Court of Appeals of Ohio, Fifth District, Tuscarawas
appeal from the Tuscarawas County Court of Common Pleas, Case
No. 2016 CT 06 0416
Plaintiff-Appellant STEVEN BRIAN.
Defendants-Appellees TIMOTHY YAHNER/EDWARD DARK.
Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. William
B. Hoffman, J., Judges.
Appellant appeals the May 4, 2017 judgment entry of the
Tuscarawas County Court of Common Pleas granting
appellees' motion for summary judgment.
& Procedural History
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...