[Cite as Wakefield v. John Russell Const. Co., 2010-Ohio-1294.]
                           STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

LOIS WAKEFIELD,                                        )
                                                       )
        PLAINTIFF-APPELLANT.                           )
                                                       )
VS.                                                    )          CASE NO. 09-JE-19
                                                       )
JOHN RUSSELL CONSTRUCTION CO.,                         )               OPINION
                                                       )
        DEFENDANT-APPELLEE.                            )

CHARACTER OF PROCEEDINGS:                              Civil Appeal from Court of Common
                                                       Pleas of Jefferson County, Ohio
                                                       Case No. 08CV605

JUDGMENT:                                              Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellant                                Attorney Jeffrey Orr Brown
                                                       2017 Sunset Boulevard
                                                       Steubenville, Ohio 43952

                                                       Attorney Dominic J. Bianco
                                                       120 Shirley Circle
                                                       Steubenville, Ohio 43952

For Defendant-Appellee                                 Attorney Matthew P. Mullen
                                                       Attorney John P. Maxwell
                                                       Krugliak, Wilkins, Griffiths & Dougherty
                                                       Co., L.P.A.
                                                       158 North Broadway
                                                       New Philadelphia, Ohio 44663

JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                       Dated: March 26, 2010
[Cite as Wakefield v. John Russell Const. Co., 2010-Ohio-1294.]
DONOFRIO, J.

        {¶1}     Plaintiff-appellant, Lois Wakefield, appeals from a Jefferson County
Common Pleas Court judgment granting summary judgment in favor of defendant-
appellee, John Russell Construction Company, on her negligence per se claim.
        {¶2}     On December 16, 2002, appellant was on her way to an AARP
luncheon meeting held at the JFK building in Steubenville.
        {¶3}     At the time, a trench existed in the city street that went around the front,
one side, and the back of the JFK building. Appellee had dug the trench as part of a
renovation project for the Jefferson Metropolitan Housing Authority. The trench was
approximately 12 inches wide and 16 to 18 inches deep.
        {¶4}     Appellant approached the trench and attempted to step over it.
However, instead of stepping over it onto the curb, she fell. Appellee sustained
injuries to her left arm that required a cast, two surgeries, and physical therapy.
        {¶5}     Appellant filed a complaint against appellee and the City of Steubenville
on September 30, 2008, asserting that the City failed to abate a nuisance and that
appellee was negligent per se in its failure to protect the trench in accordance with a
City ordinance. Appellant later dismissed her claim against the City.
        {¶6}     Appellee filed a motion for summary judgment, alleging no genuine
issue of material fact because appellant admitted in her deposition that she was
aware of the trench and decided to cross it. Therefore, appellee claimed the open
and obvious defense as well as assumption of the risk barred appellant’s claim.
        {¶7}     The trial court held a hearing on appellee’s motion. It determined that
appellee was entitled to summary judgment.
        {¶8}     Appellant filed a timely notice of appeal on May 19, 2009.
        {¶9}     Appellant raises a single assignment of error, which states:
        {¶10} “THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION
FOR SUMMARY JUDGMENT.”
        {¶11} In reviewing an award of summary judgment, appellate courts apply a
de novo standard of review. Cole v. Am. Industries & Resources Corp. (1998), 128
Ohio App.3d 546, 552. Thus, we shall apply the same test as the trial court in
                                                                                 -2-


determining whether summary judgment was proper. Civ.R. 56(C) provides that the
trial court shall render summary judgment if no genuine issue of material fact exists
and when construing the evidence most strongly in favor of the nonmoving party,
reasonable minds can only conclude that the moving party is entitled to judgment as
a matter of law. State ex rel. Parsons v. Flemming (1994), 68 Ohio St.3d 509, 511. A
“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc., Inc. (1995), 104 Ohio App.3d 598, 603, citing Anderson v.
Liberty Lobby, Inc. (1986), 477 U.S. 242, 247-248, 106 S.Ct. 2505.
       {¶12} Appellant argues this is a case of negligence per se, and therefore, the
open and obvious defense does not apply.          She contends that appellee violated
Section 901.05 of the Codified Ordinances of the City of Steubenville entitled
“Protection of Openings,” which provides:
       {¶13} “All openings and obstructions, as well as the area where the sidewalk
is removed, shall be carefully guarded, protected or barricaded at all times, * * *.
       {¶14} “Excavations left unattended during non-working hours shall be
protected by one of the following methods:
       {¶15} “(a) Backfilled to level with surrounding surface with material acceptable
to the City Engineer,
       {¶16} “(b) Covered with steel plate(s) of sufficient size and design to support
expected traffic loads, or
       {¶17} “(c) Other method acceptable to the City Engineer.”
       {¶18} Appellant argues that the evidence clearly indicated that appellee did
not comply with any of the three alternatives listed in Section 901.05 and that her fall
and subsequent injuries were a direct result of appellee’s noncompliance.
       {¶19} Appellant asserts that where a legislative enactment imposes a specific
duty for the safety of others, the failure to perform that duty constitutes negligence
per se. Appellant further argues that the rim of the trench, on which she stepped,
gave way and was a dangerous condition that was not observable by sight.
       {¶20} A negligence claim requires the plaintiff to prove: (1) duty; (2) breach of
                                                                                 -3-


duty; (3) causation; and (4) damages. Anderson v. St. Francis-St. George Hosp., Inc.
(1996), 77 Ohio St.3d 82, 84.
       {¶21} The concept of negligence per se allows the plaintiff to prove the first
two prongs of the negligence test, duty and breach of duty, simply by 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, at ¶15. Where
the statute imposes a specific duty for the safety of others, failure to perform that duty
is negligence per se. Chambers v. St. Mary's School (1998), 82 Ohio St.3d 563, 565,
citing Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367.
       {¶22} Importantly, the Ohio Supreme Court has held that violations of
ordinances can constitute negligence per se:
       {¶23} “‘The distinction between negligence and ‘negligence per se’ is the
means and method of ascertainment. The first must be found by the jury from the
facts, the conditions and circumstances disclosed by the evidence; the latter is a
violation of a specific requirement of law or ordinance, the only fact for determination
by the jury being the commission or omission of the specific act inhibited or
required.’” (Emphasis added.) Chambers, 82 Ohio St.3d at 565, quoting Swoboda v.
Brown (1935), 129 Ohio St. 512, 522.
       {¶24} Thus, the violation of a city ordinance, as appellant alleges in the
present case, can constitute negligence per se. See also Sabitov v. Graines, 177
Ohio App.3d 451, 2008-Ohio-3795, at ¶27.
       {¶25} In its judgment entry granting summary judgment to appellee, the trial
court did not analyze whether negligence per se was applicable in this case. It noted
that appellant acknowledged that she was aware of the trench, that she saw the
trench, and that she consciously decided to attempt to step over the trench. It further
noted that appellant was unable to state the cause of her fall, having stated once that
she lost her balance and another time that perhaps some of the asphalt crumbled.
The court found that appellant saw the trench and assumed the risk of stepping over
it and further that the trench was open and obvious.          Accordingly, it found that
                                                                              -4-


appellee was entitled to summary judgment.
      {¶26} The Ohio Supreme Court has recognized that when the General
Assembly has enacted statutes, the violations of which constitute negligence per se,
the open-and-obvious doctrine does not protect a defendant from liability. Lang, 122
Ohio St.3d at ¶15, citing Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, at
¶25; Chambers, 82 Ohio St.3d at 567-68.
      {¶27} The open-and-obvious doctrine provides that premises owners owe no
duty of care to people who enter their premises where there is an open and obvious
danger. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, at ¶14,
citing Sidle v. Humphrey (1963), 13 Ohio St.2d 45, paragraph one of the syllabus.
This is because “the open and obvious nature of the hazard itself serves as a
warning. Thus, the 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.
      {¶28} In Simmers, supra, the Ohio Supreme Court was called upon to
distinguish between the application of the open and obvious doctrine to claims
against landowners, or those who have an interest in the land, from claims against
non-landowners, or those persons who conduct activity on the land with the consent
of the landowner. In Simmers, the landowner, CSX, contracted with the construction
company, Bently, to repair a bridge owned by CSX. Bently created a hole in the
bridge. The plaintiff fell through the hole and was injured. He filed suit against both
CSX and Bently.      The trial court granted summary judgment in favor of both
defendants based on the ground that the hole was an open and obvious danger.
      {¶29} The Supreme Court reversed the judgment holding:
      {¶30} “An independent contractor who creates a dangerous condition on real
property is not relieved of liability under the doctrine which exonerates an owner or
occupier of land from the duty to warn those entering the property concerning open
and obvious dangers on the property.” Id. at the syllabus.
      {¶31} In so holding, the Court stated, “We are not persuaded to extend the
                                                                              -5-


‘open and obvious' doctrine to persons who conduct activity with the consent of the
landowner but who themselves have no property interest in the premises.” Id. at 645.
The Court went on to hold that because the independent contractor at issue had no
property interest in the subject premises, the proper test to apply was a negligence
test. Id. As such, the court stated that the question of whether the hazard was an
open and obvious danger would become relevant in a comparative negligence
analysis:
       {¶32} “In the law of negligence, an ‘open and obvious' danger can also place
affirmative defenses at issue. These would be (1) contributory negligence, and (2)
assumption of risk. * * *
       {¶33} “In essence, Bently argues that Stephen was negligent in failing to
protect himself from an open and obvious danger and that his negligence proximately
caused his own injuries. A plaintiff's contributory negligence, however, does not
automatically bar recovery for damages directly and proximately caused by
defendant's negligence. R.C. 2315.19(A)(2).
       {¶34} “Issues of comparative negligence are for the jury to resolve unless the
evidence is so compelling that reasonable minds can reach but one conclusion. * * *
Under the comparative negligence statute, the factfinder apportions the percentage
of each party's negligence that proximately caused the plaintiff's damages. * * * ”
(Citations omitted.) Id. at 646.
       {¶35} In the case at bar, there is no allegation that appellee owns the city
street where it was working.       Appellee was employed as a contractor to do
construction work there. (Russell dep. 46-48). The trial court failed to recognize that
the open-and-obvious doctrine applies only to landowners and does not apply to
independent contractors. Thus, the court should not have applied the open-and-
obvious doctrine in the manner it did.
       {¶36} If in fact appellee is found to have been negligent per se, then the
open-and-obvious doctrine may still be utilized in a comparative negligence analysis
as set out in Simmers. This is because a finding of negligence does not equal a
                                                                                    -6-


finding of liability as the defendant may still raise applicable defenses such as
comparative negligence. See Dawson v. McNeal, 10th Dist. No. 03AP-396, 2004-
Ohio-107, at ¶12.
       {¶37} Furthermore, genuine issues of material fact surround whether appellee
violated the ordinance and likewise whether appellee was negligent per se.
       {¶38} Appellee’s vice president, Douglas Russell, gave a deposition. Russell
stated that the trench where appellant fell was approximately 12 inches wide and 16
to 18 inches deep. (Russell dep. 80). He stated that during the time the trench was
in front of the JFK building, appellee did not cover it with a steel plate or plywood.
(Russell dep. 104). He stated that appellee’s practice is to use barricades. (Russell
dep. 83-84). He did not specifically comment one way or the other as to whether the
trench may have been filled in with fill material on the day of appellant’s fall.
       {¶39} Appellant, on the other hand, stated that she did not see any
barricades. (Wakefield dep. 37, 41). She also stated that the trench was not filled in.
(Wakefield dep. 45).
       {¶40} Based on Russell’s and Wakefield’s depositions, an issue of fact exists
as to whether appellee violated the city ordinance. Russell indicated that the trench
area was barricaded off. Appellant stated that it was not. Furthermore, if the area
was indeed barricaded off, this method would have had to have been acceptable to
the City Engineer in order to bring it in compliance with the ordinance.             Thus,
summary judgment was not proper given these genuine issues of material fact.
       {¶41} Genuine issues of material fact also exist here as to what was the
proximate cause of appellant’s fall. In her deposition appellant stated:
       {¶42} “Q. Okay. And can you describe what happened as you were trying to
step over that trench?
       {¶43} “A. I lost my balance and fell.
       {¶44} “Q. So, when you looked down at that trench - -
       {¶45} “A. I thought I could step over it.
       {¶46} “Q. Okay. So, just so I’m clear, you didn’t step down onto the gravel
                                                                            -7-


area of the trench?
      {¶47} “A. No.
      {¶48} “Q. Okay. So - -
      {¶49} “A. I thought, perhaps, maybe some of the asphalt may have crumbled
under my foot to throw me off balance.
      {¶50} “Q. That’s what you - - do you still think that?
      {¶51} “A. I’m not sure.
      {¶52} “Q. Okay. When you lost your balance, is that when your foot partially
got on top of the curb?
      {¶53} “A. I don’t know.
      {¶54} “Q. Okay. You can’t remember - -
      {¶55} “A. I can’t remember.
      {¶56} “Q.- - at what point you actually lost balance as you were stepping
across?
      {¶57} “A. It happened so fast.” (Wakefield dep. 46-48).
      {¶58} Helen Bush, who was walking behind appellant, also gave a deposition.
Bush described appellant’s fall as follows:
      {¶59} “Q.       Did you notice anything dangerous with the curb as you were
walking toward it?
      {¶60} “A. No.
      {¶61} “Q. Do you recall thinking it was dangerous after Mrs. Wakefield fell?
      {¶62} “A. No.
      {¶63} “Q. And is that because it was just - - just a curb?
      {¶64} “A. I couldn’t see anything there. I couldn’t know why. There was just a
sidewalk and a curb.
      {¶65} “Q. When you say you don’t know why, you’re referring to - - that you
don’t know why Mrs. Wakefield fell?
      {¶66} “A. No, I didn’t say that.
      {¶67} “Q. Okay. Trust me, I don’t want to mischaracterize your testimony.
                                                                               -8-


So what did you mean by that?
       {¶68} “A. We walked across the street. She stepped up and she went down.
I was behind her and I stepped up on the curb, which was right next to the sidewalk.
There was nothing there. There was no reason for me to fall. There was no reason
to know why she fell.” (Bush dep. 32-43).
       {¶69} Additionally, appellant provided the affidavit of professional engineer
Richard Hughes, who stated that appellant’s fall and subsequent injuries were the
direct result of the trench being uncovered and not barricaded. (Hughes aff. ¶4a).
       {¶70} Proximate cause is generally an issue for the jury because it involves a
question of fact. Morris v. Morris, 9th Dist. No. 21350, 2003-Ohio-3510, at ¶21. Here
it is unclear exactly what caused appellant to fall. Consequently, this question is best
left for a jury to determine.
       {¶71} Because genuine issues of material fact exist as to whether appellee
violated the city ordinance and whether any violation of the ordinance was the
proximate cause of appellant’s fall, summary judgment was not proper in this case.
Accordingly, appellant’s sole assignment of error has merit.
       {¶72} For the reasons stated above, the trial court’s judgment is hereby
reversed and the matter is remanded to the trial court for further proceedings
pursuant to law and consistent with this opinion.


Vukovich, P.J., concurs.

DeGenaro, J., concurs.
