Rose v. Kent State Univ. ( 2011 )

[Cite as Rose v. Kent State Univ., 2011-Ohio-1432.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
MARJORIE E. ROSE, et al.
Plaintiffs
v.
KENT STATE UNIVERSITY
Defendant
Case No. 2010-01239
Judge Clark B. Weaver Sr.
ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
{¶ 1} On January 28, 2011, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On March 7, 2011, plaintiffs filed a response with leave of
court. The motion is now before the court for a non-oral hearing pursuant to Civ.R. 56
and L.C.C.R. 4.
{¶ 2} Civ.R. 56(C) states, in part, as follows:
{¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that 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, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Case No. 2010-01239 -2- ENTRY
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
{¶ 4} According to the complaint, plaintiff, Marjorie E. Rose (hereinafter
“plaintiff”), enrolled in an educational program at defendant’s “Geauga Twinsburg
Center,” located at 8997 Darrow Road, Twinsburg, Ohio. Plaintiff, who is disabled and
uses crutches to ambulate, alleges that on the first day of class, she slipped and fell on
a ramp at the rear entryway of the premises. Plaintiff brings this claim for negligence,
alleging that defendant failed to properly maintain the ramp.
{¶ 5} Defendant contends that the city of Twinsburg owns the building where
the Geauga Twinsburg Center is located, that defendant leases only a portion of the
space within the building, and that the ramp where plaintiff fell is located in a common
area outside the building, which defendant has no duty to maintain. In response,
plaintiff concedes that the ramp is in a common area outside the leased premises, but
she argues that defendant had a duty under the lease to ensure that the building
afforded “adequate access for disabled individuals” in compliance with all applicable
laws and regulations.
{¶ 6} Liability in tort for injuries arising from the defective condition of property is
dependent upon occupation or control of the premises. Mitchell v. Cleveland Elec.
Illuminating Co. (1987), 30 Ohio St.3d 92, 94. That is, “in order to have a duty to keep
premises safe for others, one must be in possession and control of the premises.”
Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130, 132, 1995-Ohio-203. With respect
to premises liability in a landlord-tenant relationship, a landlord thus “has the duty to
exercise reasonable care to maintain the parts of the premises retained in his control for
the common use of the tenants in a reasonably safe condition.” Stitch-In-Time, Inc. v.
Kreisher (May 1, 1975), Franklin App. No. 75AP-14. “[A] landlord retains possession
and control over stairways, passageways, and approaches where the use of such
Case No. 2010-01239 -3- ENTRY
approaches is necessary to gain access to the premises, unless there is evidence to the
contrary.” Young v. Mager (1974), 41 Ohio App.2d 60, 63.
{¶ 7} In support of its motion, defendant submitted the affidavit of John Granny,
who is employed by defendant as a business services administrator. Therein, Granny
states that the building which houses the Geauga Twinsburg Center is a former school
owned by the city of Twinsburg. According to Granny, the city of Twinsburg has leased
a portion of the building to defendant since 2003, another portion is leased to the United
Auto Workers, and the city of Twinsburg retains the gymnasium portion of the building
for use as a community theater. Granny states that the ramp where plaintiff fell is “a
common entrance for use by all tenants and occupants of the building, as well as their
patrons.”
{¶ 8} In his affidavit, Granny also authenticates an attached copy of the lease
agreement that defendant and the city of Twinsburg executed in 2003. According to
Granny, the agreement was renewed several times and remained in effect at the time of
plaintiff’s fall. The agreement states, in part:
{¶ 9} “1.) Demised premises. LESSOR demises the
entire second floor of the structure owned by LESSOR at the intersection of St. Rts. 91
and 82 and known as the Old School.
{¶ 10} “2.) Term and Rent. LESSOR demises the above
premises for a one (1) year period. In consideration of renovations to be accomplished
by LESSEE during the first year of the term, no further rent shall be payable for the first
year of the term. * * * It is specifically determined that the demised area consists of
4,200 square feet.
{¶ 11} “* * *
{¶ 12} “9.) Care and Maintenance of Interior Premises.
LESSOR and LESSEE intend to cooperate in the renovation and repair of the interior of
the demised premises as set forth above. LESSEE shall be responsible for all cleaning
and maintenance of the demised premises during occupancy of same.
Case No. 2010-01239 -4- ENTRY
{¶ 13} “* * *
{¶ 14} “11.) Ordinance and Statues [sic]. LESSEE and LESSOR shall comply
with all statues [sic], ordinances and requirements of all municipal, state and federal
authorities now in force, or may hereinafter be in force, pertaining to the premises,
occasioned by or affecting the use thereof by LESSEE.”
{¶ 15} Upon review of the memoranda and supporting materials submitted by the
parties, the only reasonable conclusion to draw is that the ramp where plaintiff fell was a
common approach to the building for the use of all tenants and occupants, and that the
city of Twinsburg thus retained possession and control of the ramp. The lease
conferred possession and control of only a portion of the building to defendant, and the
lease provided that defendant was responsible for repairing and maintaining only that
portion of the building.
{¶ 16} With respect to plaintiff’s argument that paragraph 11 of the lease required
both defendant and the city of Twinsburg to comply with all laws pertaining to the
premises, such a broad and general provision as this “merely confirms what the law
requires of all persons: compliance with the law.” Currier v. Penn-Ohio Logistics, 187
Ohio App.3d 32, 2010-Ohio-198, ¶40. This provision did not bind defendant to any
specific duty or obligation concerning a common area outside the leased premises, and
it does not support plaintiff’s claim of negligence.
{¶ 17} Based upon the foregoing, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.
_____________________________________
CLARK B. WEAVER SR.
Case No. 2010-01239 -5- ENTRY
Judge
cc:
John P. Reichley Katya Vyhouskaya
Assistant Attorney General 701 West Lakeside Avenue, Suite 402
150 East Gay Street, 18th Floor Cleveland, Ohio 44113
Columbus, Ohio 43215-3130
RCV/cmd
Filed March 14, 2011
To S.C. reporter March 22, 2011