[Cite as St. Germain v. Newell, 2015-Ohio-3713.]




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




THOMAS ST. GERMAIN,

        PLAINTIFF-APPELLANT,                             CASE NO. 9-15-14

        v.

GLEN NEWELL,                                             OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 2013 CV 0679

                                     Judgment Affirmed

                         Date of Decision: September 14, 2015




APPEARANCES:

        Jeff Ratliff for Appellant

        Bruce A. Curry for Appellee
Case No. 9-15-14


SHAW, J.

       {¶1} Plaintiff-appellant, Thomas St. Germain (“St. Germain”) appeals the

February 24, 2015, judgment of the Marion County Common Pleas Court granting

summary judgment to defendant-appellee, Glen Newell (“Newell”) on the issues

of whether Newell, as landlord, was negligent or negligent per se in failing to

repair a loose handrail in St. Germain’s stairway.

       {¶2} The facts relevant to this appeal are as follows. On January 29, 2013,

St. Germain allegedly was walking down a stairway at the apartment he was

staying in when the handrail he was using broke causing him to fall down the

stairway and sustain injuries. (Doc. No. 1).

       {¶3} On November 15, 2013, St. Germain filed a complaint against Glen

Newell, the landlord who owned the residence where the alleged incident

occurred, 843 ½ Uncapher in Marion, Ohio. (Doc. No. 1). St. Germain alleged

that Newell had been previously made aware that the handrail was in an “unsafe

condition” numerous times, and that Newell was negligent for failing to fix the

railing. (Id.)

       {¶4} Attached to St. Germain’s complaint were two affidavits, the first by

Jennifer Smith, who was the tenant on the lease at 843 ½ Uncapher. Smith’s

affidavit stated that she witnessed St. Germain fall down the stairs, and that she

had previously requested that Newell fix the railing. (Doc. No. 1). The second


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affidavit was made by Kathy Pitchford, who stated that she nearly fell one time

when leaving Smith and St. Germain’s residence while using the handrail when

the handrail pulled away from the wall. (Id.)

        {¶5} On March 25, 2014, Newell filed an answer denying negligence and

asserting a number of affirmative defenses. (Doc. No. 6).

        {¶6} On October 17, 2014, a deposition was taken of St. Germain. At his

deposition St. Germain testified that Jennifer Smith leased the apartment at 843 ½

Uncapher from Newell, and that St. Germain was not on the lease but was staying

with Smith. St. Germain testified that Newell was aware St. Germain was residing

with Smith.

        {¶7} Regarding the incident in question, St. Germain testified that

sometime between 8 p.m. and 10 p.m. on January 29, 2013, he was going down a

stairway at the apartment using the upper handrail when the handrail came out and

he fell down the stairs. (St. Germain Depo. at 38-39). As a result of the fall, St.

Germain was taken to the hospital. St. Germain testified that he broke his tibia

and suffered a concussion, but was ultimately released from the hospital later that

night.1 (Id. at 14, 65).




1
  When questioned about whether the fall down the stairs resulted in any long-term injuries other than the
broken tibia, St. Germain’s deposition testimony was rather unclear. St. Germain testified to a number of
lingering maladies from multiple, serious, prior vehicle accidents and lasting injuries from his military
service. One injury St. Germain mentioned was a traumatic brain injury that left him with frequent
headaches.

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       {¶8} St. Germain testified that the apartment he shared with Smith was the

upper unit in a house that had been subdivided into two apartments, a lower unit

and an upper unit. St. Germain testified that the stairway where he fell led up to

the apartment he shared with Smith, but it was not a common entrance; it only led

to their upstairs apartment. (Id. at 45). St. Germain testified that the set of stairs

was the only way to get to and from his apartment. (Id.) Photographs used at the

deposition show that the stairway was carpeted and led to a door at the bottom of

the stairs that contained a lock. (St. Germain Depo. Def.’s Exs. A, B).

       {¶9} As to the railing specifically, St. Germain testified that there were

actually two separate railings that each covered approximately half of the

staircase, and that it was the upper half of the railing that broke, causing him to

fall. St. Germain testified that the lower railing—closer to the bottom of the

stairs—was metal, and the upper railing—closer to the top of the stairs—was

wooden and had been loose prior to this incident. (St. Germain Depo. at 45, 47).

St. Germain testified that prior to the incident the wooden handrail would come off

the wall slightly and then slide back on when it was used. He testified that he

himself and others had told Newell about the loose railing. (Tr. at 47).

       {¶10} On December 11, 2014, a deposition was taken of Kathleen Pitchford

who testified that she was friends with St. Germain and Smith and that she

regularly stopped at their apartment. Pitchford testified that on one such occasion


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when she was leaving the wooden part of the handrail came loose while she was

using it and she almost fell, but was caught by her husband who was also

descending the stairs. Pitchford testified that she told St. Germain and Smith of

the incident, and that she believed they had told Newell about the handrail.

       {¶11} Also on December 11, 2014, Newell was deposed. Newell testified

that the stairway where St. Germain allegedly fell was an interior stairway that had

two separate handrails that did not connect. Newell testified that he had never

been informed of any problem with the railings. Newell also testified that the first

he had heard of St. Germain falling was a couple of weeks into February when

Newell stopped to collect rent and Smith informed Newell that St. Germain was in

jail and he had the rent money so Smith could not pay. Newell indicated that it

was at that time Smith informed him of St. Germain falling on the stairs. Newell

testified that from what he understood Smith and St. Germain had a fight and St.

Germain “chased her down the steps and fell and broke his leg.” (Newell Depo. at

13). Newell testified that he checked the railing at that time and it was “tight” and

there was nothing wrong with it. (Id. at 14).

       {¶12} On January 16, 2015, Newell filed a motion for summary judgment

arguing that St. Germain was on notice of any defect with the railing and that any

issue with the railing was open and obvious, removing any potential liability for

negligence. (Doc. No. 18).


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        {¶13} On February 3, 2015, St. Germain filed a memorandum contra to

Newell’s motion for summary judgment.                       In the memorandum, St. Germain

argued that the loose railing was not open and obvious despite St. Germain’s

knowledge of it, and further that Newell had violated Revised Code provisions

5321.04(A)(2) and (A)(3), which read,

        (A) A landlord who is a party to a rental agreement shall do all
        of the following:

        ***

        (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[.]

        {¶14} St. Germain argued that Newell’s violation of R.C. 5321.04(A)(2)

and (A)(3) made Newell liable for Negligence per se and thus the open and

obvious doctrine would not apply.2 (Doc. 21).

        {¶15} On February 13, 2015, Newell filed his reply brief in support of

summary judgment.             In the reply, Newell argued that the open and obvious

doctrine applied if there was no breach of R.C. 5321.04. Newell argued there was
2
  We would note that the first time Negligence per se based on a violation of R.C. 5321.04 was mentioned
was in St. Germain’s memorandum contra to Newell’s summary judgment motion. Prior to that point there
was no amendment to the complaint made to add a claim of negligence per se. At least two courts have
stated that since Civ.R. 8 does not require particularity in pleadings and since “‘negligence and negligence
per se are so closely intertwined’” a separate pleading for negligence per se is not necessary. Collier v.
Libations Lounge, L.L.C., 8th Dist. Cuyahoga No. 97504, 2012-Ohio-2390, ¶ 24, quoting Lone Star
Steakhouse & Saloon of Ohio, Inc. v. Quaranta, 7th Dist. Mahoning No. 01 CA 60, 2002–Ohio–1540, ¶ 42.
We make no formal endorsement of the findings in Collier and Lone Star because the issue is not before
this Court, and Newell did not object. Similarly the trial court treated the negligence per se argument as
though it had been properly alleged and therefore we will as well.

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no breach of R.C. 5321.04(A)(2) because a loose railing does not render an

apartment unfit or uninhabitable. (Doc. No. 24). Newell argued that there was no

breach of R.C. 5321.04(A)(3) because the stairway was not a “common area” as it

was only used and accessed by Smith and St. Germain and their guests. (Id.)

       {¶16} On February 24, 2015, the trial court filed its entry ruling on

summary judgment. The trial court determined that St. Germain was aware of the

loose railing prior to falling, making it open and obvious. As to the negligence per

se issues, the trial court held as follows.

       In the case of Taylor v Alexander, 86-LW-2151 (Trumbull Cty.
       Of App. 1986), [sic] the Trumbull County Court of Appeals held
       that while R.C. 5321.04(A)(2) speaks in terms of “fitness and
       habitability”, the appellant did not contend that the absence of a
       handrail made the premises unfit for human habitation. Rather,
       the common law warranty of habitability deals with situations
       where the premises contained defective wiring, heat or water
       shortages, vermin infestations, etc. It cannot seriously be
       contended that the lack of a handrail, in and of itself, renders the
       premises substantially or wholly uninhabitable. Consequently,
       R.C. 5321.04(A)(2) cannot be used as a basis for imposing
       liability on appellee.

       ***

            After construing the evidence most strongly in favor of the
       Plaintiff, as this Court is required to do, the Court finds that
       reasonable minds can only come to the conclusion that a loose
       handrail on the stairway did not render the rental premises unfit
       and uninhabitable, at the time the Plaintiff suffered his injury.
       Thus, R.C. Section 5321.04(A)(2) is not available to impose per
       se negligence liability on the Defendant.



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           Turning next to * * * 5321.04(A)(3) * * * [a] review of the
      record reveals that the stairway on which the Plaintiff was
      injured, was not in a common area, but was, rather, an interior
      stairway separate from any entrance to the downstairs
      apartment.

           As the stairway on which the Plaintiff was injured was not a
      common area, the Plaintiff cannot use R.C. 5321.04(A)(3) as a
      basis upon which to impose [per] se negligence liability upon the
      Defendant.

(Doc. No. 25).

      {¶17} The trial court thus granted summary judgment to Newell.           On

February 24, 2015, the trial court filed a judgment entry dismissing St. Germain’s

complaint with prejudice.    (Doc. No. 26).    It is from this judgment that St.

Germain appeals, asserting the following assignment of error for our review.

                  ASSIGNMENT OF ERROR
      THE TRIAL COURT ERRED IN GRANTING DEFENDANT-
      APPELLEE’S MOTION FOR SUMMARY JUDGMENT AS
      THERE REMAINED A DISPUTED ISSUE OF MATERIAL
      FACT AND DEFENDANT-APPELLEE WAS NOT ENTITLED
      TO JUDGMENT AS A MATTER OF LAW.

      {¶18} In his assignment of error, St. Germain argues that the trial court

erred in granting Newell’s motion for summary judgment.          Specifically, St.

Germain contends that the railing was not objectively open and obvious, making




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Newell potentially liable under common law negligence, and that Newell violated

R.C. 5321.04(A)(2) and (A)(3), making him liable for negligence per se.3

                                Summary Judgment Standard

        {¶19} An appellate court reviews a grant of summary judgment de novo,

without any deference to the trial court. Mercer Health v. Welling, 3d Dist.

Mercer No. 10-14-05, 2014-Ohio-5626, ¶ 16, citing Conley–Slowinski v. Superior

Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (6th Dist.1998). A grant of

summary judgment will be affirmed only when the requirements of Civ.R. 56(C)

are met. This requires the moving party to establish: (1) that there are no genuine

issues of material fact, (2) that the moving party is entitled to judgment as a matter

of law, and (3) that reasonable minds can come to but one conclusion and that

conclusion is adverse to the non-moving party, said party being entitled to have

the evidence construed most strongly in his favor.                      Civ.R. 56(C); M.H. v.

Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, ¶ 12 (Citation omitted).

        {¶20} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112,

syllabus (1988). The moving party also bears the burden of demonstrating the

absence of a genuine issue of material fact as to an essential element of the case.

3
  We would note initially that while St. Germain was not the tenant on the lease, in Mann v. Northgate
Investors, L.L.C., 138 Ohio St.3d 175, 178, 2014-Ohio-455 (2014), the Ohio Supreme Court determined
that a landlord owes a tenant’s guest the same duty he or she owes to the tenant. Mann at ¶ 33.

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Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996–Ohio–107. Once the moving party

demonstrates that he is entitled to summary judgment, the burden shifts to the

nonmoving party to produce evidence on any issue which that party bears the

burden of production at trial. See Civ.R. 56(E); Mercer Health, supra, at ¶ 17.

                         Common Law Negligence Claim

       {¶21} In this case, St. Germain first argues that summary judgment was

improper because the loose railing was not open and obvious, making Newell

liable for common law negligence. St. Germain claims that while he admittedly

knew of the loose railing prior to falling, the question was not whether he knew

about the railing, but rather whether it would have been discernable to a

reasonable person.

       {¶22} Under the open and obvious doctrine, “a premises-owner owes no

duty to persons entering those premises regarding dangers that are open and

obvious.” Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 80, 2003-Ohio-2573, ¶ 5

(2003), citing Sidle v. Humphrey, 13 Ohio St.2d 45 (1968), paragraph one of the

syllabus.

       {¶23} “ ‘[T]he 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




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themselves.’ ” (Emphasis added.) Armstrong, supra, at ¶ 5, quoting Simmers v.

Bentley Constr. Co., 64 Ohio St.3d 642, 644 (1992).

      {¶24} The open and obvious doctrine has not only been applied where a

person would reasonably be expected to discover a hazard, but also where the

tenant had actual knowledge of a particular hazard or condition.       Mounts v.

Ravotti, 7th Dist. Mahoning No. 07MA182, 2008-Ohio-5045, ¶ 51 (where tenant

was aware of water on steps prior to fall and he had slipped numerous times in the

past, condition was open and obvious); Stewart v. AMF Bowling Ctrs., Inc., 3d

Dist. Hancock No. 5-10-16, 2010-Ohio-5671, ¶¶ 16-17 (where plaintiff was aware

of step-down leading to bowling lanes, had previously been to bowling center and

was aware of its set-up, hazard was open and obvious); see also Hayes v. Murtha,

10th Dist. Franklin No. 96APE04-512, (Oct. 1996) 1996 WL 589268 (summary

judgment properly awarded where plaintiff knew “that the sidewalks were uneven

and over-grown with shrubbery and that the weather conditions overnight had

cause the sidewalks to be ice-covered.”).

      {¶25} Moreover, “[a] plaintiff’s failure to avoid a known peril is not

excused by the fact that he ‘did not think,’ or ‘forgot.’ ” Raflo v. Losantiville

Country Club, 34 Ohio St.2d 1, 3 (1973) (citations omitted). Here, St. Germain

readily admitted that he was aware that the railing was loose and that it had been

loose for some time. That St. Germain ignored that “known peril” or “forgot,”


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does not alter the fact that St. Germain was completely aware of the loose railing.

Accordingly, St. Germain’s argument that we should ignore his knowledge of the

loose railing in favor of applying an objective standard as though he had never

been aware of the railing is not well-taken.

                             Negligence Per Se Claims

       {¶26} St. Germain next argues that Newell was liable for negligence per se

for violating R.C. 5321.04(A)(2) and (A)(3). In Mann v. Northgate Investors,

L.L.C., 138 Ohio St.3d 175, 178, 2014-Ohio-455 (2014), the Ohio Supreme Court

stated that if a violation of a statutory duty under R.C. 5321.04(A)(2) or (A)(3)

“constitutes negligence per se and obviates the open-and-obvious-danger

doctrine.” Mann at ¶ 33. Thus if St. Germain could establish that Newell violated

R.C. 5321.04(A)(2) or (A)(3), he would have a valid negligence per se claim

notwithstanding the open and obvious doctrine.

       {¶27} Revised Code 5321.04(A)(2) states that, “A landlord who is a party

to a rental agreement shall * * * [m]ake all repairs and do whatever is reasonably

necessary to put and keep the premises in a fit and habitable condition[.]

(Emphasis added.) In the trial court’s decision, the trial court found that a loose

railing does not render a premises unfit or uninhabitable such that liability under

R.C. 5321.04(A)(2) would be invoked. We agree.




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       {¶28} In Avila v. Gerdenich Realty Co., 6th Dist. Lucas No. L-07-1098,

2007-Ohio-6356, ¶ 9, the Sixth District Court of Appeals held that, “‘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.’” Avila at ¶ 9 quoting Parks v. Menyhart Plumbing and Heating Supply

Co., Inc., 8th Dist. Cuyahoga No. 75424 1999 WL 1129591 (Dec. 9, 1999), citing

LaCourse v. Fleitz, 28 Ohio St.3d 209 (1986).        The Sixth District continued,

adding, “ ‘Fitness and habitability entails such defects as lack of water or heat,

faulty wiring, or vermin infestation,’ and does not include items such as missing

handrails.” Avila quoting Parks, citing Taylor v. Alexander, 11th Dist. No. 3550,

1986 WL 7800 (July 11, 1986). The Sixth District’s definition of fitness and

habitability has been similarly utilized by multiple other Ohio Appellate Courts.

See Aldridge v. Englewood Village, Ltd., 2d Dist. No. 10251, 1987 WL 15015

(July 22, 1987); Mullins v. Grosz, 10th Dist. Franklin No. 10AP-23, 2010-Ohio-

3844, ¶ 33; Parks (8th Dist.), supra, and Taylor (11th Dist.), supra.

       {¶29} Based on what these courts have determined renders a premises unfit

or uninhabitable, the bar for finding that a landlord has violated R.C.

5321.04(A)(2) is high and would not include a loose handrail. In fact, multiple

courts have determined that the complete lack of a handrail does not render a

premises unfit or uninhabitable, so we fail to see how a defective handrail would


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render an entire premises unfit or uninhabitable. See Mullins; Taylor, supra. Thus

we cannot find that the trial court erred in determining that a loose handrail did not

make the apartment unfit or uninhabitable to invoke liability under R.C.

5321.04(A)(2).

       {¶30} Next, St. Germain argues that Newell should be liable for negligence

per se under R.C. 5321.04(A)(3), which states that a landlord must, “[k]eep all

common areas of the premises in a safe and sanitary condition[.]” The trial court

granted Newell summary judgment on this issue, finding that the handrail and

staircase in question were not in “common areas.” We agree.

       {¶31} First, St. Germain specifically testified in his deposition that the

stairway into his apartment was not a common stairway in the following exchange.

       Q: The stairway in these photographs is that a common
       entrance [the neighbors] would also use?

       A: No, that was to the upstairs apartment and then their
       apartment was downstairs.

(Tr. at 45). Notwithstanding St. Germain’s direct testimony, photographs of the

stairway in question make clear that the stairway was not a common stairway.

The stairway was a carpeted interior stairway that led up into St. Germain’s

apartment, and the door at the bottom of the stairway had a locking mechanism.

(Def’s Depo Exs. A, B). The door at the top of the stairs also appears to be a

sliding door. (Def’s Depo Ex. D).


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       {¶32} Furthermore, in Newell’s deposition, he testified that the downstairs

apartment had its own separate stairway leading into that apartment. (Newell

Depo. at 7). In addition, Newell also testified to an instance in his deposition

where he was standing outside the residence talking to Smith asking her if she

would allow him inside to inspect the stairway, further implying that Smith (and

thus St. Germain) held exclusive control over the stairway. (Newell Depo. at 14).

While the stairway may have been used by guests of St. Germain and Jennifer

Smith (the tenant on the lease), the only indication in the record was that the

stairway was not “common.” Therefore, we cannot find that the trial court erred in

granting Newell summary judgment on this issue.

       {¶33} Accordingly, having found no error prejudicial to St. Germain in the

particulars assigned, St. Germain’s assignment of error is overruled and the

judgment of the Marion County Common Pleas Court is affirmed.

                                                              Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr




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