       [Cite as Uptown Community Partners, L.P. v. Killings, 2011-Ohio-5784.]
               IN THE COURT OF APPEALS
           FIRST APPELLATE DISTRICT OF OHIO
                HAMILTON COUNTY, OHIO



UPTOWN COMMUNITY PARTNERS, :                              APPEAL NO. C-110012
L.P.,                                                     TRIAL NO. 10CV-05767
                           :
      Plaintiff-Appellant,                                O P I N I O N.
                           :
  vs.
                           :
KENELLA KILLINGS,
                           :
      Defendant-Appellee.




Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 10, 2011


David D. Donnett, for Plaintiff-Appellant,

Legal Aid Society of Southwest Ohio, LLC, Nicholas J. DiNardo and Jason Fountain
for Defendant-Appellee.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




S UNDERMANN , Judge

         {¶1}   Uptown Community Partners appeals the trial court’s judgment that

granted summary judgment to Kenella Killings. We affirm the judgment of the trial

court.

         {¶2}   Killings leased an apartment at Gateway Plaza as part of what is

known as the Section 8 housing program. See generally, Section 1437(f)(a), Title 42,

U.S. Code. On January 28, 2010, a babysitter was in Killings’s apartment while

Killings was shopping. As the babysitter prepared food in the kitchen, a fire started.

The fire was contained to the kitchen, but Killings’s apartment and other apartments

in the unit suffered smoke and water damage.

         {¶3}   On the same day as the fire, Uptown Community Partners served

Killings with an eviction notice. According to the notice, the reason for the eviction

was “Violation of HUD Model Lease: Section 23, letter d, number 1(b). Specifically:

started a fire in her [apartment].” The notice gave her until February 27, 2010, to

leave the premises.     When Killings failed to vacate the apartment, Uptown

Community Partners filed a complaint for forcible entry and detainer against her.

Killings filed counterclaims sounding in contract and tort against Uptown

Community Partners. Following discovery, Killings moved for summary judgment

on Uptown Community Partners’s claims.           The trial court granted summary

judgment to Killings, and Killings dismissed her counterclaims.

         {¶4}   In its sole assignment of error, Uptown Community Partners asserts

that the trial court erred when it granted summary judgment to Killings. Summary

judgment is proper when (1) there remains no genuine issue of material fact, (2) the

moving party is entitled to judgment as a matter of law, and (3) reasonable minds




                                          2
                     OHIO FIRST DISTRICT COURT OF APPEALS



can come to but one conclusion, and with the evidence construed in favor of the

party against whom the motion is made, that conclusion is adverse to that party.

Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364

N.E.2d 267.

       {¶5}    We note that the lease section referred to in the eviction notice—

Section   23(d)(1)(b)—does     not   exist.       Section   23(2)(b)   defines   material

noncompliance as “repeated minor violations of the lease that * * * adversely affect

the health or safety of any person or the right of any tenant to the quiet enjoyment to

the leased premises and related project facilities.” Uptown Community Partners

presented no evidence of repeated minor violations of the lease by Killings.

       {¶6}    R.C. 5321.05 delineates a tenant’s obligations under Ohio law. A plain

reading of the statute makes clear that a tenant cannot be held liable for damage to

an apartment caused by the negligent acts of another person. Rather, the tenant’s

obligations are limited to personally refraining from and forbidding others from

damaging the apartment. R.C. 5321.05(A)(6). The evidence in this case is that

Killings was not in the apartment when any damage by the babysitter occurred.

Accordingly, Killings could not be held liable for the actions. See Ohio Casualty Ins.

Co. v. Wills (1985), 29 Ohio App.3d 219, 504 N.E.2d 1164; Allstate Ins. Co. v. Dorsey

(1988), 46 Ohio App.3d 66, 545 N.E.2d 920.

       {¶7}    Uptown Community Partners argues that Section 11 of the lease

allows it to terminate the lease with Killings. Under that section, Killings agreed that

“[w]henever damage is caused by carelessness, misuse, or neglect on the part of the

Tenant, his/her family or visitor, the Tenant agrees to pay: the cost of all repairs and

do so within 30 days after receipt of the Landlord’s demand for repair damages.”

Under R.C. 5321.06, a lease may include any terms “governing the rights and



                                              3
                      OHIO FIRST DISTRICT COURT OF APPEALS



obligations of the parties that are not inconsistent with or prohibited by Chapter

5321.”    But where a lease term is inconsistent with R.C. Chapter 5321, it is

unenforceable. See Dorsey, supra, at 68. We conclude that the lease’s provision that

makes a tenant liable for the negligent actions of another person is inconsistent with

the obligation imposed by R.C. 5321.05(A)(6), and that the provision is therefore

unenforceable.

         {¶8}    Uptown Community Partners contends that other courts have held

that tenants can be held liable for the negligent acts of other persons and that tenants

can be held liable for other persons’ acts even if the tenants were unaware of the acts.

In Wayne Mut. Ins. Co. v. Parks, 9th Dist. No. 20945, 2002-Ohio-3990, the court

held that R.C. Chapter 5321 did not prohibit inclusion of a joint and several liability

clause in a lease involving multiple lessees.      As we discussed, the provision in

Uptown Community Partners’s lease with Killings squarely conflicts with R.C.

5321.05(A)(6). The clause in question in Parks did not conflict with R.C. Chapter

5321. The other case relied on by Uptown Community Partners involved tenants

being evicted for the drug activity of their non-tenant relatives or guests, even though

the tenants were allegedly unaware of the activity. Dept. of Housing and Urban Dev.

v. Rucker (2002), 535 U.S. 125, 122 S.Ct. 1320. But the lease terms in Rucker were

specifically required by federal law. See Section 1437d(l)(6), Title 42, U.S. Code. In

the case before us, there is no federal law that requires that a tenant be held liable for

the negligence of others. We conclude that the cases are inapposite to the case before

us.

         {¶9}    Because it conflicts with Ohio law, the provision in the lease that

would make Killings liable for the negligent acts of her babysitter is unenforceable.

The trial court properly granted summary judgment to Killings. The sole assignment



                                            4
                     OHIO FIRST DISTRICT COURT OF APPEALS



of error, being without merit, is overruled, and we therefore affirm the judgment of

the trial court.

                                                                 Judgment affirmed.



D INKELACKER , P.J., and H ILDEBRANDT , J., concur.


Please Note:
       The court has recorded its own entry this date.




                                           5
