[Cite as Webster v. Shaw,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY

SHAILYN WEBSTER, ET AL., CASE NO. 16-15-08

PLAINTIFFS-APPELLANTS,

v.

ROBERT D. SHAW, ET AL., OPINION

DEFENDANTS-APPELLEES.

Appeal from Wyandot County Common Pleas Court Trial Court No. 13-CV-0120

Judgment Reversed

Date of Decision: April 11, 2016

APPEARANCES:

Ronald A. Annotico for Appellant

J. Alan Smith for Appellee Case No. 16-15-08

WILLAMOWSKI, J.

{¶1} Plaintiffs-appellants, Stacy Webster (“Stacy”), and her two minor

children, (collectively “Plaintiffs”), bring this appeal from the judgment of the

Common Pleas Court of Wyandot County, Ohio, granting a motion for summary

judgment in favor of Defendants-appellees, Robert Shaw (“Robert”) and Diane

Shaw (“Diane”) (collectively “the Shaws”). For the reasons that follow, we

reverse the trial court’s judgment.

Factual and Procedural Background

{¶2} In May 2009, Stacy and her husband, William Webster (“William”),

rented a residential property from the Shaws. The property was an older home,

from the early 1900s, which was partially renovated by the Shaws. The Shaws did

not provide the Websters with federally-mandated lead information or disclosures

with respect to the rental property. After about a month, Stacy’s two minor

children were diagnosed with high lead levels. An inspection of the rental

residence, conducted by the Ohio Department of Health in July 2009, revealed that

the premises contained lead-based paint. Stacy and her family vacated the

residence in October 2009.

{¶3} On December 18, 2013, Stacy and her minor children filed a

complaint against the Shaws alleging seven causes of action, including (I)

negligence, (II) negligence per se based on violation of state and federal statutes,

(III) breach of implied warranty of habitability, (IV) nuisance, (V) breach of

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express warranty, (VI) violation of 42 U.S.C. 4852d, and (VII) loss of consortium.

(R. at 1.) The Shaws denied the allegations. (R. at 7.) The Shaws also made

certain specific denials in their responses to Plaintiffs’ First Set of Requests for

Admissions. (R. at 8.) Among others, the Shaws denied any awareness that lead

paint may be dangerous to humans or that lead paint was used in homes

constructed prior to 1978. (Id.)

{¶4} The parties engaged in discovery, which included taking depositions

of Stacy, William, Diane and Robert. Thereafter, Plaintiffs moved for a partial

summary judgment on the issue of liability only as to counts two (negligence per

se) and six (violation of 42 U.S.C. 4852d). (See R. at 18.) The Shaws opposed

summary judgment and filed a cross motion for summary judgment in their favor

on all causes of action. (R. at 28.) The parties engaged in additional briefing and

jointly requested an extension of the discovery deadline. (See R. at 33.) The trial

court denied the request and instead proceeded to rule on the parties’ motions for

summary judgment. The trial court overruled Plaintiffs’ partial motion for

summary judgment and granted the Shaws’ motion for summary judgment,

dismissing the complaint.

{¶5} The trial court rejected the negligence, negligence per se, and nuisance

claims (counts one, two, and four), on the theory that the Shaws were absolved

from liability due to a lack of notice that a lead hazard was present on the

premises. With respect to count six, and “any claim in the Complaint” brought

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under 42 U.S.C. 4852d, the trial court determined that the minor plaintiffs lacked

standing to bring a suit over violation of the federal statute because they “were

neither lessees nor purchasers of the rental property,” and Stacy “appears to claim

no injury other than that which may be derived from lead being discovered in her

children’s systems.” (R. at 40, at 4-5.) The trial court did not expressly address

count three—breach of the implied warranty of habitability, count five—breach of

express warranty, or count seven—loss of consortium. These counts, or the trial

court’s failure to expressly address them, are not the subject of the assignments of

error or the issues before us. Plaintiffs raise one assignment of error, as quoted

below.

Assignment of Error

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS/APPELLEES

Standard of Review

{¶6} Under Civ.R. 56,

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor. -4- Case No. 16-15-08

Civ.R. 56(C); Parrish v. Jones,

,

, quoting

Civ.R. 56(C).

{¶7} The party moving for summary judgment has the initial burden “to

inform the trial court of the basis for the motion, identifying the portions of the

record, including the pleadings and discovery, which demonstrate the absence of a

genuine issue of material fact.” Reinbolt v. Gloor,

, 2001-

Ohio-2224,

(3d Dist.); accord Todd Dev. Co., Inc. v.

Morgan,

,

,

, ¶ 12. The burden

then shifts to the party opposing summary judgment.

In order to defeat

summary judgment, the nonmoving party may not rely on mere denials but “must

set forth specific facts showing that there is a genuine issue for trial.” Byrd v.

Smith,

,

,

, ¶ 10, quoting Civ.R.

56(E).

{¶8} “[B]ecause summary judgment is a procedural device to terminate

litigation, it must be awarded with caution.” Murphy v. Reynoldsburg,

,

(1992). The court must thus construe all

evidence and resolve all doubts in favor of the non-moving party, here Plaintiffs.

But if the evidence so construed fails to support the essentials of their claims,

summary judgment is proper. Welco Industries, Inc. v. Applied Cos.,

,

(1993). An appellate court reviews de novo a

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trial court’s decision on a motion for summary judgment. Esber Beverage Co. v.

Labatt USA Operating Co., L.L.C.,

,

.

Analysis

{¶9} Challenging the trial court’s ruling on appeal, Plaintiffs focus on the

theory of negligence per se and make no contentions with respect to the common

law negligence claim, as asserted in count one of the complaint, or with respect to

the remaining counts of the complaint. Indeed, the claim for violation of 42

U.S.C. 4852d, originally presented in count six of the complaint, is not argued

separately on appeal. Instead, Plaintiffs allege that violation of this federal statute

constitutes negligence per se.1

{¶10} “The concept of negligence per se allows the plaintiff to prove the

first two prongs of the negligence test, duty and breach of duty, by merely

showing that the defendant committed or omitted a specific act prohibited or

required by statute.” Lang v. Holly Hill Motel, Inc.,

, 2009-

Ohio-2495,

, citing Chambers v. St. Mary’s School,

, 565-566

,

. But the plaintiff in a

negligence per se action still has to prove proximate cause and damages. Sikora v.

Wenzel,

,

,

. Additionally,

“a negligence-per-se violation will not preclude defenses and excuses, unless the

1 As indicated above, although count six alleged a violation of 42 U.S.C. 4852d as a separate cause of action, this federal statute was also included among other statutes that formed basis for the negligence per se claim in count two of the complaint. (See R. at 1, ¶ 10.) It was also the subject of the summary judgment briefing. (See R. at 18, at 8-9; R. at 28, at 11.)

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statute clearly contemplates such a result.” Robinson v. Bates,

,

,

.

{¶11} Here, Plaintiffs’ negligence-per-se claims are based on R.C. 5321.04.

This statute lists ten obligations of a landlord who is a party to a rental agreement.

Among others, and as singled out by Plaintiffs on appeal, the statute requires that

the landlord:

(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.

(App’t Br. at 12, quoting R.C. 5321.04.) Plaintiffs claim that the presence of lead

on the premises rendered the property “unfit or in an uninhabitable condition,” in

violation of R.C. 5321.04(A)(2). (App’t Br. at 12.) They further assert that the

Shaws violated R.C. 5321.04(A)(1) by not complying with the federal statute

concerning lead disclosures, 42 U.S.C. 4852d.

{¶12} The Ohio Supreme Court has recognized 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.” Sikora at syllabus. The issue reviewed

by the trial court and raised on appeal is whether the Shaws knew or should have

known of the factual circumstances that rendered the rental property at issue unfit -7- Case No. 16-15-08

or uninhabitable. More specifically, did the Shaws know or should they have

known that lead-based paint was present on the premises. See Trammell v.

McDonald, 3d Dist. Defiance No. 4-04-15,

(holding that

under subsection (A)(2) of R.C. 5321.04, “[a] tenant must show that the landlord

had actual or constructive knowledge of the actual defect in order for liability to

attach under this subsection”); Rice v. Reid, 3d Dist. Crawford No. 3-91-34,

, *1 (Apr. 23, 1992) (“Notice to the landlord that a problem exists is

necessary before liability can be imposed on a landlord, pursuant to R.C.

5321.04.”); id. at 3 (“it would be unfair to impose liability on a landlord for the

presence of lead based paint and its resulting injuries unless he has notice that such

paint is present on his premises” (emphasis sic.)).

Notice of Lead-Based Paint on the Premises

{¶13} Ohio law recognizes that the notice of the defective condition on the

property may be actual or constructive. See Sikora, 88 Ohio St.3d at 495, 2000-

Ohio-406,

;

. The difference between the two types of

notice has been explained by some courts in terms relating to “the manner in

which notice is obtained or assumed to have been obtained.” In re Fahle’s Estate,

,

(6th Dist. 1950), syllabus; Manning v. Dept. of

Transp., 10th Dist. Franklin No. 96API07-931,

, *2 (Apr. 24,

1997); Howley v. Wythe Par. Homeowners Ass’n, Inc., 2d Dist. Montgomery No.

12506,

, *3 (Oct. 2, 1991). The Sixth District Court of Appeals

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observed that the actual notice includes “notice that a specific condition exists and

that it is harmful” as well as “ ‘knowledge or information of facts sufficient to put

a prudent man upon inquiry.’ ” Richardson v. Boes, 6th Dist. No. L-08-1015,

,

,

, quoting G/GM Real

Estate Corp. v. Susse Chalet Motor Lodge of Ohio, Inc.,

,

(1991); see also Johnston v. Faith Baptist Church, Inc., 3d Dist.

Allen No. 1-87-14,

, *6 (Apr. 26, 1989) (reviewing various

definitions of the term “notice”). Constructive notice can be imputed when it

appears that a condition “existed in such a manner that it could or should have

been discovered, that it existed for a sufficient length of time to have been

discovered, and that if it had been discovered it would have created a reasonable

apprehension of a potential danger or an invasion of private rights.” Beebe v. City

of Toledo,

,

(1958), paragraph two of the

syllabus; see also Faith Baptist Church, Inc., at *6-7; Johnston v. Filson, 12th

Dist. Clinton No. CA2014-04-007,

(“ ‘Actual notice’ ” is

defined as notice ‘given directly to, or received personally by, a party.’ Black’s

Law Dictionary, 1090 (8th Ed. 2004). ‘Constructive notice’ is notice ‘arising by

presumption of law from the existence of facts and circumstances that a party had

a duty to take notice of.’ Id.”).

{¶14} The trial court in this case determined that “there are insufficient

facts to impute notice of a hazardous condition, either actual or constructive, to the

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Defendants.” (R. at 40.) The trial court’s holding in effect meant that the Shaws

established a lack of notice and that Plaintiffs had no sufficient facts to dispute the

Shaws’ assertion that they did not know, nor should have known of the lead

presence on the premises. We start our de novo review by looking at the facts

relevant to the notice requirement in the light most favorable to Plaintiffs.

{¶15} The Shaws have been in the rental business since 1993 and they own

several rental properties. (R. Shaw Dep. at 11.) The Shaws bought the rental

property at issue in 1993 and they never had the house inspected. (Id. at 12, 28.)

They performed certain fixes and upgrades on the house upon purchasing it in

1993. (Id. at 13.) Some improvements were also performed in 2009, prior to

Plaintiffs moving in. (Id. at 20-21.) In May 2009, the Shaws executed a written

lease agreement with Stacy and William. The document included “a lead paint

disclosure saying this house, if it was built before [1978], it could have lead.” (Id.

at 30.) The disclosure further stated that lead-based paint “may place young

children at risk of developing lead poisoning,” which “may produce permanent

neurological damage.” (Def. Ex. C.)

{¶16} In his deposition, Robert testified that he was aware that the house

had been built in the early 1900s. (R. Shaw Dep. at 20.) At the time when he was

renting the property to the Websters, Robert knew that lead had been used in paint,

but he was not aware that lead was toxic to humans. (Id. at 32.) Robert further

testified that prior to this case being filed he never researched Ohio laws about

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landlords and tenants, never heard of the Ohio Landlord-Tenant Act, and he had

no idea that federal law required him to provide lead disclosure statements to his

tenants. (Id. at 17-18, 31.) In fact, he testified that he had no idea that anything

like lead hazard pamphlets or information about lead even existed. (31-32.) Upon

learning that the house had lead problems, Robert participated in a lead abatement

course and performed lead abatement on the property. (Id. at 11, 17-19.)

{¶17} Robert testified that he was “sure there was some” chipping or

peeling paint on the property in May 2009. (Id. at 23-24.) He admitted that the

paint on the porch was chipping when the Websters moved in and that he

promised to paint it. (Id. at 25.) He testified that the paint was from the 1950s and

it was “government-issued paint.” (Id. at 25.) He further stated, “Don’t know if it

had lead. Probably did. * * * as far as I know, before ‘78 a lot of paint had lead in

it.” (Id. at 26.) But he added that he only knew that because of the lead abatement

class that he took after being notified of the lead problem on his property,

“[b]efore that it was never anything you ever thought about.” (Id. at 26.) In spite

of reading newspapers and watching the news, Robert claimed he never learned

about lead hazards or the dangers of lead poisoning, until he received a letter from

the State of Ohio in the instant case. (See id. at 9, 17, 48.) Furthermore, in spite

of reading the lease, he claimed to have no knowledge of the possibility of lead-

based paint on the premises. (Id. at 29-31.) He stated, “I was aware that it said it

could have lead paint, but I had no idea what that even meant.” (Id. at 30.) He

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explained this deficiency by saying that the lease agreement was “a form letter,”

purchased at “Office Max or somewhere like that.” (Id. at 29, 31.)

{¶18} Diane’s deposition largely confirmed the facts in Robert’s testimony.

(See D. Shaw Dep.) Diane additionally testified that none of their other rental

properties had any issues with lead paint. (Id. at 28.) She testified that she had

never been to any kind of educational seminars for landlords and never learned

how to run a rental business. (Id. at 29.) Diane read the lease agreement, which

included the lead disclosure statement. (Id. at 45.) She admitted that the property

at issue was constructed prior to 1978 and that paragraph fifteen of the lease stated

that a residential dwelling built prior to 1978 “may present exposure to lead from

lead-based paint.” (Id. at 53.) She claimed, however, that paragraph fifteen did

not give her notice that her property might contain lead-based paint. (Id. at 52,

53.) Like Robert, Diane had little knowledge about lead and “never thought of it”

before 2009. (Id. at 50.) She was not aware of any federal laws concerning

documents that needed to be provided to tenants. (Id. at 57.) She believed the

property was safe for tenants when she rented it to the Websters. (Id. at 56-57.)

{¶19} In addition to Robert and Diane’s depositions, the trial court relied

on their affidavits attached to the cross-motion for summary judgment. (See R. at

28.) The affidavits indicated that the premises at issue had been rented to families

with young children before and that no prior tenants had ever been diagnosed with

lead poisoning or reported lead exposure from the residence. (Id., R. Shaw Aff. at

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¶ 9; D. Shaw Aff. at ¶ 9.) They further indicated that before this case, “[n]o

government housing agency or health agency had ever performed a lead

inspection” on the premises and they had never received any notices concerning

the possibility of lead in this residence. (Id. at ¶ 10.)

{¶20} On behalf of Plaintiffs, Stacy testified in her deposition that she

contacted the Shaws to tell them about the lead problem when she “knew both kids

had high lead,” which was before July 17, 2009, and before the Department of

Health conducted the home visit and found lead on the property. (S. Webster Dep.

at 82.) Stacy testified that when she later informed Robert that lead was found in

the house, “his response was, well, what did you do, let them lick the walls?” (Id.

at 59.) She further testified that Robert made a comment indicating that “they

wouldn’t have found out about the lead” if he had not rented to someone on

welfare, because he assumed that “it was because of welfare” that the children got

tested for lead. (Id. at 59.) No exact date of this conversation was provided, and it

is unknown whether it occurred before or after the Shaws received the letter from

the Department of Health informing them about lead presence on their premises.

Stacy testified, however, that she had called Robert twice. “The first time letting

him know that my children had high lead levels,” which was before the lead

testing in the house. (Id. at 61-62.) Stacy did not recall any statements made by

Robert during the first call. (Id. at 62.) The second call was when Stacy “let him

know there’s lead paint top to bottom, the entire house. * * * That’s when he got

- 13 - Case No. 16-15-08

upset” and made the statements at issue. (Id. at 59, 62.) There is some evidence

about a phone call from Robert to Stacy around July 30, indicating that the Shaws

had received the letter from the Ohio Department of Health, which according to

Robert was the first time he received any notice about lead hazards or the dangers

of lead poisoning. (Id. at 17, 86; Def. Ex. D.)

{¶21} Stacy did not recall any other statements made by the Shaws about

the issue of lead on the property. (S. Webster Dep. at 60, 63.) She conceded that

the Shaws never admitted to her that they had known the house had lead in it. (Id.

at 150.) When asked whether she had any reason to believe that the Shaws were

aware of the presence of lead, Stacy responded, “Upon the comment of, well, what

did you do, let your kids lick the walls, yeah, I kind of feel like he knew.” (Id. at

150.) She construed it as an admission. (Id. at 151.)

{¶22} Stacy’s husband, William testified in his deposition that when the

family moved in, on the first day, they had a conversation with Robert about the

paint on the front porch. (W. Webster Dep. at 31.) He stated that the paint on the

porch was “all bubbled; and every time you walked through, it like [tracked] in

with you wherever you went.” (Id. at 31-32.) William testified that Robert

rejected their offer to paint the porch by themselves. (Id. at 32.) William had no

other discussions with Robert about the topic. (Id. at 34.) He did not recall any

statements made by the Shaws indicating that they had knowledge about the lead

presence in the house at the time. (Id. at 34.)

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{¶23} The trial court’s conclusion based on these facts indicated that no

reasonable jury could “impute notice of a hazardous condition, either actual or

constructive, to the Defendants.” (R. at 40, at 9.) We disagree. The facts in the

record, when viewed in the light most favorable to Plaintiffs, cast some doubt on

Robert’s assertions of complete ignorance as to the lead issues before his taking

the lead abatement classes. They also cast doubt on the trial court’s statement in

the judgment entry that “Defendants were first notified that the rental home may

contain lead” following an inspection by the Department of Health. (R. at 40, at

3.) Stacy testified that she contacted Robert twice: first after she found out about

the children’s high lead levels, which was before the inspection by the Department

of Health, and second, after the inspection, to inform Robert that lead was found in

the house. While the inspection by the Department of Health confirmed that the

house contained lead, the first phone call from Stacy might have been the time

when the Shaws were first notified that the rental home may contain lead.

{¶24} Similarly, Robert’s statement to Stacy about the children licking

walls casts doubt on his testimony that he only knew about lead being present in

paint because of the lead abatement class, which he took after being notified of the

lead problem on his property. Although it is possible that Robert made the

comment after he had received the letter from the Department of Health, which

gave him some knowledge of the lead existence and its dangers, we do not have

actual dates of the letter receipt or the conversation in the record and summary

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judgment standard requires us to resolve the doubts in favor of non-movants.

Further, his comment that “they wouldn’t have found out about the lead,” suggests

a possibility that Robert wanted to hide the existence of lead on the premises. (S.

Webster Dep. at 59.)

{¶25} Another doubt that must be resolved in favor of Plaintiffs comes

from Robert and Diane’s acknowledgments that they had read the lease and the

lead paint disclosure, which talked about lead hazards in houses built prior to

1978, but they had absolutely no indication that their property, which was built

prior to 1978, could pose such hazard. Finally, Stacy disputed Robert’s assertion

of the lack of notice based on his comments to her, which created a conflict in

evidence that must be resolved by a trier of fact. (See S. Webster Dep. at 150,

151.)

{¶26} While the above facts do not necessarily prove that the Shaws knew

about lead presence on the property, they create a genuine issue on the material

fact of whether the Shaws had actual or constructive notice of the lead being

present on their property.

{¶27} We recognize that the trial court’s decision was based on several

appellate opinions in which the courts found that defendants proved lack of notice

as a matter of law. The first case on which the trial court relied was a landlord-

tenant case involving lead poisoning from our sister district, Patterson v. Ahmed,

6th Dist. Lucas No. L-09-1222,

. In that case, the plaintiffs were

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“Section 8 program” beneficiaries, which meant that the Lucas County

Metropolitan Housing Authority inspected the house before the plaintiffs moved

in. Id. at ¶ 3-4. It was “undisputed” that “the home passed the inspection required

by the Section 8 program prior to appellants’ tenancy,” and that the inspection

“looked for chipping, peeling, or cracking paint,” in order to assess “conditions

strongly associated with lead-based paint poisoning.” Id. at ¶ 4, 68. The plaintiff-

tenant testified that the paint was in good condition when she first moved into the

home, and she did not notice peeling and chipping paint until later into her

tenancy. Id. at ¶ 27. She did not ask the landlord to paint any portion of the

property until after increased lead levels were found in her children’s blood. Id. at

¶ 26, 31, 53-56.

{¶28} The Patterson court presumed for summary judgment purposes that

lead-based paint was present on the property at some point when the plaintiffs

resided there, even though there was no evidence of its presence at the

commencement of the lease. Id. at ¶ 11. The court also acknowledged that the

landlord had multiple rental residences and he had a “real estate salesperson”

license, which he obtained in the early 1990s, but he did not work as a real estate

agent. Id. at ¶ 4, 26. Although according to the landlord’s testimony, the licensing

classes or test “never covered the issue of lead-based paint,” the court charged the

landlord “with constructive knowledge of the hazards of lead-based paint in

housing, particularly as they relate to children,” based on local housing

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regulations. Id. at ¶ 24, 26. Yet, as to the issue of notice that the lead-based paint

was present on the rental premises at issue, the record “only support[ed] a finding

that appellees neither knew nor should have known” of it until after the plaintiff’s

children had been diagnosed with lead poisoning. Id. at ¶ 66. The court refused to

impute constructive notice of the paint being present on the premises, in spite of

the landlord’s real estate knowledge or experience. Id. at ¶ 69-71. The court

noted lack of any evidence that the scope of his real estate training or experience

should have put him on notice that this particular property contained lead-based

paint, especially considering the inspection and lack of any chipping and peeling

paint on the premises at the commencement of the tenancy. Id. at ¶ 69-71.

{¶29} This case is similar to Patterson in that it involved an experienced

landlord who nevertheless denied any knowledge of “the dangers of lead-based

paint,” until the beginning of the case at issue. Id. at ¶ 26. But the facts pertaining

to the presence of the lead hazard in the particular residence at issue differ. In

Patterson, the testimony was undisputed that no chipping or peeling paint was

noticed by anyone until some time after the tenant moved into the premises. The

issue of painting the premises in that case was not raised until after the children

had been diagnosed with lead poisoning. Finally, and most importantly, the

landlord in Patterson had an affirmative assurance that his property was lead-free,

in the form of an inspection by the Housing Authority. That inspection

contradicted an inference of a constructive notice “that a lead-based paint hazard

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existed on the property.” Id. at ¶ 68. In fact, the Patterson court held that the

passed inspection was such a strong evidence of the absence of a lead hazard on

the premises at the beginning of the plaintiff’s tenancy that even the fact that the

landlord received “written information regarding lead-based paint and the

potential health hazards that might be caused by peeling, chipping, and flaking

lead-based paint particles,” was not sufficient to impute constructive notice to the

landlord. Id. at ¶ 68. Indeed, in the absence of peeling, chipping, and flaking

paint, information about “the potential health hazards that might be caused by

peeling, chipping, and flaking lead-based paint particles” is not relevant to the

issue of whether the property owner knows of a lead hazard on the premises. See

id.

{¶30} In the instant case, it is undisputed that the chipping and peeling

paint was present and pointed out to Robert at the beginning of the lease. Stacy

and William requested that the porch be painted before lead was discovered in the

children’s system. Coupled with the disclosure in the lease, it could have served

as evidence of notice to the Shaws that there was a lead hazard on the premises.

See id. at ¶ 20 (holding that when combined with other evidence, notice that paint

is chipping and peeling is “relevant” to the “question of whether the landlord

knew or should have known of the hazard of lead-based paint exposure on his

premises,” although it is not, by itself evidence of notice for the purpose of

liability), quoting Lowery v. Ondrus, 6th Dist. Lucas No. L-08-1100, 2009-Ohio-

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46, ¶ 24; accord Walker v. Barnett Mgt., Inc., 8th Dist. Cuyahoga No. 84188,

. Additionally, although the trial court construed the Shaws’

affidavits attesting that no prior tenants ever reported lead exposure as akin to the

“positive notice” in Patterson that “the rental unit had passed an inspection by

governmental body,” we find the two notices to differ significantly. (R. at 40, at

7.) The affidavits of Robert and Diane do not refer to a “positive notice” given to

them by any third party, but rather to a lack of a “negative” notice. Unlike the

evidence of the inspection reports in Patterson, the affidavits here did not indicate

that anyone had looked for lead-based paint hazards or that any of the prior tenants

had ever been tested for lead. The Shaws attested that the property had never been

professionally inspected. Therefore, the affidavits that no one had ever asked

about or reported lead concerns, are not tantamount to the affirmation that the

house passed a lead inspection performed by a governmental agency. For all these

reasons, we conclude that reliance on Patterson is misplaced.

{¶31} The second case on which the trial court relied comes from the

Twelfth District Court of Appeals and concerns an injury caused to a tenant by a

tree growing on the rented property. See Johnston v. Filson, 12th Dist. Clinton

No. CA2014-04-007,

. The tree “was approximately 40-50

years old and it had a “ ‘v-crotch’ ” split, which was later determined to contain

decay; but at the time of the incident “the tree was alive and had green needles on

it.” Id. at ¶ 3. The testimony of the landlord indicated that he visited the property

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and inspected it visually, that “the tree looked ‘okay’ before it fell,” and that there

were no prior indications that the tree required attention. Id. at ¶ 15-16. The

plaintiffs-tenants also testified that they had had no concerns or worries about the

tree at issue prior to the accident. Id. at ¶ 18, 20. Even though they had noticed an

area of discoloration on the tree, they believed that the spot was sap and they never

reported it or complained about it to the landlord. Id. at ¶ 19, 20. One of the

tenants would lounge under the tree in a hammock despite seeing the dark spot,

and she never observed anything indicating that the tree was in decay or dying. Id.

at ¶ 20. Although the plaintiffs complained to the landlord about other conditions

of the property, they never reported or complained about the condition of this tree.

Id. at ¶ 18, 21. A neighbor to the rental property testified that he had had no

concerns about the tree prior to the accident and he had not noticed any evidence

of rot on the tree before it fell. Id. at ¶ 22. An expert arborist testified about the

dark spot that was later discovered to be rot and indicated that “it would have been

‘pretty difficult’ to see the spot because it was ‘way up in the air.’ ” Id. ¶ 23-24.

Although the expert also testified that all trees with the “v-crotch” split would

eventually fall, there were no “signs that it was about to fall or break during a

strong wind storm and strike one of the tenants.” Id. at ¶ 27.

{¶32} The court in Filson concluded that based on the testimony of all

witnesses, none of the usual indicia of the tree damage or tree hazard were present,

because “the tree was alive before it fell, and * * * it had living branches, healthy

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bark, and green needles. The tree did not contain noticeable holes, as if termite

damage had occurred. Nor did the tree show any signs of decay or disease other

than a small colored patch [the plaintiffs] thought was sap.” Id. at ¶ 13, 25.

Additionally, both plaintiffs testified that “there was never any cause for concern

that the tree would fall in their backyard.” Id. at ¶ 26. Accordingly, the court

concluded that summary judgment was proper because “the testimony [did not]

establish that the [defendants] knew or should have known that the tree posed a

possible danger.” Id. at ¶ 25.

{¶33} In the instant case, unlike in Filson, the usual indicia of hazard, in the

form of the peeling and chipping paint, were present. Unlike the tree that looked

“alive” and was never reported to the landlords, the condition of the paint did not

falsely indicate that it was safe, and its peeling and chipping condition was

reported to the Shaws. Additionally, in Filson, there was no evidence of any

disclosures that could put the landlord on notice that a fifty-year-old tree with a

dark spot on it could contain rot or could create a hazard. Accordingly, this case is

distinguishable from Filson.

{¶34} Based on the foregoing, we find a genuine issue of material fact as to

whether the Shaws had actual or constructive notice of lead being present on the

rental property. Therefore, we hold that the trial court erred in granting summary

judgment in this case relying on the lack of notice that lead-based paint was

present on the premises.

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Violation of 42 U.S.C. 4852d

{¶35} The second issue on appeal concerns the Residential Lead-Based

Paint Hazard Reduction Act of 1992 (“RLPHRA”), codified in

-

4856. This federal statute requires that

before the purchaser or lessee is obligated under any contract to purchase or lease the housing, the seller or lessor shall--

(A) provide the purchaser or lessee with a lead hazard information pamphlet, as prescribed by the Administrator of the Environmental Protection Agency under section 406 of the Toxic Substances Control Act [

];

(B) disclose to the purchaser or lessee the presence of any known lead-based paint, or any known lead-based paint hazards, in such housing and provide to the purchaser or lessee any lead hazard evaluation report available to the seller or lessor; and

(C) permit the purchaser a 10-day period (unless the parties mutually agree upon a different period of time) to conduct a risk assessment or inspection for the presence of lead-based paint hazards.

42 U.S.C. 4852d(a)(1). The statute further provides that

Any person who knowingly violates the provisions of this section shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual.

42 U.S.C.A. 4852d(b)(3). It is undisputed that the Shaws did not provide

Plaintiffs with the “lead hazard information pamphlet” or make disclosures about

any known lead-based paint hazards, as required by the statute.

{¶36} Addressing the allegations with respect to RLPHRA, the trial court

reasoned that under the statute, “[r]esidents of property, who are not lessees of the

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property, are not included” within a group of people who may bring suit over

failure to provide the lead information pamphlet.2 (R. at 40, at 4.) Therefore, the

trial court concluded that the minor children had no standing to bring a suit for

violation of 42 U.S.C. 4852d. (Id. at 5.) Furthermore, because Stacy “appear[ed]

to claim no injury other than that which may be derived from lead being

discovered in her children’s systems,” the trial court found Stacy’s claims under

RLPHRA to be without merit. (Id. at 4; see also id. at 9.) The trial court stated

that it granted summary judgment “for any claim in the Complaint brought under a

violation of Revised Code Section 426 [sic] U.S.C. Section 4852d by the minor

children.” (Id. at 5.) Plaintiffs only appeal the grant of summary judgment for

violation of 42 U.S.C. 4852d as it relates to the negligence per se claim, which

was asserted in count two of the complaint. (See App’t Br. at 5, 26.) They do not

raise the issue of whether the trial court correctly decided that the minor children

lacked standing to sue in count six and we do not address it here.3

{¶37} We also note that the trial court did not address the question, raised

by the Shaws on appeal, whether 42 U.S.C. 4852d could give a basis for a

negligence per se claim. Instead, the trial court summarily dismissed the claim

finding that Stacy could not maintain a cause of action because she did not

“appear” to claim any injury to herself, and her claims for the children’s injuries

2 We note that on July 16, 2015, a bill was introduced to amend RLPHRA “to make violators of such section liable to residents and invitees of target housing for such violations, and for other purposes.” 2015 CONG US HR 3085, available at https://www.congress.gov/bill/114th-congress/house-bill/3085. 3 But see note 2 above.

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failed because the children had no standing. In its reasoning, the trial court relied

on a case from the Sixth Circuit Court of Appeals, Roberts v. Hamer,

(6th Cir. 2011). In Roberts, a mother brought an action “solely as the next

friend of her two minor children.”

. Although the mother attempted to

amend the complaint to assert a claim in her own capacity, the trial court rejected

the amendment due to the expiration of the statute of limitations.

. The

issue before the federal court of appeals was whether the children were entitled to

seek redress for their injuries that were allegedly caused by the violations of

RLPHRA, despite their status as neither purchasers nor lessees.

. The

court held that children could not “sue a lessor for violations of the RLPHRA’s

disclosure requirements,” because the statute limited availability of the cause of

action to the purchasers or lessees.

. Notably, the court in

Roberts made no determination as to whether the mother would have been able to

recover for the violation had she alleged the claims in her own name. Therefore,

Roberts does not resolve all issues in the instant case.

{¶38} Here, the trial court determined that Stacy “appears to claim no

injury other than that which may be derived from lead being discovered in her

children’s systems.” (R. at 40, at 4.) The record confirms this finding as far as

lack of physical injuries to Stacy. (See, e.g., S. Webster Dep. at 123, 147-148.)

Yet, the statute does not limit recovery to physical injuries to the lessee that stem

from lead poisoning. Instead, it provides for compensation for “damages

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incurred” by the lessee that result from the violation. 42 U.S.C. 4852d(b)(3); see

Roberts at 582 (recognizing that “RLPHRA authorizes private enforcement

through civil actions” and that the tenant may be able to recover “an amount equal

to 3 times the amount of damages incurred by such individual”), quoting 42

U.S.C. 4852d(b)(3); Kearney v. Elias, D. New Hampshire, No. 07-cv-149-JL,

, *5-6 (Aug. 11, 2008) (observing that “[n]either the statute nor

its implementing regulations contain any definition of the phrase ‘damages

incurred,’ ” but concluding that claimed injuries must have causal connection to

the alleged violations of 42 U.S.C. 4852d, and finding genuine issues of fact

material as to whether “the plaintiffs would have suffered some financial injury

traceable to the defendants’ own nondisclosure”); McCready v. Main St. Trust,

Inc., C.D. Illinois, No. 07-CV-2096,

, *3 (Aug. 5, 2008)

(recognizing that “[a] private plaintiff may recover compensatory damages under

the RLPHRA,” but denying the remedy because the plaintiffs did not uncover any

lead paint and incurred no costs “as a result of the alleged violation of the

statute”).

{¶39} The record discloses an issue of fact as to the damages incurred by

Stacy, other than her own physical injuries, and as to whether these damages were

incurred as a result of the alleged violation of the statue. (See, e.g., S. Webster

Dep. at 81-82 (testifying about a purchase of “a brand-new expensive sweeper”

and cleaning on a daily basis to contain the lead contamination);

at 146

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(testifying about paying out of pocket for “prescriptions here and there that’s not

covered”); Def. Ex. K, S. Webster Resp. to Interrog. at 4, 17, 29 (responding that

Stacy suffered loss of consortium, mental anguish, and emotional distress); but see

id. at 6 (indicating lack of any non-medical expenses stemming from “the incident

described in the Complaint”)). Accordingly, the trial court’s grant of summary

judgment to the Shaws based on a finding that Stacy could not sustain the claim

due to lack of injuries independent of her children’s claims must be reversed.4

{¶40} For all of the forgoing reasons we sustain the assignment of error.

Conclusion

{¶41} Having reviewed the arguments, the briefs, and the record in this

case, we find error prejudicial to Appellants in the particulars assigned and argued.

The judgment of the Common Pleas Court of Wyandot County, Ohio is therefore

reversed and the case is remanded to the trial Court for further proceedings

consistent with this opinion.

Judgment Reversed and Cause Remanded SHAW, P.J. and PRESTON, J., concur.

/hls

4 We emphasize that this opinion is limited to the issues addressed by the trial court and challenged on appeal. We do not reach the multitude of issues raised by the parties and not addressed by the trial court as they are not necessary to the determination of whether the trial court properly granted summary judgment to the Shaws.

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