has recognized that a violation of either R.C. 5321.04(A)(1) or

(A)(2) constitutes negligence per se. Sikora, 88 Ohio St.3d 493 at syllabus. Accordingly, Lang

is distinguishable from the case at hand.




1
 We note that the plaintiff in Lang could not avail herself of R.C. 5321.04 because she and the
defendant did not have a landlord-tenant relationship.
                                                  11


       {¶26} The trial court determined that Tenant was not entitled to judgment because the

lack of a handrail on her basement steps constituted an open and obvious danger.              Yet,

negligence per se is an exception to the open and obvious danger doctrine. Lang at ¶ 15. If

Tenant proved negligence per se, then the open and obvious doctrine would not act as a bar to

her claim. “The trial court * * * failed to analyze the issue of negligence per se in its judgment

entry. Accordingly, we are compelled to reverse and remand the matter to the trial court to

consider the claim of negligence per se in the first instance.” Harris-Coker at ¶ 7. Tenant’s third

assignment of error is sustained on that basis.

                                                  III.

       {¶27} Tenant’s first and third assignments of error are sustained.          Her remaining

assignments of error are moot. The judgment of the Lorain County Court of Common Pleas is

reversed, and the cause is remanded for further proceedings consistent with the foregoing

opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                12


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CARLA MOORE
                                                     FOR THE COURT



BELFANCE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JOSEPH E. ROSENBAUM, Attorney at Law, for Appellant.

J. ALAN SMITH, Attorney at Law, for Appellee.
