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Hickory Grove Investors, Ltd. v. Jackson

December 9, 2008

HICKORY GROVE INVESTORS, LTD., PLAINTIFF-APPELLEE,
v.
MICHAEL J. JACKSON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 05CVH12-13444).

The opinion of the court was delivered by: Klatt, J.

(REGULAR CALENDAR)

OPINION

{¶1} Defendants-appellants, Michael Jackson and Christina Deal, appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment to plaintiff-appellee, Hickory Grove Investors Limited ("Hickory Grove"). For the following reasons, we reverse and remand.

{¶2} In mid-December 2002, Jackson, Deal, and their family moved into an apartment owned by Hickory Grove. At that time, the Jackson-Deal family included the couple's two children and Deal's son, Daiqwon Deal.

{¶3} Sometime in July and/or August 2004, Hickory Grove constructed a six-foot-high, steel fence along a portion of the apartment complex's perimeter. The fence created a barrier between the apartment complex and the back of the neighboring shopping center. Intent upon preserving its tenants' safety, Hickory Grove installed the fence to prevent people from passing through its property to go to and from the shopping center. The fence consisted of approximately 20 vertical pickets between each post, with one horizontal railing banding the bottom of the pickets and two horizontal railings banding the top of the pickets. Each picket rose above the top horizontal railing.

{¶4} On September 2, 2004, ten-year-old Daiqwon decided to climb the fence to reach the shopping center on the other side. Daiqwon ran to the fence, jumped up and grabbed the top of the fence, and then shimmied up the pickets. He pushed himself up and over the top railing, and put his right foot on a four-foot chain-link fence located on the shopping center side of the fence. While moving his left foot to the chain-link fence, Daiqwon slipped and impaled himself on Hickory Grove's fence. One of the pickets pierced the underside of Daiqwon's jaw and tongue before exiting through his mouth. Fortunately, a neighbor heard Daiqwon's calls for help and summoned his parents. Jackson held Daiqwon up while Deal called 911. Emergency responders cut the fence railings on either side of Daiqwon to remove him from the fence, and then they airlifted him to Children's Hospital. Doctors removed the picket from Daiqwon's jaw and tongue and successfully treated his injuries.

{¶5} On October 8, 2004, Hickory Grove commenced a forcible entry and detainer action against Jackson in the Franklin County Municipal Court ("Municipal Court"). The complaint alleged that Jackson had not paid his rent for October 2004, and it sought to recover the rental amount and other unpaid charges via a claim for breach of contract. On October 18, 2004, Hickory Grove voluntarily dismissed the forcible entry and detainer action. After the dismissal, only the breach of contract claim remained pending against Jackson.

{¶6} For over a year, neither party took any action with regard to Hickory Grove's breach of contract claim. Then, on October 19, 2005, Jackson sought leave to file an answer and counterclaim. In the counterclaim, Jackson and Deal, on their own behalf and on behalf of Daiqwon, asserted claims for: (1) retaliatory eviction in violation of R.C. 5321.02, (2) common law negligence, (3) negligence per se based upon a violation of R.C. 5321.04, (4) violation of R.C. 5321.06 and failure to return Jackson's security deposit, (5) loss of consortium, (6) intentional infliction of emotional distress, and (7) negligent infliction of emotional distress. Defendants' second, third, fifth, sixth, and seventh claims all arose from Daiqwon's accident.

{¶7} The Municipal Court granted defendants leave to file the answer and counterclaim. Because defendants sought more than $15,000 in damages, the Municipal Court transferred the case to the Franklin County Court of Common Pleas. Defendants then filed an amended answer and counterclaim. Importantly, this pleading added an eighth claim for negligence per se based upon a violation of Columbus City Code ("C.C.C.") 4525.13.

{¶8} After conducting discovery, Hickory Grove filed a motion seeking summary judgment on defendants' claims for common law negligence, negligence per se based upon a violation of R.C. 5321.04, loss of consortium, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence per se based upon a violation of C.C.C 4525.13. On the same day, defendants filed a motion seeking summary judgment in their favor on three claims-the two claims for negligence per se and the claim that Hickory Grove evicted the Jackson-Deal family in violation of R.C. 5321.02.

{¶9} In relevant part, Hickory Grove argued that defendants could not present any evidence to prove that it violated C.C.C 4525.13, and thus, it contended that the trial court should grant summary judgment in its favor on defendants' negligence per se claim. C.C.C. 4525.13(b) states:

No person shall erect, construct or maintain any electric fence, barbed wire fence or a fence having wire or metal prongs or spikes within a residential district or on property which abuts residential property unless such fence is required to protect the public from hazardous equipment or from a club or commercial swimming pool.

Defendants asserted in their complaint that the fence had metal spikes, which meant that Hickory Grove's construction and maintenance of the fence violated C.C.C. 4525.13. Hickory Grove, however, presented affidavit testimony from Robert J. Beggs, the Managing Member of Hickory Grove, in which he stated that a Columbus Code Enforcement Officer had inspected the fence and Hickory Grove did not receive any citation. Additionally, Beggs directed the trial court to the fence ...


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