[Cite as Wallace v. Golden Comb, Inc.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99910

SCOTT J. WALLACE PLAINTIFF-APPELLANT

vs.

GOLDEN COMB, INC., ET AL. DEFENDANTS-APPELLEES

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-780023

BEFORE: McCormack, J., Stewart, A.J., and Blackmon, J.

RELEASED AND JOURNALIZED: December 5, 2013 ATTORNEYS FOR APPELLANT

Richard C. Alkire Dean C. Nieding Richard C. Alkire Co., L.P.A. 250 Spectrum Building 6060 Rockside Woods Blvd. Independence, OH 44131

ATTORNEYS FOR APPELLEES

For Golden Comb, Inc., et al.

Robert J. Koeth Ann E. Leo Koeth, Rice & Leo Co., L.P.A. 1280 West 3rd Street Third Floor Cleveland, OH 44113

For Medical Mutual of Ohio, Etc., et al.

Lisa A. Pavlik ACS Recovery Services, Inc. 1301 Basswood Road Schaumburg, IL 60173 TIM McCORMACK, J.:

{¶1} Plaintiff-appellant, Scott J. Wallace, appeals from a judgment of the

Cuyahoga County Court of Common Pleas that granted summary judgment in favor of his

landlord Grace Apicella and her company, Golden Comb, Inc. Wallace was injured by

an improperly constructed staircase, where a handrail was not attached to a stud, in

violation of the building code. After a careful review of the case law regarding landlord

liability, we reverse the judgment of the trial court and remand the matter for further

proceedings consistent with this opinion.

Substantive Facts and Procedural History

{¶2} The facts in this case are undisputed. Apicella is the owner of Golden

Comb, Inc., which operates a hair salon on the first floor of a property located at 7579

Broadview Road in Seven Hills. She bought the property in 1995, with the intent of

renovating it into a hair salon and two apartments, one in the basement and one on the

second floor of the building.

{¶3} For the renovation project, Apicella hired an architect to prepare the

drawings and specifications and J&M Design Build to act as the contractor for the

project. She also applied to the city of Seven Hills for the alteration to the property, and

the city approved of it. The city, however, advised Apicella and Golden Comb, Inc. that

it would be the property owner’s responsibility to comply with the Ohio Basic Building

Code (“OBBC”). The city inspected the construction at various stages and issued an

occupancy permit when the renovation was completed in 1998. The apartments were rented since then without incidents until an incident occurred in the stairway twelve years

later.

{¶4} On March 19, 2011, Wallace, a tenant,1 came home to the apartment in the

evening, with three bags of groceries on his right arm. As he climbed up the staircase to

his second-floor apartment, he held onto the handrail with his left hand. As he reached

the top of the stairway at the second floor landing, he put his left hand at the end of the

handrail. He placed his right foot on the landing, and as he lifted his left foot to the

landing, the handrail pulled out of the wall. He lost his balance and fell to the bottom of

the steps.

{¶5} Wallace suffered fractures in his rib, cervical spine, pelvis, and tail bone.

He spent nine days in the hospital and required physical and occupational therapy,

incurring $93,000 in medical bills.

{¶6} It turns out the handrail 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 building code.

{¶7} Wallace filed a lawsuit against Apicella and Golden Comb, Inc.

(collectively hereafter as “appellee landlord”). Depositions were taken of Wallace,

Apicella, a city building official, and other tenants of the building.

Wallace’s friend, Norm Reid, was the tenant in the second-floor apartment. In 2009, 1

Wallace moved into Reid’s apartment, with Apicella’s approval. Wallace paid Reid an amount per month toward the rent. {¶8} Appellee landlord moved for summary judgment, which the trial court

granted. Wallace now appeals from that judgment. His single assignment of error

states: “The trial court committed reversible error when it granted defendants-appellees

Golden Comb Inc. and Grace Apicella’s motion for summary judgment.”

{¶9} Summary judgment is appropriate when: (1) there is no genuine issue of

material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after

construing the evidence most favorably for the party against whom the motion is made,

reasonable minds can reach only a conclusion that is adverse to the nonmoving party.

Civ.R. 56(C). We review the trial court’s judgment de novo. Grafton v. Ohio Edison

Co.,

,

,

.

Landlord’s Duty and Liability

{¶10} “At common law, a landlord was charged with a general duty to exercise

reasonable care to keep the premises retained in his control for the common use of his

tenants in a reasonably safe condition.” Brady v. Koehnke, 1st Dist. Hamilton No.

C-930240,

, *5 (Sept. 7, 1994). In 1974, Ohio’s legislature

enacted R.C. Chapter 5321 (the Landlords and Tenants Act), “in an attempt to clarify and

broaden tenants’ rights as derived from common law.”

citing Shroades v. Rental

Homes, Inc.,

,

(1981).

{¶11} Specifically, R.C. 5321.04(A)(4) sets forth a landlord’s duty as follows:

(A) A landlord who is a party to a rental agreement shall do all of the following: (1) Comply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety;

(2) Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.

{¶12} R.C. 5321.04(A) “requires landlords to conform to a particular standard of

care, the violation of which constitutes negligence per se.” Walker v. RLI Ents., 8th

Dist. Cuyahoga No. 89325,

, citing Sikora v. Wenzel,

,

,

.

{¶13} Here, it is undisputed Wallace was injured by a handrail improperly attached

to the drywall without a stud, in violation of the building code. It is also undisputed that

the handrail was constructed by a contractor hired by appellee landlord and, furthermore,

there was never any problems with the faultily attached handrail until the incident in

2011.

{¶14} Appellee landlord argues that a landlord is excused from liability if he or she

has no notice of the defective condition. The issue presented in this appeal is, therefore,

whether a landlord can be liable for a tenant injured by a defective condition of the

premises, which had been negligently constructed by an independent contractor hired by

the landlord, when the landlord — or the tenant — did not know of the defective

condition. To resolve this issue, a careful review of the case law on landlord liability is

in order.

Strayer {¶15} The first question is whether an independent contractor’s negligence can be

imputed to the landlord. The law on this issue has long been settled in Ohio. Hughes

v. Ry. Co.,

, 475,

(1883) (owner of real estate

cannot “relieve himself from liability by contracting with others for the performance of

work, where the necessary or probable effect of the performance of the work would injure

third persons”). This legal principle is again clearly set forth by the Supreme Court of

Ohio, almost 100 years later, in Strayer v. Lindeman,

,

(1981).

{¶16} In Strayer, an independent contractor negligently caused a fire in the

premises while undertaking a plumbing repair. The court stated:

“A landlord who employs an independent contractor to perform a duty which the landlord owes to his tenant to maintain the leased property in reasonably safe condition is subject to liability to the tenant, and to third persons upon the leased property with the consent of the tenant, for physical harm caused by the contractor’s failure to exercise reasonable care to make the leased property reasonably safe.”

Id. at 34, quoting Restatement of the Law 2d, Property, Section 19.1, at 270 (1977).

{¶17} The court in Strayer stressed that the duties imposed by R.C. 5321.04 are

non-delegable, and held the following:

[W]hen a landlord employs an independent contractor to make repairs in compliance with the statutory duties imposed by R.C. Chapter 5321, the landlord cannot thereby insulate himself from liability arising out of the negligent performance of those repairs. Rather, the negligence of such independent contractor, if any, is imputable to the landlord. In such a situation, the general rule that the negligence of an independent contractor is not imputable to his employer does not apply. Id. at 36.2

{¶18} Strayer,

,

, has never been overruled.

Pursuant to the principle set forth in Strayer, therefore, appellee landlord in this case can

be subject to liability for the tenant’s injury caused by the independent contractor’s

negligent installing of the handrail.

Shroades

{¶19} Interestingly, on the same day Strayer was issued, the Supreme Court of

Ohio issued another opinion on landlord liability. In Shroades,

,

, the court expounded on the notion of negligence per se regarding a

landlord’s violation of a statutory duty. In that case, a tenant was injured by two broken

steps in a rarely used emergency – outside stairway, which the landlord had failed to

repair, despite having received a notice of the broken steps from the tenant.

{¶20} The question in Shroades was whether the tenant’s intervening act of using

the emergency stairs broke the causal connection between the landlord’s negligent act and

This court had explained the non-delegable duty doctrine as follows: 2

“Where danger to others is likely to attend the doing of certain work, unless care is observed, the person having it to do, is under a duty to see that it is done with reasonable care, and cannot, by the employment of an independent contractor, relieve himself from liability for injuries resulting to others from the negligence of the contractor or his servants.”

Rodic v. Koba, 8th Dist. Cuyahoga No. 77599,

(Dec. 7, 2000), quoting Richman Bros. v. Miller,

,

(1936), paragraph one of the syllabus. the tenant’s injury. In that case, the jury answered the question in the affirmative and

the Supreme Court of Ohio affirmed the jury’s verdict. The court stated the following:

R.C. 5321.04 imposes duties on the landlord to make repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. Furthermore, the purpose of the statute is to protect persons using rented residential premises from injuries. A violation of a statute which sets forth specific duties constitutes negligence per se. However, in addition to negligence per se, proximate cause for the injuries sustained must be established. Also it must be shown that the landlord received notice of the defective condition of the rental premises, that the landlord knew of the defect, or that the tenant had made reasonable, but unsuccessful, attempts to notify the landlord.

(Citations omitted.) Id. at 25-26.

{¶21} In the instant appeal, appellee landlord concedes the negligence of the

contractor is imputed to the landlord pursuant to Strayer,

,

, and that the failure of a landlord to comply with the duties imposed by R.C. 5321.04

is negligence per se. However, citing Shroades, defendant argues that in order for the

liability to attach, the landlord must have received notice (actual or constructive) of the

defect of the handrail.

{¶22} This case is not analogous to Shroades,

,

.

First, the main issue in Shroades was proximate causation. The syllabus of the case

stated: “A landlord is liable for injuries, sustained on the demised residential premises,

which are proximately caused by the landlord’s failure to fulfill the duties imposed by

R.C. 5321.04.” {¶23} Second, Shroades involved a patent defect known to the tenant. The court

concluded that the landlord’s failure to make the necessary repairs, despite receiving the

notice of the defective steps, violated the duty imposed by R.C. 5321.04(A)(2).

{¶24} In the present case, Wallace could not have given notice of the improper

attachment of the handrail to his landlord, because the defective handrail never

manifested itself before the incident. To interpret Shroades as requiring notice to the

landlord where the defect was not observable or known to the tenant is simply unfair, and

we do not believe Shroades should be interpreted to apply to such circumstances.

{¶25} Indeed, none of the cases cited by appellee landlord that held landlords will

be excused from liability where they had no notice of a defective condition involved

factual circumstances where the defect was unknowable to the tenant, such as the present

case. Almost all the cases cited by appellee landlord where the court required notice to

the landlord involve an observable or patent hazardous condition in the premises.

{¶26} For example, in Blount-White v. Pund, 8th Dist. Cuyahoga No. 86093,

, one of the cases relied on by the trial court here in granting summary

judgment, a tenant’s foot was or got caught in a gap in a riser on the stairs leading into the

house. This court held the landlord must have knowledge of the defective condition, or

the tenant must have informed the landlord of the defective condition. A gap in the riser

on the stairs, unlike the defectively attached handrail in this case, was an observable

condition. In Holloway v. McDaniel, 8th Dist. Cuyahoga No. 91599,

, a

drain for the washing machine became clogged and water backed up onto the basement floor on several prior occasions. The tenant slipped on the water and fell, but because

the landlord had not been notified of the drain problem, we held that the landlord was not

liable.

Sikora

{¶27} Indeed, we are not aware of any case law authority that predicates landlord

liability on a notice to the landlord where the defective condition in the premises is latent.

{¶28} Sikora,

,

,

, another

case from the Supreme Court of Ohio regarding landlord liability, appeared to be an

exception, on first glance. Sikora involved a latent defect in a deck, yet the court

required notice before the landlord could be found liable to a tenant injured by the

defective deck. A close reading of the case, however, shows that case is readily

distinguishable.

{¶29} In Sikora, a deck attached to a condominium collapsed during a party held

by one of the tenants. The collapse was caused by an improperly constructed deck, in

violation of the building code. The deck was built by a developer. The landlord in that

case purchased the condominium from the developer, after the deck had been constructed.

{¶30} The Sikora court first clarified the difference between the notions of

negligence per se and strict liability (i.e., liable per se). The court explained that, with

negligence per se, proof of a landlord’s violation of the statute dispenses with the plaintiff’s burden to establish the existence of a duty and the breach of that duty.

However, negligence per se did not mean the defendant is liable per se, because a

plaintiff still must prove the other elements of a negligence claim, i.e., proximate

causation and damages. Furthermore, the court explained that negligence per se and

strict liability differ in that a negligent per se statutory violation may be “excused.” Id.

at 497. Lack of notice is among the legal excuses recognized by the courts. Id.

{¶31} The Sikora court explained that R.C. 5321.04(A)(1), which required

landlords to comply with applicable building and safety codes, rendered a landlord in

violation of the statute negligent per se, but it did not create strict liability. A landlord

may be entitled to certain excuses, such as the lack of notice.

{¶32} After setting forth the law, the court then turned to the question of whether

the appellee landlord’s lack of notice of the defect in the deck excused the landlord. The

court emphasized that the appellee landlord was not involved during the construction.

Id. at 498. “Thus, no factual circumstances existed that would have prompted or

required [the appellee landlord] to investigate the process that occurred between the city

and the previous owner prior to his involvement. Given that [the appellee landlord]

neither knew nor should have known of the condition giving rise to the violation of R.C.

5321.04(A)(1), his violation is excused and he is not liable to [plaintiff] for failing to

comply with the OBBC.” Id. at 498.

{¶33} The court, therefore, held that “a landlord’s violation of the duties imposed

by R.C. 5321.04(A)(1) or 5321.04(A)(2) constitutes negligence per se, but a landlord will be excused from liability under either section if he neither knew nor should have known

of the factual circumstances that caused the violation.” Id.

{¶34} Sikora,

,

,

, was a

rare case where the defect was latent, just as in this case, yet the court required that the

landlord had notice before liability could attach. We recognize that in Strayer,

,

, the fire occurred during the contractor’s performance of work,

therefore notice of the defective repair work was not an issue there and Strayer did not

speak to the notice requirement. (For that reason, the Sikora decision did not mention

Strayer.) The question for us, therefore, is whether Sikora would require notice under

the circumstances of this case.

{¶35} There is a crucial factual distinction between Sikora and this case. The

Sikora holding turned on the fact that the landlord purchased the property after the

premises had been constructed and the landlord had no involvement at all during the

construction of the defective structure. The Sikora landlord could not have possibly

done anything to ensure the deck was constructed in compliance with the building code.

In contrast, here, appellee landlord selected the contractor and was involved throughout

the construction project. To find the landlord not liable because of a lack of “notice”

under the circumstances of this case contravenes the well-established legal principle set

forth in Strayer.

{¶36} That legal principle was recently affirmed by this court in Sivit v. Village

Green of Beachwood, 8th Dist. Cuyahoga No. 98401,

, where we stated “a landlord may not shift the responsibility to an independent contractor of complying with

laws designed for the physical safety of others.” Id. at ¶ 28, citing Shump v. First

Continental-Robinwood Assn.,

,

,

.

{¶37} In Sivit, a fire was caused by faulty electrical wiring contaminated by water

leaks within the building. The landlord claimed that liability should not attach because it

hired independent contractors for the construction of the property. This court rejected

the claim, emphasizing the landlord’s duties of complying with the laws to ensure the

physical safety of others are not delegable.

. We noted that “the landlord was

the developer of the property and maintained oversight on the project. We have

previously held that a developer of a condominium project is liable for construction

defects, notwithstanding the fact a general contractor was hired to perform the

construction work,” citing Point E. Condominium Owners’ Assn. v. Cedar House Assoc.

Co.,

,

(8th Dist. 1994).

{¶38} We went on to discuss whether the landlord could be excused by a lack of

notice, and we determined that the record shows that the landlord was on notice of the

conditions causing the fire, because the faulty electric wiring had manifested itself in

electrical surges, such as lights flashing off and on, lights dimming, water running

between the walls, mildew, light bulbs flashing on and off, and numerous false fire

alarms. Sivit, like most landlord liability cases, involved a defect that was patent and,

therefore, is distinguishable from the present case in that regard. {¶39} In conclusion, to predicate liability on a notice to the landlord when the

tenant had no way of knowing a latent defect that had been created by an independent

contractor employed by the landlord contradicts the long-established principle of landlord

liability. The trial court improperly granted summary judgment in favor of appellee

landlord in this case. Appellant’s assignment of error is sustained.

{¶40} The trial court’s judgment granting summary judgment is reversed, and the

case is remanded to the trial court for further proceedings consistent with this opinion.

It is ordered that appellant recover of said appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas 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.

______________________________________________ TIM McCORMACK, JUDGE

MELODY J. STEWART, A.J., and PATRICIA ANN BLACKMON, J., CONCUR