[Cite as Harris-Coker v. Abraham, 2012-Ohio-4135.]


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

ROWENA HARRIS-COKER                                       C.A. No.    26053

          Appellant

          v.                                              APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
DANIEL M. ABRAHAM, et al.                                 COURT OF COMMON PLEAS
                                                          COUNTY OF SUMMIT, OHIO
          Appellees                                       CASE No.   CV 2010-08-5255

                                DECISION AND JOURNAL ENTRY

Dated: September 12, 2012



          CARR, Judge.

          {¶1}   Appellant Rowena Harris-Coker appeals the judgment of the Summit County

Court of Common Pleas which granted summary judgment in favor of appellees Daniel and

Patricia Abraham. This Court reverses in part.

                                                     I.

          {¶2}   Ms. Harris-Coker fell as she ascended the concrete steps leading to her daughter’s

residence. Her daughter was renting the premises from the Abrahams. Ms. Harris-Coker filed a

complaint against the Abrahams, alleging negligence.            The Abrahams moved for summary

judgment, Ms. Harris-Coker responded in opposition, and the Abrahams replied. The trial court

granted summary judgment in favor of the Abrahams. Ms. Harris-Coker appealed, raising three

assignments of error for review. The assignments of error have been rearranged to facilitate

review.
                                                2


                                               II.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED
       SUMMARY JUDGMENT IN FAVOR [OF] THE DEFENDANT[S] WHEN IT
       FAILED TO APPLY, MISAPPLIED, OR FAILED TO CONSIDER THE
       APPLICABLE LAWS.

       {¶3}    Ms. Harris-Coker argues that the trial court erred by granting summary judgment

to the Abrahams because it failed to apply or consider the applicable law. This Court agrees.

       {¶4}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983). However, this Court remains a reviewing court. As such, this

Court will not consider the issues relevant to a motion for summary judgment in the first

instance. Mourton v. Finn, 9th Dist. No. 26100, 2012-Ohio-3341, ¶ 9, citing Neura v. Goodwill

Industries, 9th Dist. No. 11CA0052-M, 2012-Ohio-2351, ¶ 19.

       {¶5}    Ms. Harris-Coker argues that the trial court erred by failing to consider her

negligence per se argument and by granting summary judgment to the Abrahams solely on the

basis of common law negligence.

       {¶6}    To prevail on a claim of negligence, Ms. Harris-Coker must establish the

existence of a duty, a breach of that duty, and an injury proximately resulting from the breach of

duty. Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77 (1984).

       {¶7}    R.C. 5321.04(A) sets out various duties of a landlord. The breach of some of

those duties has been held to constitute negligence per se. Although she did not cite the statute
                                                  3


in her complaint, Ms. Harris-Coker alleged facts relevant to the following two statutory

provisions:

       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[.]

R.C. 5321.04(A)(2) and (3). Moreover, she argued in support of her claim of negligence

per se in her brief in opposition to the Abrahams’ motion for summary judgment. The

trial court, however, 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. See Mourton at ¶ 9.

       {¶8}    We note, however, that although Ms. Harris-Coker argued in both her brief in

opposition to the motion for summary judgment and her appellate brief that the Abrahams

violated their duty to “[c]omply with the requirements of all applicable building, housing, health,

and safety codes that materially affect health and safety[,]” pursuant to R.C. 5321.04(A)(1), she

did not allege any code violations in her complaint. Accordingly, the trial court did not err by

failing to address the issue of negligence per se in regard to this issue.

       {¶9}    Because the trial court failed to address Ms. Harris-Coker’s articulated claims for

negligence per se, her second assignment of error is sustained.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED
       SUMMARY JUDGMENT TO THE DEFENDANTS, AS THE DEFENDANTS
       FAILED TO MEET THEIR BURDEN, GENUINE ISSUES OF MATERIAL
       FACTS REMAINED, AND THE COURT FAILED TO PROPERLY
       CONSIDER ALL THE FACTS BEFORE IT IN THE LIGHT MOST
       FAVORABLE TO THE PLAINTIFF.
                                                4


                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED
       SUMMARY JUDGMENT TO THE DEFENDANTS, AS THE PLAINTIFF
       PROVIDED EVIDENCE AS TO EACH ELEMENT OF NEGLIGENCE AND
       NEGLIGENCE PER SE AND IT WAS NOT NECESSARY FOR PLAINTIFF
       TO HAVE AN EXPERT WITNESS.

       {¶10} Ms. Harris-Coker argues that the trial court failed to consider the evidence in a

light most favorable to her as the non-moving party. She further argues that genuine issues of

material fact exist in regard to her claims of negligence and negligence per se. She asserts in

these arguments, however, that she would or had developed these arguments in other

assignments of error. Specifically, while she mentions the open and obvious doctrine and the

element of duty in these two assignments of error, she does not develop her arguments in regard

to those issues here. Moreover, she asserts in her first assignment of error that she briefed the

issue of common area below, but she does not develop that issue in these assignments of error

either. Instead, she refers to the arguments she makes in her second assignment of error. Based

on our resolution of the second assignment of error, the first and third assignments of error have

been rendered moot and we decline to address them. See App.R. 12(A)(1)(c).

                                               III.

       {¶11} The second assignment of error is sustained. We decline to address the remaining

assignments of error. The judgment of the Summit County Court of Common Pleas is affirmed

in part, reversed in part, and the cause remanded for further proceedings consistent with this

opinion.

                                                                       Judgment affirmed in part,
                                                                                reversed in part,
                                                                            and cause remanded.
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       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 Summit, 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

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 equally to both parties.




                                                     DONNA J. CARR
                                                     FOR THE COURT




MOORE, P. J.
CONCURS.

BELFANCE, J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶12} I concur with the majority that the award of summary judgment should be

reversed because the trial court did not consider Ms. Harris-Coker’s per se statutory claims.

However, I respectfully dissent from the majority’s implicit affirmance of the trial court’s award
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of summary judgment on Ms. Harris-Coker’s claim of common-law negligence because I believe

that there still exist genuine issues of material fact.

        {¶13} For example, it is unclear whether the steps were an open and obvious hazard.

Whether something is open and obvious is determined by the totality of the circumstances. See

Neura v. Goodwill, 9th Dist. No. 11CA0052-M, 2012-Ohio-2351, ¶ 10. While a person could

readily see that the steps contain some chipping and pock marks, there was no testimony that one

could observe that the railing was loose. Depending on how loose the railing was, it could

greatly increase the hazard of the steps. Therefore, because the record is unclear as to whether

Ms. Harris-Coker knew that the railing was loose, viewing the evidence in the light most

favorable to her, I would conclude that the hazard posed by the steps was not open and obvious.

Accordingly, I dissent in part.


APPEARANCES:

KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.

ADAM E. CARR, Attorney at Law, for Appellee.
