Waugh v. Lynch

[Cite as Waugh v. Lynch, 2014-Ohio-1087.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100432
PENNIE WAUGH, ET AL.
PLAINTIFFS-APPELLANTS
vs.
JOHN LYNCH
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-786806
BEFORE: Rocco, P.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: March 20, 2014
ATTORNEY FOR APPELLANTS
James D. Falvey
Miller, Stillman & Bartel, L.L.C.
1422 Euclid Avenue
Suite 800
Cleveland, OH 44115
ATTORNEYS FOR APPELLEE
Shannon M. Fogarty
Christine M. Kuntz
Davis & Young
1200 Fifth Third Center
600 Superior Avenue, East
Cleveland, OH 44114
KENNETH A. ROCCO, P.J.:
{¶1} In this appeal assigned to the accelerated calendar pursuant to App.R. 11.1
and Loc.App.R. 11.1, plaintiff-appellant Pennie Waugh1 appeals from the trial court’s
decision to grant summary judgment to defendant-appellee John Lynch, thus terminating
Waugh’s personal injury action.
{¶2} The purpose of an accelerated appeal is to permit this court to render a brief
and conclusory opinion. McGill v. Jameson Props., 8th Dist. Cuyahoga No. 89102,
2007-Ohio-4679.
{¶3} Waugh presents one assignment of error, arguing that summary judgment in
Lynch’s favor on her complaint was improper because the record contains a suggestion
that Lynch may have destroyed evidence that would support her negligence claim.
Because summary judgment cannot be prevented by mere suggestion, this argument is
unpersuasive.
{¶4} Waugh’s injury took place at a multi-family residential building Lynch
owned. At the time of the injury, she had been living in the upstairs unit for a week or
two. Waugh noticed nothing wrong with the rear exterior stairway, although she used
the stairway “every day.”2
1Waugh’s husband Billy was also a plaintiff in the action, but Waugh will be
referred to in the singular herein for ease of reference.
2Quotes are taken from the deposition transcripts presented to the trial court.
{¶5} On the morning of July 10, 2010, a “beautiful” day, she exited her unit,
proceeded down the outside stairway, and as she “put [her] left foot on the seventh stair
[tread],” she felt the tread give way and she fell through, becoming trapped between the
treads. Waugh’s husband noticed her predicament and extricated her. A few hours
later, Waugh went to the hospital where she was treated for scrapes and contusions of her
legs.
{¶6} Bradley Sopczak acted as a handyman for Lynch’s residential properties.
Upon learning of Waugh’s accident, he inspected the outside stairway and noticed that the
one of the underlying wooden braces for the seventh step had “given way.” As he
described it, the brace came away from the step tread because the “nails were pushed out
from weight.” Sopczak saw “no dry rot or anything like that.”
{¶7} Prior to Waugh’s accident, neither Sopczak nor Lynch had ever been aware
of any problems with the outside staircase, although some railings had been replaced a
few years previously. Sopczak took photographs of the damaged tread before he
repaired it. Sopczak provided these photos to Lynch, however, by the time of his
deposition, Lynch could not recall either receiving or having seen them.
{¶8} Waugh eventually filed this action in the trial court seeking compensation for
her injuries, alleging that the stairs had been “negligently maintained” by Lynch and that
Lynch had breached his statutory duties as a landlord to “comply with the requirements of
all applicable building, housing, health and safety codes” for the premises, as required by
R.C. 5321.04(A). After Lynch filed his answer denying the allegations, he filed a motion
for summary judgment. Waugh filed a brief in opposition to Lynch’s motion.
{¶9} Each party relied upon the depositions that were filed in the trial court for
support. The trial court granted summary judgment in Lynch’s favor.
{¶10} Although Waugh argues summary judgment was inappropriate because
“[t]he fact that [she was] unable to prove that the step in question was rotted should not
be held against” her, her argument ignores the requirements of Civ.R. 56. As stated in
Hemphill v. Swan Park Apts., 6th Dist. Lucas No. L-95-247, 1996 Ohio App. LEXIS 171(Jan.26, 1996):
Initially, the party seeking summary judgment bears the burden of
delineating which areas of the opponent’s claim raise no genuine issues of
material fact. The moving party may support its assertions “by affidavits or
otherwise as allowed by Civ.R. 56(C)” Mitseff v. Wheeler (1988), 38 Ohio
St. 3d 112, 115, 526 N.E.2d 798. Once the moving party meets its burden,
the non-moving party must produce evidence on the issue or issues
identified by the movant for which it bears the burden of production at trial.
Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, 570
N.E.2d 1095, paragraph three of the syllabus.
Generally, a landlord retains control of the common areas of his leased premises,
and has a duty to his tenants and their family members, employees and guests “to exercise
ordinary care to keep the same in a reasonably safe condition.” Davies v. Kelley (1925),
112 Ohio St. 122, 146 N.E. 888, at paragraphs one and two of the syllabus. In cases
“where negligence revolves around the question of the existence of a hazard or defect,”
notice, either actual or constructive, of the hazard or defect[,] is a prerequisite to such a
duty. Heckert v. Patrick (1984), 15 Ohio St. 3d 402, 405, 473 N.E.2d 1204.
In order to show that a landlord had constructive notice, an injured plaintiff has the
burden of showing that the defect in question must have existed for such a length of time
that the landlord, by exercising reasonable care, should have discovered it. Young v.
Mager (1974), 41 Ohio App. 2d 60, 63-64, 322 N.E.2d 130.
(Emphasis added.)
{¶11} In this case, both Lynch and Sopczak testified that, prior to Waugh’s accident, they had no
awareness of any problems with the rear exterior staircase, and that no one had indicated otherwise.
Sikora v. Wenzel, 88 Ohio St.3d 493, 727 N.E.2d 1277 (2000) (landlord neither knew nor should have
known of the condition giving rise to the violation of R.C. 5321.04(A)(1), therefore, his violation was
excused and he was not liable to the tenant for failing to comply with the statute). Sopczak
categorically denied that the treads were rotted either prior to Waugh’s accident or when he repaired the
tread afterward. Sopczak additionally testified that the “city does inspections.”
{¶12} In the face of this evidence, Waugh presented no contrary evidence. She merely
speculates that Lynch “discarded” Sopczak’s photos, and that Lynch did so because the photos showed
rot in the wood. Speculation is insufficient to meet the requirements of a properly-supported motion
for summary judgment. Snider v. McTigue, 8th Dist. Cuyahoga No. 89092, 2007-Ohio-5065, ¶ 12;
Frankmann v. Skyline Mgt., 8th Dist. Cuyahoga No. 88807, 2007-Ohio-3922.
{¶13} Waugh admitted that she never noticed anything wrong with the exterior stairway, so she
had no reason to contact Lynch about its condition. Sikora, 88 Ohio St.3d 493, 727 N.E.2d 1277(2000), approved by Mann v. Northgate Investors, L.L.C., Slip Opinion No. 2014-Ohio-455. Waugh
also failed to produce any documentary evidence that demonstrated that the city’s regular inspections
revealed the existence of defects in the rear exterior staircase. Snider at ¶ 12; compare Wallace v.
Golden Comb, 8th Dist. Cuyahoga No. 99910, 2013-Ohio-5320, ¶ 6 (plaintiff’s evidence showed
handrail that came away from the wall and caused injury was “attached to the wall by a single screw
placed into the drywall, and the attachment was not backed up by a stud or any blocking material, in
violation of the [city’s] building code.”)
{¶14} Under these circumstances, the trial court’s decision was correct.
{¶15} Waugh’s assignment of error, accordingly, is overruled, and the trial court’s order is
affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR