[Cite as Nero v. CWV Family Hous., L.L.C., 2016-Ohio-3314.]


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

RHODA NERO                                               C.A. No.   27719

        Appellant

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
CWV FAMILY HOUSING, LLC                                  COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellee                                         CASE No.   CV 2014-04-2164

                                DECISION AND JOURNAL ENTRY

Dated: June 8, 2016



        MOORE, Judge.

        {¶1}     Plaintiff, Rhoda Nero, (“Tenant”) appeals from the judgment of the Summit

County Court of Common Pleas. This Court reverses and remands this matter for further

proceedings consistent with this decision.

                                                    I.

        {¶2}    Tenant leased a residential unit in a multifamily rental property which was owned

and operated by CWV Family Housing, LLC (“Landlord”). During her tenancy, Tenant was

walking down the stairs in the common area of the property when a step collapsed underneath

her, causing her to fall. In 2014, Tenant filed a complaint against Landlord alleging that she

suffered injuries due to Landlord’s failure to repair or maintain the stairs in the common area of

the property.

        {¶3}    Landlord answered the complaint and thereafter filed a motion for summary

judgment. Tenant opposed the motion. The trial court granted the motion. Tenant timely
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appealed, and she now presents two assignments of error for our review. We have consolidated

the assignments of error in order to facilitate our discussion.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT FOR
       [LANDLORD] BY FINDING THAT THERE WAS NO GENUINE ISSUE OF
       MATERIAL FACT REGARDING [LANDLORD’S] DUTY TO REPAIR AND
       MAINTAIN THE STAIRS.

                                 ASSIGNMENT OF ERROR II

       THE COURT ERRED BY FINDING THAT [TENANT] HAD ABANDONED
       COUNT II OF THE COMPLAINT.

       {¶4}    In her first and second assignments of error, Tenant argues that the trial court

erred in granting summary judgment in favor of Landlord on the first and second counts in her

complaint, respectively.

       {¶5}    We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts

of 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).

       {¶6}    Pursuant to Civ.R. 56(C), summary judgment is proper only if:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

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

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). “If the
                                                 3


moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied.” Id. at 293. Only where the moving party fulfills this initial burden, does the burden

shift to the nonmoving party to prove that a genuine issue of material fact exists. Id.

       {¶8}    Here, with respect to the first count of Tenant’s complaint, she maintained that

Landlord was negligent in that it failed to maintain the stairs and make necessary repairs to the

steps in the apartment complex. She also maintained that Landlord failed “to keep the apartment

stairs up to code.”

       {¶9}    In Landlord’s motion for summary judgment, it addressed the issues applicable to

this case by reference to common law premises liability, specifically the duty owed by premises

owners/occupiers to invitees, citing Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No.

08CA41, 2009-Ohio-4542, ¶ 26-27.         In connection with this body of case law, and citing

Tenant’s deposition and Landlord’s executive manager’s affidavit in support, Landlord

maintained that it had no notice of any dangerous condition as to the steps, and that it performed

regular inspections on the premises. Tenant responded also citing cases relative to the duty owed

to invitees, see, e.g. Hidalgo v. Costco Wholesale Corp., 9th Dist. Lorain No. 12 CA010191,

2013-Ohio-847, and she maintained that there existed a triable issue on whether Landlord

conducted reasonable inspections.

       {¶10} However, in its journal entry, the trial court did not discuss common law premises

liability aside from quoting Shump v. First Contintental-Robinwood Assocs., 71 Ohio St.3d 414,

418, 1994-Ohio-427, for the following proposition: “The legal duty that a landlord owes a tenant

is not determined by the common-law classifications of invitee, licensee, and trespasser under

the law of premises liability; instead, a landlord’s liability to a tenant is determined by a

landlord’s common-law immunity from liability and any exceptions to that immunity that a court
                                                4


or a legislative body has created.” The trial court then went on to cite case law and statutes

pertaining to a landlord’s duties as codified in the Landlord-Tenant Act. See Mann v. Northgate

Investors, L.L.C., 138 Ohio St.3d 175, 2014-Ohio-455, ¶ 4, and R.C. 5321.04. The statutory

duties include keeping the premises in a fit and habitable condition, and keeping common areas

of the premises in a safe condition. See R.C. 5321.04(A)(2) and (A)(3). The trial court then

cited case law that pertains to a landlord’s liability predicated on negligence per se, in that, to

succeed on such a claim, the plaintiff must establish proximate cause and that Landlord had, or

should have had, notice of the violation of the statute. See Sikora v. Wenzel, 88 Ohio St.3d 493,

496-497, 2000-Ohio-406. The court then discussed the summary judgment evidence relative to

Landlord’s lack of notice of a defect in the step and inspections of the steps. The court

determined that this evidence established that Landlord took steps to inspect the relevant areas of

the premises and that Tenant failed to provide “factual support for its contention” that Landlord’s

inspection of the steps was “inadequate.”    The court then determined that summary judgment

was appropriate on the first count of the complaint.

       {¶11} Our review of the issue of whether summary judgment was properly granted on

the first count of the complaint is hampered because we cannot discern the trial court’s legal

basis for awarding summary judgment. This is because the trial court appears to suggest that it

was not applying law relative to a premises owner’s duty to its invitees, which was the legal

basis on which the parties had focused, but the court does not indicate why it was incumbent on

Landlord to inspect the premises. Accordingly, we cannot discern the legal standard against

which it judged the evidence of the adequacy of the inspections, e.g. whether the court was

applying the common law premises liability standard, if it was looking to some other affirmative
                                                  5


duty of a landlord to inspect the premises, or if it was looking to the inspections for purposes of

whether Landlord should have known of the defect for purposes of negligence per se.

       {¶12} Therefore, because we cannot discern the trial court’s basis for the award of

summary judgment on the first count of the complaint, we sustain Tenant’s first assignment of

error on this basis and remand this matter to the trial court to clarify its reasoning. See Hunt v.

Alderman, 9th Dist. Summit No. 27416, 2015-Ohio-4667, ¶ 19.

       {¶13} With respect to the second count of the complaint, Tenant maintained that

Landlord owed a duty to keep the common areas of the apartment complex safe under the terms

of the lease executed between the parties. In a footnote in the trial court’s journal entry, the court

concluded that it appeared that Tenant had abandoned this count.

       {¶14} We see no basis in the record for the trial court’s determination that Tenant

abandoned the second count of the complaint. There was no mention in Landlord’s motion for

summary judgment regarding whether it was contractually obligated to repair or maintain the

steps in any particular fashion pursuant to the terms of the lease. Accordingly, the burden did

not shift to Tenant to establish that a triable issue existed as to this claim. See Dresher, 75 Ohio

St.3d at 293.

       {¶15} Accordingly, Tenant’s second assignment of error is sustained.

                                                 III.

       {¶16} Tenant’s assignments of error are sustained. The judgment of the trial court is

reversed, and this matter is remanded for further proceedings consistent with this decision.

                                                                                 Judgment reversed,
                                                                                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 to Appellee.




                                                      CARLA MOORE
                                                      FOR THE COURT


SCHAFER, J.
CONCURS.

CARR, P. J.
DISSENTING.

        {¶17} I respectfully dissent. I would reverse on the basis that there are issues of material

fact.


APPEARANCES:

SEAN BUCHANAN, Attorney at Law, for Appellant.

JOSEPH K. OLDHAM, Attorney at Law, for Appellee.
