[Cite as Ryder v. McGlone's Rentals, 2009-Ohio-2820.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY



SHARON K. RYDER,                                        CASE NO. 3-09-02

   PLAINTIFF-APPELLANT,

  v.

McGLONE'S RENTALS, ET AL.,                               OPINION

   DEFENDANTS-APPELLEES.




               Appeal from Crawford County Common Pleas Court
                           Trial Court No. 07CV0123

                                     Judgment Affirmed

                             Date of Decision: June 15, 2009




APPEARANCES:

        Brenda M. Johnson and Jonathan D. Mester for Appellant

        Kathryn M. Eyster and H. Frank McDaniel, Jr. for Appellees
Case No. 3-09-02



ROGERS, J.

         {¶1} Plaintiff-Appellant, Sharon Ryder, appeals the judgment of the

Crawford County Court of Common Pleas granting summary judgment in favor of

Defendant-Appellees, Paul and Barbara McGlone, d.b.a. McGlone’s Rentals. On

appeal, Ryder argues that the trial court erred in granting summary judgment in

favor of the Defendant-Appellees because they were not entitled to judgment as a

matter of law. Based upon the following, we affirm the judgment of the trial

court.

         {¶2} On April 24, 2006, Ryder exited her vehicle parked in the street in

front of the house she rented from the McGlones located at 583 Rogers Street in

Bucyrus, Crawford County (“the property”). While traversing the public sidewalk

abutting the street in front of the property, Ryder tripped, fell, and was injured.

         {¶3} In March 2007, Ryder filed a complaint against the McGlones,

alleging that they negligently allowed a defective condition on the sidewalk

outside of the property, and that the McGlones’ negligence caused her permanent

and severe injuries, incurrence of medical expenses, and extreme pain and

suffering. Additionally, Ryder’s complaint alleged that the McGlones violated the

Landlord-Tenant Act under R.C. 5321.04(A) by failing to comply with the

requirements of applicable housing, health, and safety codes; by failing to keep the

premises of the property in a fit and habitable condition; and, by violating Bucyrus



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Codified Ordinance §521.04 by failing to keep the sidewalks abutting the property

in repair and free from nuisance.

       {¶4} In May 2007, the McGlones answered, denying Ryder’s allegations

and asserting, among other defenses, that Ryder’s negligence caused or

contributed to her damages, and that Ryder assumed the risk of an open and

obvious danger or condition.

       {¶5} In April 2008, Ryder was deposed and stated that, in April 2006, she

leased the bottom half of the two-unit property; that she moved into the property

around December 2004 with her son, David Vreeland; that, on April 24, 2006, she

parked her car in the street in front of the house; that she began to walk on the

sidewalk toward the house, carrying a small box of groceries; that she fell on the

sidewalk in front of the property because she tripped on a “lift” in the sidewalk

(Ryder dep., p. 27); that she knew there was a lift in the sidewalk, but forgot where

it was and believed she had already passed it before she fell; that the day was

sunny and clear, and the sidewalk was not wet; that she had a clear view ahead and

was not distracted when she fell; and, that Vreeland, her son, was standing on the

porch and witnessed her fall.

       {¶6} Ryder continued that she traversed the portion of the sidewalk where

she fell approximately twice a week since she had moved to the property; that she

was aware there was a lift in the sidewalk at the point where she fell; and, that,

approximately seven months before she fell, she spoke to Barbara McGlone about


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having Paul McGlone “do something” about the lift in the sidewalk. (Ryder Dep.,

p. 55).

          {¶7} Thereafter, Kathleen Auck, Ryder’s daughter, was deposed and

stated that, before Ryder’s fall, she spoke to Barbara McGlone about how people

had tripped on the sidewalk in front of the property and complained to them, and

how it needed to be repaired; that Barbara McGlone told her that she would give

Paul McGlone the message; that she had talked to Ryder about the lift in the

sidewalk, and Ryder had pointed it out to her before, telling her to be careful in

that area; that she had tripped on the lift on a previous occasion while she was

pushing Ryder in her wheelchair; and, that neither she nor Ryder spoke to the city

about repairing the sidewalk prior to Ryder’s fall because they did not know much

about the laws in Bucyrus.

          {¶8} Thereafter, David Vreeland, Ryder’s son, was deposed and stated

that he was living with Ryder at the property in April 2006; that the property

contained two units, and another family lived in the second story unit of the home;

that, on the day Ryder fell, he heard her car pull up to the property and saw her

walk around to the trunk of her car and retrieve a box of groceries; that he

observed Ryder trip over the “crack” in the sidewalk and fall (Vreeland dep., p.

17); that he did not know if anyone asked the McGlones to fix the sidewalk prior

to Ryder’s fall; that he mowed the grass at the property but did not mow around

the area of the sidewalk where Ryder fell because he knew there was a “ledge” or


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“major step up” (Vreeland dep., p. 21); that everyone in the family, including

Auck and Ryder, knew that there was a ledge in the sidewalk; and, that the ledge

was covered with grass at the time Ryder fell, but that Auck cleaned out the grass

after Ryder’s fall at the request of the McGlones’ insurance company.

       {¶9} Paul McGlone was deposed and stated that he did not recall anyone

requesting he conduct any maintenance at the property between October 2005 and

April 2006 except for installing some electrical plugs, repairing the roof, and

fixing the porch; that, prior to April 2006, he had seen the lift in the sidewalk, but

did not realize how high the lift was because grass grew between the slabs and

made the lift difficult to see; that he had not repaired the lift or contacted the city

about repairing it; and, that he did not recall Ryder or any of her family members

speaking to him about the problem with the sidewalk.

       {¶10} In January 2009, the trial court granted summary judgment in the

McGlones’ favor, finding that Ryder had knowledge of the sidewalk defect; that

there was no dispute that Ryder fell on a public sidewalk; that, as defined by R.C.

5321.01(C), a public sidewalk was not part of a common area under the

McGlones’ control; that for rental property to have a “common area,” it must have

more than one unit, and a single-family residence could not have common areas;

and, that a sidewalk running parallel with and abutting the street in front of a home

was open to anyone traversing it. Based upon these findings, the trial court

concluded that the Landlord-Tenant Act did not apply to the facts of the case.


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Additionally, the trial court found that Ryder’s claim must also fail because the

sidewalk conditions were open and obvious as the condition was observable and

was present for quite some time; that Ryder knew of the condition from prior

experience, and, in fact, had warned her daughter about the situation; and, that, at

the time she fell, Ryder had a clear view ahead and was not distracted by anything.

      {¶11} It is from this judgment that Ryder appeals, presenting the following

assignment of error for our review.

      THE TRIAL COURT ERRED AS A MATTER OF LAW IN
      GRANTING THE MOTION FOR SUMMARY JUDGMENT
      OF DEFENDANTS-APPELLEES PAUL MCGLONE AND
      BARBARA MCGLONE.

      {¶12} In her sole assignment of error, Ryder argues that the trial court

erred in granting summary judgment in favor of the McGlones. Specifically,

Ryder argues that a public sidewalk located on a multi-unit residential premises is

a “common area” for purposes of R.C. 5321.04; that the McGlones, as landlords

operating residential property, were required pursuant to R.C. 5321.04 and

Bucyrus Codified Ordinance §521.04 to keep abutting public sidewalks in repair;

and, that the “open and obvious” doctrine does not protect a landlord from liability

for a breach of his statutory duties under R.C. 5321.04. We note that the issue of

whether R.C. 5321.04 of the Landlord-Tenant Act applies to an injury occurring

on a public sidewalk is an issue of first impression for this Court and, it appears,

for Ohio.



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                               Standard of Review

      {¶13} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.

Accordingly, a reviewing court will not reverse an otherwise correct judgment

merely because the lower court utilized different or erroneous reasons as the basis

for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.

Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶25, citing State ex rel. Cassels v.

Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.

Summary judgment is appropriate when, looking at the evidence as a whole: (1)

there is no genuine issue as to any material fact; (2) reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the

motion for summary judgment is made; and, therefore, (3) the moving party is

entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick

Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,

the issue must be resolved in favor of the nonmoving party. Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.

      {¶14} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing

so, the moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support its argument. Id.


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at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; she may not rest on the mere allegations or

denials of her pleadings. Id.; Civ.R. 56(E).

                      Common Law and Statutory Negligence

       {¶15} Plaintiff-tenants seeking to establish negligence claims against

defendant-landlords may do so under (1) common law premises liability, or (2)

R.C. 5321 et seq., commonly referred to as the Landlord-Tenant Act. Mounts v.

Ravotti, 7th Dist. No. 07 MA 182, 2008-Ohio-5045, ¶¶15-17.

       {¶16} The elements of a negligence action between private parties are (1)

the existence of a legal duty, (2) the defendant's breach of that duty, and (3) injury

“‘resulting proximately therefrom.’” Howard v. Chattahoochie's Bar, 175 Ohio

App.3d 578, 2008-Ohio-742, ¶13, quoting Nationwide Mut. Ins. Co. v. Am.

Heritage Homes Corp., 167 Ohio App.3d 99, 2006-Ohio-2789, ¶12. Additionally,

“[w]here a danger is open and obvious, a landowner owes no duty of care to

individuals lawfully on the premises.” Armstrong v. Best Buy Co., Inc., 99 Ohio

St.3d 79, 2003-Ohio-2573. A hazard is open and obvious when it is in plain view

and readily discoverable upon ordinary inspection. Mohn v. Wal-Mart Stores,

Inc., 3d Dist. No. 6-08-12, 2008-Ohio-6184, ¶14, citing Parsons v. Lawson Co.

(1989), 57 Ohio App.3d 49, 51. Further, a “‘plaintiff’s failure to avoid a known

peril is not excused by the fact that he ‘did not think,’ or ‘forgot’.’” Sneary v.




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McDonald’s Restaurant No. 3830, 3d Dist. No. 1-2000-13, 2000-Ohio-1885,

quoting Raflo v. Losantiville Country Club (1973), 34 Ohio St.2d 1, 3.

       {¶17} R.C. 5321 et seq. governs the obligations of a landlord and provides,

in pertinent 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[.]

R.C. 5321.04. The Supreme Court of Ohio has held that “a landlord’s violation of

the duties imposed by R.C. 5321.04(A)(1) or 5321.04(A)(2) constitutes negligence

per se.” Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, ¶23, citing

Sikora v. Wenzel, 88 Ohio St.3d 493, 2000-Ohio-406. Further, the Supreme Court

of Ohio held in Robinson that “[t]he ‘open and obvious’ doctrine does not dissolve

the statutory duty to repair,” Id. at ¶25; however, “if the jury finds no statutory

breach, * * * it still must determine whether the danger was open and obvious [to

the plaintiff] under common-law negligence principles.” Id.

       {¶18} Finally, Bucyrus Codified Ordinance §521.04 governs the duty to

keep sidewalks in repair and clean, providing, in pertinent part:



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       (a)    No owner or occupant of abutting lands shall fail to keep
       the sidewalks, curbs, or gutters in repair and free from snow, ice
       or any nuisance (ORC 723.011)

       ***

       (c)    Whoever violates any provision of this section shall be
       fined not more than one hundred dollars ($100.00) a day. Each
       day’s continued violation shall constitute a separate offense.
       (Ord. 85-99. Passed 11-2-99).

                             Assignment of Error

       {¶19} Ryder specifically contends that the trial court erred in failing to find

that, pursuant to R.C. 5321.04(A)(1) and Bucyrus Codified Ordinance §521.04,

the McGlones owed her a duty to keep the public sidewalk in repair and violated

that duty; erred in determining that the sidewalk was in a “fit and habitable”

condition pursuant to R.C. 5321.04(A)(2); and, erred in determining that the

property was a single-family residence, and thus, the public sidewalk could not be

a “common area” subject to R.C. 5321.04(A)(3). Finally, Ryder claims that the

trial court erred in applying the “open and obvious” doctrine to this case.

Specifically, Ryder claims that the Supreme Court of Ohio has held that the open

and obvious doctrine does not protect a landlord from liability pursuant to

Robinson, supra. We disagree with Ryder’s assertion that the Landlord-Tenant

Act is applicable to the facts before us.

       {¶20} Where the meaning of a statute is ambiguous, a court may examine

legislative history or examine the statute in pari materia in order to ascertain its



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meaning. State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, ¶34; State ex

rel. Pratt v. Weygandt (1956), 164 Ohio St. 463, paragraph two of the syllabus.

Additionally, “‘a court cannot pick out one sentence and disassociate it from the

context, but must look to the four corners of the enactment to determine the intent

of the enacting body.’” Jackson, 2004-Ohio-3206, at ¶34, quoting State v. Wilson

(1997), 77 Ohio St.3d 334, 336. Further, a court is permitted to consider laws

concerning the same or similar subjects in order to discern legislative intent. R.C.

1.49(D). “‘Statutes relating to the same matter or subject * * * are in pari materia

and should be read together to ascertain and effectuate if possible the legislative

intent.’” D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250,

2002-Ohio-4172, ¶20, quoting Weygandt, 164 Ohio St. 463, at paragraph two of

the syllabus. Finally, “[i]t is a firm principle of statutory construction that liability

imposed by statute shall not be extended beyond the clear import of the terms of

the statute.” LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 212, citing Weiher v.

Phillips (1921), 103 Ohio St. 249, paragraph one of the syllabus.

       {¶21} We find that the Landlord-Tenant Act as a whole is inapplicable to

the facts of this case because Ryder was not injured on the residential premises,

but on a public sidewalk. As used in R.C. 5321.04 of the Landlord-Tenant Act,

under which Ryder seeks relief, the Revised Code defines “landlord” as “the

owner, lessor, or sublessor of residential premises * * *”; defines “tenant” as “a

person entitled under a rental agreement to the use and occupancy of residential


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premises to the exclusion of others”; and, defines “residential premises” as “a

dwelling unit for residential use and occupancy and the structure of which it is a

part, the facilities and appurtenances in it, and the grounds, areas, and facilities for

the use of tenants generally or the use of which is promised the tenant. * * *” R.C.

5321.01(A), (B), (C). The definition of “residential premises” does not include a

reference to public sidewalks abutting the property. Accordingly, we find that a

public sidewalk does not fall within the definition of “residential premises,”

particularly when read in pari materia with the definition of “tenant,” which is

defined as a person entitled to use and occupy the residential premises to the

exclusion of others. Clearly, the public sidewalk is not for the tenant’s use to the

exclusion of others, as it is open for use to the public. Thus, as Ryder’s injuries

occurred on the public sidewalk, she may not seek redress under R.C. 5321.04 of

the Landlord-Tenant Act.

       {¶22} Next, we address Ryder’s argument that the open and obvious

doctrine does not protect a landlord from liability.         In Robinson, supra, the

Supreme Court of Ohio held that:

       The “open and obvious” doctrine does not dissolve the statutory
       duty to repair. If the jury finds that [Defendant-Landlord]
       breached her duty to repair and keep the leased premises in a fit
       and habitable condition, the “open and obvious” doctrine will
       not protect her from liability. If the jury finds no statutory
       breach, however, it still must determine whether the danger was
       open and obvious to [Plaintiff-Tenant] under common-law
       negligence principles.



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(Citation omitted.) 2006-Ohio-6362, at ¶25. Therefore, the open and obvious

doctrine will not relieve a defendant-landlord of liability for violations of R.C.

5321.04; however, where the plaintiff-tenant has established no statutory breach

under R.C. 5321.04, the open and obvious doctrine must still be considered. Here,

as Ryder has not demonstrated a duty under R.C. 5321.04 because she was not

injured on the residential premises, but on the public sidewalk, the trial court did

not err in considering the open and obvious doctrine and finding that it barred her

claims.

       {¶23} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jnc




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