[Cite as Arnett v. Mong, 2016-Ohio-2893.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            FAYETTE COUNTY




CHRISTINA M. ARNETT,                                 :

        Plaintiff-Appellant,                         :          CASE NO. CA2015-10-022

                                                     :                   OPINION
   - vs -                                                                 5/9/2016
                                                     :

CAROL J. MONG,                                       :

        Defendant-Appellee.                          :



         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                            Case No. CVH 20140215



George R. Oryschkewych, 6100 Oak Tree Blvd., Suite 200, Independence, Ohio 44131, for
plaintiff-appellant

David A. Caborn, 6265 Riverside Drive, Suite A, Dublin, Ohio 43017, for defendant-appellee



        HENDRICKSON, J.

        {¶ 1} Plaintiff-appellant, Christina Arnett, appeals from the decision of the Fayette

County Court of Common Pleas granting summary judgment in favor of defendant-appellee,

Carol Mong, in a negligence per se action. For the reasons outlined below, we affirm the

decision of the trial court.1



1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and place it on the
regular calendar for purposes of issuing this opinion.
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       {¶ 2} In February 2014, Arnett went to visit her mother-in-law who rented a residential

home owned by Mong. Although the steps leading to the home were partially covered in ice

and snow, Arnett initially entered the home without issue. Several minutes later, Arnett

exited the home using the same set of steps, but lost her footing and fell to the ground

causing the injuries that are the subject of this lawsuit.

       {¶ 3} After the fall, Arnett filed a negligence complaint against Mong to recover

damages. Following discovery, Mong moved for summary judgment on the basis that,

among other things, the condition was open and obvious. Arnett's response in opposition

specifically alleged that Mong was negligent per se because the gutter on the front of the

home caused an unnatural accumulation of ice on the front steps. The trial court granted

summary judgment in favor of Mong, a decision that Arnett now appeals, raising the following

assignment of error for review.

       {¶ 4} THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, BY GRANTING

SUMMARY JUDGMENT AGAINST PLAINTIFF/APPELLANT.

       {¶ 5} In her single assignment of error, Arnett alleges the trial court erred in granting

Mong's motion for summary judgment. We disagree.

       {¶ 6} This court reviews summary judgment decisions de novo, reviewing the trial

court's judgment independently and without deference to the trial court's determinations,

using the same standard in our review that the trial court should have employed. Ludwigsen

v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008, 2014-Ohio-5493, ¶ 8.

Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine

issue of any material fact, (2) the moving party is entitled to judgment as a matter of law, and

(3) the evidence submitted can only lead reasonable minds to a conclusion which is adverse

to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-70

(1998).
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        {¶ 7} The moving party bears the initial burden of informing the court of the basis for

the motion and demonstrating the absence of a genuine issue of material fact. Robinson v.

Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 9. Once this burden is

met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is

some genuine issue of material fact yet remaining for the trier of fact to resolve. Id. In

determining whether a genuine issue of material fact exists, the evidence must be construed

in favor of the nonmoving party. Vanderbilt v. Pier 27, L.L.C., 12th Dist. Butler No. CA2013-

02-029, 2013-Ohio-5205, ¶ 8.

        {¶ 8} Initially, we note that Arnett did not specifically reference a violation of R.C.

5321.04(A) in her complaint, but did refer to the statute in her brief in opposition to summary

judgment. As noted by our decision in Base-Smith v. Lautrec, Ltd., 12th Dist. Butler No.

CA2013-07-115, 2014-Ohio-349, "Ohio law does not require negligence per se to be pled

with particularity because negligence and negligence per se are closely intertwined concepts

and Ohio's Civ.R. 8 requires only notice pleading." Id. at ¶ 4, fn. 2; Gress v. Wechter, 6th

Dist. Huron No. H-12-023, 2013-Ohio-971. Therefore, we find Arnett's negligence per se

claim was sufficiently raised below.

             Negligence Per Se Standard and the Open and Obvious Defense

        {¶ 9} The trial court found that the ice and snow was open and obvious and granted

summary judgment in favor of Mong.2 Arnett argues her claim is based upon negligence per

se, not common law negligence, therefore, the open and obvious defense is inapplicable.

Appellant is correct in noting that the open and obvious doctrine is inapplicable to claims for

negligence per se because of the Ohio Supreme Court's decision in Robinson v. Bates, 112



2. Although the trial court granted Mong's motion for summary judgment based upon the open and obvious
defense, it is not clear from the trial court's decision whether it determined appellant only properly raised a
negligence claim and failed to sufficiently raise a negligence per se claim or whether it improperly applied the
open and obvious defense to a negligence per se claim.
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Ohio St.3d 17, 2006-Ohio-6362. In that case, the Court held that a negligence per se claim

predicated upon a landlord's duty to repair cannot be defeated merely because the danger

that caused the plaintiff's injury was open and obvious. Id. at ¶ 25. See also Base-Smith,

2014-Ohio-349, ¶ 20, fn. 4-5. Accordingly, we note that the open and obvious defense only

applies to Arnett's common law negligence claims.

       {¶ 10} Arnett alleges that her fall was caused by an unnatural accumulation of ice due

to the defective condition of the gutter, which amounted to a violation of statutory duties.

Specifically, Arnett claims Mong violated R.C. 5321.04 which provides:

              (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;

              ***
       {¶ 11} A violation of the statute that sets forth specific duties constitutes negligence

per se. Id. at ¶ 22. In a negligence per se action, "proof of a landlord's violation of the statute

dispenses with the plaintiff's burden to establish the existence of a duty and the breach of

that duty." Butler v. Wyndtree Housing Ltd. Partnership, 12th Dist. Butler No. CA2011-03-

056, 2012-Ohio-49, citing Allstate Ins. Co. v. Henry, 12th Dist. Butler No. CA2006-07-168,

2007-Ohio-2556, ¶ 10; Chambers v. St. Mary's School, 82 Ohio St.3d 563, 656 (1998).

However, negligence per se does not equate to liability per se, as negligence per se does not

dispense with the plaintiff's obligation to prove the landlord's breach was the proximate cause

of the injury, nor does it remove a plaintiff's obligation to prove the landlord received actual or

constructive notice of the condition causing the statutory violation. Id.; Base-Smith at ¶ 21

("[n]egligence per se does not equate to liability per se"); Mann v. Northgate Investors, LLC,


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                                                                                    Fayette CA2015-10-022

10th Dist. Franklin No. 11AP-684, 2012-Ohio-2871, ¶ 25. Thus, to establish a negligence per

se claim, Arnett was required to show: (1) a violation of a statute, (2) the violation of the

statute proximately caused her injuries, and (3) that Mong knew or should have known of the

defective condition.

        {¶ 12} Based on our review of the evidence, we find the trial court did not err in

granting summary judgment in favor of Mong as Arnett has failed to establish that Mong

violated R.C. 5321.04(A). Furthermore, Arnett also failed to establish that the violation

proximately caused her injuries.

                                      Violation of Statutory Duties

        {¶ 13} First, with respect to the statutory violation requirement, the only instances in

which Arnett has addressed allegations of a statutory violation are contained in her motion in

opposition to summary judgment.3 In her deposition, Arnett stated that she observed the

snow and ice condition on the front of the steps. Arnett thought ice had unnaturally

accumulated because the gutter was damaged and "[t]here was a hole in it." In addition, the

affidavit of Arnett's mother-in-law stated:

                 2. Affiant further says that when she moved in, she notified her
                 landlord * * * that the gutter on the front of the house was
                 sagging, and that it needed to be cleaned out, and that when it
                 rained, water would overflow over the sagging portion of the
                 gutter onto the front stairs and bushes below.

                 3. Affiant further says that neither * * * [landlords] * * *, nor
                 anyone on their behalf ever repaired the sagging gutter.

                 4. Affiant further says that, due to safety concerns, she had her
                 son repair the sagging gutter in 2014.

                 5. Affiant further says that when the gutter overflowed during the
                 cold weather, an unnatural accumulation of ice would form on

3. The summary judgment evidence presented to the trial court for consideration consisted of Arnett's
deposition, and affidavit from Arnett's mother-in-law, along with the affidavits of Mong, and property manager
Jack Cartwright. The record also contains a photograph of ice on the front steps taken "within a day or two" of
the slip and fall incident, but does not contain any photographs of the gutter or its alleged condition as stated in
Arnett's appellate brief.
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                her front stairs.

         {¶ 14} As to a violation of R.C. 5321.04(A)(1), Arnett did not present any evidence that

Mong failed to comply with applicable building, housing, health or safety codes.4 Arnett, in

her brief in opposition to summary judgment, presented the legal principle that a landlord

owes the same duty to a tenant's guest as the landlord owes the tenant and then summarily

stated "[t]he improper maintenance of gutters violates both sections of (1) and (2) of R.C.

5321.04. As such, given notice to the landlord, such violations constitute negligence per se."

However, Arnett failed to cite any applicable building, housing, health or safety code to

support her allegations. As a result, we find that Arnett failed to establish a violation of R.C.

5321.04(A)(1).

         {¶ 15} Next, Arnett argues Mong violated R.C. 5321.04(A)(2), which requires a

landlord to make all repairs and take such action as is reasonably necessary to put and keep

the premises in a fit and habitable condition. In Gress v. Wechter, 6th Dist. Huron No. H-12-

023, 2013-Ohio-971, the Sixth District Court of Appeals analyzed R.C. 5321.04(A)(2) and

noted:

                Appellant also maintains that the trial court erred in entering
                summary judgment with respect to R.C. 5321.04(A)(2), which, as
                previously noted, requires a landlord to "[m]ake all repairs and do
                whatever is reasonably necessary to put and keep the premises
                in a fit and habitable condition." Under 5321.04(A)(2), a plaintiff
                must first establish that a defective condition exists on the
                premises which renders it unfit or uninhabitable. "The meaning
                and interpretation of the statutory phrase 'fit and habitable' will
                not be liberally construed to include that which does not clearly
                fall within the import of the statute. * * * Fitness and habitability
                entails such defects as lack of water or heat, faulty wiring or
                vermin infestations' and does not include such items as missing
                handrails." Avila v. Gerdenich Realty Co., 6th Dist. Lucas No. L-
                07-1098, 2007-Ohio-6356, ¶ 9, quoting Parks v. Menyhart
                Plumbing and Heating Supply Co., Inc., 8th Dist. Cuyahoga No.


4. In her complaint, Arnett merely stated Mong owed her "a duty of care to keep the premises in a safe and
reasonably maintained condition, and to not allow to exist a hazardous condition of which she was aware or
should have been aware."
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              75424, 1999 WL 1129591 (Dec. 9, 1999); Accord Mullins v.
              Grosz, 10th Dist. Franklin No. 10AP-23, 2010-Ohio-3834, ¶ 34
              ("[W]e cannot find that the lack of a handrail or gating in the
              porch/step/walkway area of the premises constitutes a defective
              condition rendering the premises unfit and uninhabitable.")

              The facts in this case indicate that the front porch was not
              equipped with gutters or downspouts for the duration of
              appellant's tenancy and indeed for the entire time appellee has
              owned the home since 1999 or 2000. We find that the absence
              of gutters, in this case, did not as a matter of law render the
              home unfit or uninhabitable. Accordingly, liability may not be
              predicated under R.C. 5321.04(A)(2), and appellant's second
              assignment of error is not well taken.

Id. at ¶ 20-21. We agree with the Sixth District's analysis of R.C. 5321.04(A)(2) and find that

Arnett failed to establish that the gutters rendered the rental home unfit or uninhabitable.

There is simply no evidence to support Arnett's claim that the premises were unfit or not in a

habitable condition. Therefore, summary judgment was also proper as to Arnett's negligence

per se claim under R.C. 5321.04(A)(2).

       {¶ 16} We similarly note another case involving the application of negligence per se. In

Base-Smith, this court reversed a trial court's decision granting summary judgment in favor of

a property owner where triable issues of fact existed as to whether the property owner was

negligent per se. Id., 2014-Ohio-349 at ¶ 28. That case also involved a wintertime slip-and-

fall incident allegedly occurring as a result of a "defective" drainage system, which could

constitute a violation of statutory duties. Id. at ¶ 2-3. However, in that case, the plaintiff

presented testimony and photographs demonstrating that the defective drainage system was

malfunctioning and "not properly channeling the water away from the walkway into the in-

ground drainage pipes, as it was intended to do." Id. at ¶ 24-26.

       {¶ 17} Here, there is evidence that Arnett slipped and fell while walking down steps

and there is testimony related to a hole in the gutter, or that the gutter was "sagging."

However, Arnett offers no evidence to support her claim that this creates a statutory violation.


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Unlike this court's decision in Base-Smith, Arnett has not presented any evidence to support

her argument that the gutter created a statutory violation which caused her injuries. While

Arnett's mother-in-law had the gutter repaired "due to safety concerns," there is no evidence

the premises were not in a habitable condition, nor is there any evidence that a specific code

which "materially" affects health and safety was violated as required by R.C. 5321.04.

                                     Proximate Causation

       {¶ 18} Even if we were to conclude a specific statutory duty was violated, we would still

find that the record in this case fails to demonstrate any genuine issue of material fact that

Arnett's injuries were proximately caused by Mong's breach of a statutory duty. "Normally,

the issue of proximate cause involves questions of fact and cannot be resolved by means of

summary judgment." Welch v. Bloom, 6th Dist. Lucas No. L-04-1003, 2004-Ohio-3168, ¶ 11.

However, if the facts are undisputed, the issue becomes a question of law which can be

determined on summary judgment. Proximate causation, even in instances where the

elements of duty and breach have been established, cannot be established through "mere

speculation." Holbrook v. Kingsgate Condo. Assn., 12th Dist. Butler No. CA2009-07-193,

2010-Ohio-850, at ¶ 27; Workman v. Linsz, 8th Dist. Cuyahoga No. 102473, 2015-Ohio-

2524, ¶ 15.

       {¶ 19} During her deposition, Arnett testified that she was walking on the opposite side

of the accumulating ice and had "no idea" what caused her fall, "but an educated guess

would be probably something was underneath that made me slip. I would say ice or snow."

Thus, from Arnett's testimony it is clear that she cannot determine what caused her fall. This

distinction is critical in a case such as this, as it is well-established that "[n]egligence cannot

be established by the mere fact that a person slipped and fell." Hess v. One Americana Ltd.

Partnership, 10th Dist. Franklin No. 01AP-1200, 2002 WL 392368, *2 (Mar. 14, 2002);

Stamper v. Middletown Hosp. Assn., 65 Ohio App.3d 65, 67-68 (12th Dist.1989) (noting that
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usually, "[t]o establish negligence in a slip and fall case, it is incumbent upon the plaintiff to

identify or explain the reason for the fall"). Rather, "'[a] plaintiff will be prevented from

establishing negligence when he, either personally or with the use of outside witnesses, is

unable to identify what caused the fall.'" Mann, 2012-Ohio-2871, ¶ 26, quoting Beck v.

Camden Place at Tuttle Crossing, 10th Dist. Franklin No. 02AP-1370, 2004-Ohio-2989, ¶ 12.

         {¶ 20} Instead, Arnett's testimony merely suggests that the possible cause of her fall

could be either a natural accumulation of snow or ice or an unnatural accumulation of ice.

Again, such speculation is insufficient to defeat summary judgment. See, e.g., Holbrook,

2010-Ohio-850 at ¶ 27; Workman, 2015-Ohio-2524, ¶ 15. It is undisputed that the record

cannot establish, nor does Arnett know, whether she slipped on ice or snow or, if she in fact

slipped, whether it was on ice that had accumulated naturally or unnaturally.

         {¶ 21} We note that the facts in the present case are distinguishable from those found

in this court's recent case Estate of Jennifer Merrill v. Meijer Stores Limited Partnership, 12th

Dist. Clermont No. CA2015-10-090, 2016-Ohio-1432.             That case involved a fall by a

customer in a Meijer store where the customer slipped on a wet floor and there was an

"ongoing issue" with employees stacking water on top of pallets that had damaged the

bottles, resulting in "leakers." Despite Meijer's knowledge of this ongoing problem, the trial

court found that the plaintiff's observation that she slipped in water coming from the pallet

was solely speculation, as she had no proof that the liquid on which she slipped was water or

that it came from a particular bottle within the cases of water stacked on the pallets. Id. at ¶

14-16.

         {¶ 22} On appeal, we reversed the decision of the trial court, in part because we found

the plaintiff was not speculating as to what the substance was and where it came from. Id. at

¶ 20. Rather, we acknowledged that there was a distinction between "speculation" and "a

reasonable inference based upon factual observations." Id. Furthermore, we noted that
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unlike other decisions addressing similar issues, "our record does not reveal any viable

cause for the water being on the floor other than the cases of water stacked on the pallet

[were] recently transported and deposited at the endcap." Id. at ¶ 19.

       {¶ 23} As previously noted, while Arnett testified and introduced averments regarding

the gutter, her argument here is that the gutter possibly caused an unnatural accumulation of

ice that possibly caused her fall. However, Arnett also stated that she possibly slipped on

snow, which would be a naturally occurring condition not caused by a breach of a statutory

duty. In other words, there is no evidence that Arnett establishes, beyond speculation, that

she slipped on ice as a result of an unnatural accumulation created by a violation of R.C.

5321.04. Beyond arguments in her appellate brief and in her opposition to summary

judgment, there is no evidence that Arnett's injuries were caused by the violation of a specific

safety code that materially affected the premises or that the premises were not fit for

habitation. Without evidence, it simply cannot be said that the proximate cause of Arnett's

injury was caused by a statutory violation. Having found that Arnett failed in her reciprocal

burden to produce facts that establish a genuine issue of material fact of a violation of statute

or the proximate cause element in her case, we find Arnett's single assignment of error is

without merit and overruled.

       {¶ 24} Judgment affirmed.


       PIPER, P.J., and RINGLAND, J., concur.




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