Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Callentine v. Mill Investments, LLC

Court of Appeals of Ohio, Fifth District, Tuscarawas

November 17, 2017

MILL INVESTMENTS, LLC, ET AL Defendants-Appellees

         Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 2016 CT 06 0416

          For Plaintiff-Appellant STEVEN BRIAN.

          For Defendants-Appellees TIMOTHY YAHNER/EDWARD DARK.

          Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J., Judges.


          GWIN, J.

         {¶1} Appellant appeals the May 4, 2017 judgment entry of the Tuscarawas County Court of Common Pleas granting appellees' motion for summary judgment.

         Facts & Procedural History

         {¶2} On June 16, 2016, appellant Francis Callentine filed a complaint against appellee Mill Investments, LLC, appellee Michael Kitchen ("Kitchen"), and William Walsh ("Walsh"). Mill Investments leased the property located at 118 East First Street in Uhrichsville to Joi and Cecil (Andy) Brown. Appellant alleged in his complaint that on November 9, 2012, when he was an invitee at 118 East First Street, he tripped and fell on an uneven porch and sidewalk. Appellant averred appellees were negligent by: creating a dangerous, hazardous, and latent peril upon the premises; subjecting him to a hidden danger and risk of injury known to appellees, but not reasonably discoverable by appellant; failing to warn appellant of a hazard known to appellees; failing to exercise reasonable care; and failing to maintain and keep the premises in good repair and free from nuisance.

         {¶3} Walsh filed a motion for summary judgment on October 11, 2016. Walsh stated he had not been affiliated with Mill Investments since 2002, when he transferred his entire ownership interest. The trial court granted summary judgment to Walsh on November 2, 2016.

         {¶4} Mill Investments and Kitchen filed a motion for summary judgment on February 14, 2017. Appellees alleged two doctrines barred appellant's negligence complaint: the two-inch rule and the step-in-the-dark rule. Further, appellees argued there was no evidence they had actual or constructive notice of the defect. Attached to the motion for summary judgment were the depositions and attached exhibits of Joi Brown, Cecil Brown, Kitchen, and appellant. Also attached to the motion for summary judgment was the affidavit of Phyllis Paul ("Paul"). Paul averred she took the photographs labelled Exhibits A and B, and she measured the deviation in height between the concrete slabs. Further, that at no point did the deviation in height depicted in Exhibits A and B equal or exceed two inches. The photographs show two concrete slabs and a tape measure showing the deviation in height of the concrete slabs is less than two inches.

         {¶5} Joi Brown stated in her deposition that she has lived at 118 East First Street in Uhrichsville for approximately five years. She lived at the home on November 9, 2012 and had moved into the residence approximately six months prior. She is a lifelong friend of appellant. Joi testified she was not home when appellant fell, but arrived home immediately after he fell; appellant told her he was stepping down and fell. She confirmed Exhibit J is a lease agreement she and her husband have with Mill Investments. Joi testified she was not aware of any problems with the porch or walkway to cause her any concern. She never made any complaints to appellees that there was any problem with the porch or walkway, or that it was dangerous or defective. She never called appellees regarding the walkway or porch, and neither did her husband. Joi denied that anyone else had fallen at that location.

         {¶6} Cecil Brown stated in his deposition that, prior to November 9, 2012, appellant had been to the house once or twice before. On November 9, 2012, appellant arrived at dusk. Cecil did not see appellant fall. Cecil stated no one, including him or his wife, complained to appellees about the walkway. Cecil testified no one fell prior to appellant in that area. However, down the way, a couple people fell by the front porch because it was icy.

         {¶7} In his deposition, Kitchen stated the lease indicates the landlord is responsible for repairs. Thus, if a problem is not caused by normal wear and tear, it would be the responsibility of Mill Investments to repair and problem and Mill Investments would be responsible for the costs of the repair. Kitchen stated that before he leases a property, he generally examines it to make sure it is in good condition. He walks through, makes sure the fixtures (heating, cooling, electric, water) function property. Kitchen does this examination of the property himself. Kitchen testified if there is a tenant living in a rental property, he may drive past the property every few months, but would not go inside unless there was a problem or complaint. Kitchen stated the back porch of the property at issue looked like Exhibit G when he bought the property in 2011.

         {¶8} When asked if the sidewalk looked like this with the height deviation prior to November 9, 2012, Kitchen stated, "Yes. I mean I don't - I would think so. I would assume so; I don't know." Kitchen continued, "I'm sure I walked over it several times without noticing there was a crack or elevation problem there. I am sure I walked over before, during, and after that time." Kitchen did not attempt to repair the sidewalk. Kitchen testified that neither the Browns nor any previous tenant made a request of him to repair the sidewalk. Prior to November 9, 2012, Kitchen had not been to the property since May of 2012. Kitchen stated there have been no repairs made to the back porch since November 9, 2012. As to the unevenness of the concrete, Kitchen testified he walked past it, several tenants walked past it, it caused him no concerns, and he did not notice the unevenness.

         {¶9} Appellant testified during his deposition that he went to 118 East First Street in Uhrichsville because his friend put in a new woodshop in his garage and wanted him to see it. Appellant arrived at 4:00 p.m. or 5:00 p.m. in the evening, and it was daylight when he arrived. Appellant stated the incident occurred, "a few hours after, " approximately two or three hours after, although appellant did not know the exact time. Appellant testified it was dark out when the incident occurred.

         {¶10} When appellant arrived at the home, he got out of his car and walked up to the porch via the steps and knocked on the back door. After Andy (what appellant called Cecil Brown) answered the back door, they went back down the steps and straight to the garage to look at Andy's woodshop. After exiting the woodshop, appellant and Andy walked back up onto the porch and went in the house, where Andy showed him around and where Joi, Andy, and appellant sat and talked. Appellant knows he spent a couple of hours there, as it was daylight when he arrived at the house and dark when he left. Appellant does not think it was raining or snowing that day and he believes the sidewalk was shoveled, but does not remember if there was snow on the ground. Appellant testified he was not distracted by anything when he stepped down. Appellant stated the cause of his fall was stepping into an uneven area.

         {¶11} Appellant testified he exited the house via the same door he came in, which was the back door. When he left the house, he stepped off the porch, stepped down, rolled his ankle, and snapped his foot. Due to the pain, he jumped in the air and flipped, coming down on his elbow, smashing his elbow into the sidewalk. Appellant stated that as he was exiting the door, it was dark outside. He thinks there may have been a porch light, but he does not know if it is was on when he left. However, even if it was on, it did not illuminate the area where he was walking.

         {¶12} Appellant stated he could see the porch, but there was a shadow over the sidewalk. Appellant marked on Exhibit G where he was standing on the porch right before he stepped down. Appellant does not remember what he was looking at when he stepped down, although he thought it might be stained or marbleized. Appellant testified he had no problem seeing the porch when he went into the house. However, he did not see the step or the elevation as he exited the house because of the shadow. Appellant stated the whole sidewalk was dark about from halfway back to the porch and was obscured because of shadows. When asked, "had there been sufficient lighting would you have been able to see the difference in elevation of the two abutting pieces of the sidewalk, " appellant responded, "Yes, I would have never stepped there." Appellant testified that had he looked down and seen the difference in elevation, he would have stepped somewhere else. However, he could not tell it was uneven.

         {¶13} Appellant testified Joi Brown told him that both she and her son tripped over the sidewalk. No one told appellant they complained to appellees about the porch or sidewalk. Appellant has no idea how long this condition existed. Appellant also testified he has no idea if the area where he fell violated any kind of building, health, housing, or safety codes. Appellant spent the remainder of the deposition detailing his injuries and treatment.

         {¶14} Appellant filed a memorandum in opposition to appellees' motion for summary judgment on March 8, 2017. Appellant argued that while appellees did not have actual notice of the defect, they should have known about the defect because Kitchen inspected the property before November 9, 2012. Further, that a determination about whether a condition is open and obvious is fact-specific. Finally, appellant conceded that the elevation difference was less than ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.