[Cite as Carter v. Forestview Terrace, L.L.C.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103165

EVELYN CARTER

PLAINTIFF-APPELLANT

vs.

FORESTVIEW TERRACE L.L.C., ET AL. DEFENDANTS-APPELLEES

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-828690

BEFORE: McCormack, J., Keough, P.J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: August 4, 2016 ATTORNEYS FOR APPELLANT

Leonard Ehrenreich Arthur E. Dombek Ehrenreich & Associates 1130 Leader Building 526 Superior Ave. Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

Adam E. Carr The Carr Law Office, L.L.C. 5824 Akron-Cleveland Rd., Suite A Hudson, OH 44236

Eric K. Grinnell Smith Marshall, L.L.P. 5824 Akron-Cleveland Road, Suite A Hudson, OH 44236 TIM McCORMACK, J.:

{¶1} Plaintiff-appellant Evelyn Carter appeals from a judgment of the Cuyahoga

County Court of Common Pleas that granted summary judgment in favor of Carter’s

landlord, defendant-appellee Forestview Terrace, L.L.C. (“Forestview”). Carter was

injured when she fell down the stairwell of a common area that lead to her basement

apartment. For the following reasons, we reverse and remand.

Procedural History and Substantive Facts

{¶2} On June 25, 2012, Evelyn Carter was a resident of the apartment complex

owned and operated by Forestview.1 Damage had been caused by a fire that occurred at

this apartment complex less than one week prior. Forestview hired Brennan Electric to

perform electrical repairs at the complex. According to Forestview, it was necessary for

Brennan Electric to shut down all electrical power to the apartment complex in order to

perform the necessary repairs. On June 25, Brennan Electric did, indeed, shut off the

power to the building in which Carter resided.

{¶3} On this same day, Carter had been visiting with her son, who resided in a

different apartment building in the same complex. Carter testified that it was a

“beautiful, sunshiny day.” When she left her building to visit her son in his building, the

hall in her building was well lit and “everything was as it always had been.” She stated

The parties have stipulated that Forestview Terrace, L.L.C. was in receivership at the time 1

of the alleged incident, and Foresite Realty Partners was the receiver. For purposes of this appeal, we refer to the landlord as Forestview. that while she visited her son in his building, the electricity was operating normally, as

well.

{¶4} After visiting with her son, she made her way outside and returned to her

apartment building. Upon returning to her building, she opened the door at the top of

the stairwell from the outside that leads to her basement apartment. Carter testified that

when she opened the door, the sun was shining very brightly, “illuminating the stairwell.”

She noticed, however, that the stairwell was not “quite as bright as it should have been,”

and she thought that the light “is going out down there,” explaining that “lights go out,

they get dim.” She made a mental note to advise the management company that the light

“is getting ready to come out.”

{¶5} Realizing the stairwell was not as bright as it was when she initially left her

apartment, Carter proceeded down the stairs more cautiously. She stated that she looked

down at the stairs and was holding onto the handrails. She entered the stairwell and began

to descend the stairs when the door automatically closed behind her, leaving her in total

darkness. At this point, Carter lost her footing and fell down the stairs.

{¶6} She testified as follows, relating to her fall:

I think I was on about the third stair before the door started closing and the light started getting dimmer and dimmer, okay? And by the time I got to the point where the door closed completely, I was falling in the pitch black darkness. I’m like, oh, my God. The light is out. It’s not going out, it’s out. By that time, I’m hitting everything on my path on the way down * * *.

*** By the time I realized * * * anything was really, really wrong, I was falling in the pitch black darkness. The door shutter had closed the door real fast and I was falling in the pitch black darkness. I was already descending the stairs. It wasn’t like I stepped down the first stairs * * *.

Carter further explained that “there [was] no way for me to know if there [was] anything

wrong inside my stairwell.” She stated that once the door had closed automatically,

there was no sunlight entering the stairwell and it was pitch black, and “once the stairwell

turned dark, I was tumbling down the stairwell in the pitch black darkness.” She

testified that she was not aware it was dark until the door “closed down the sunlight and

shut the door.”

{¶7} As a result of her fall, Carter suffered injuries to her wrists, back, neck,

shoulders, ankles, and knees. Further, she stated that her headaches increased.

{¶8} John T. Skerritt, Forestview’s maintenance employee, was working the day

Carter fell. He testified that he was aware that Brennan Electric would be performing

repairs and that such repairs necessitated turning off the electricity during the day. He

also testified that all residents were warned that Brennan Electric would be turning off the

electricity and all power that day. He stated that he “believe[d]” he posted signs

indicating the same.

{¶9} Carter, however, stated that she was not aware of the electricity being shut

off that day in her apartment building. Further, she did not see anyone working in her

hallway, and she was not aware that anyone was working on the electricity that day.

Carter testified that, typically, if there was an issue with the building, management would

put a note on the door advising the tenants of the issue; however, she stated that there were no notices on the door regarding the electricity being turned off. One of the

electricians on site, William Yunker, testified that he did not see any signs warning

residents of the power shut-off.

{¶10} Carter filed a complaint against Forestview and Brennan Electric for

damages. The parties conducted the depositions of Carter and various employees or

representatives of Brennan Electric. Thereafter, Carter settled her claims with Brennan

Electric. On February 20, 2015, Forestview moved for summary judgment, which was

granted by the trial court.

{¶11} Carter now appeals from the judgment of the trial court and assigns one

error for our review:

The trial court erred in sustaining defendant-appellee Forestview’s motion for summary judgment, thereby violating Civ.R. 56(C), in that there remain genuine issues of material fact.

Summary Judgment

{¶12} 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). Once a moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the moving party’s pleadings; rather, it has a

reciprocal burden of setting forth specific facts demonstrating that there is a genuine triable issue. State ex rel. Zimmerman v. Tompkins,

,

(1996).

{¶13} We review the trial court’s judgment de novo. Telecom Acquisition Corp.

I v. Lucic Ents., 8th Dist. Cuyahoga No. 102119,

, citing Grafton v.

Ohio Edison Co.,

,

(1996).

Law and Analysis

{¶14} Carter claims that Forestview was negligent in failing to maintain the

stairwell in a safe condition and in failing to warn her of the dangerous condition of the

stairwell, and as a result, she sustained serious injuries. Forestview argues that the

condition of the stairwell was open and obvious, and therefore, it had no duty to warn

Carter that the light was out. Regardless, Forestview contends that it did, in fact,

provide notice to all tenants that the power would be shut off the day in question.

Finally, Forestview claims that Carter’s injuries resulted from her own actions when she

proceeded into the dark stairwell.

{¶15} In order to prevail in a common law negligence action, a party must show

(1) a duty owed, (2) a breach of that duty, and (3) an injury proximately resulting from

that breach. Mann v. Northgate Investors, L.L.C.,

,

, ¶ 8

(10th Dist.) (“Mann I”), citing Robinson v. Bates,

,

,

. At common law, a landlord is 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. Mullins v. Grosz, 10th Dist. Franklin No. 10AP-23,

, ¶ 23, citing Shroades v. Rental Homes, Inc.,

,

(1981).

{¶16} The landlord’s duty also includes warning a tenant of latent or concealed

defects and defective premises under the landlord’s control. Person-Thomas v.

Quilliams-Noble Apts., L.L.C.,

,

, ¶ 11 (8th Dist.), citing

Shump v. First Continental-Robinwood Assocs.,

,

(1994). And where the matter involves a question of the existence of a hazardous

condition or defect, actual or constructive notice of the hazard or defect is a prerequisite

to a landlord’s duty. Waugh v. Lynch, 8th Dist. Cuyahoga No. 100432,

; Heckert v. Patrick,

,

(1984).

{¶17} The duty of reasonable care to maintain the premises, however, is obviated

by the “open and obvious” doctrine. Mann I at ¶ 9. This doctrine espouses the rule

that where a danger is “open and obvious,” a landowner owes no duty of care to

individuals lawfully on the premises. Armstrong v. Best Buy Co., Inc.,

,

,

, citing Sidle v. Humphrey,

,

(1968). The rationale for this doctrine is that the open and obvious

nature of the hazard itself serves as a warning and one may undertake appropriate

measures to protect himself or herself against it. Mann I, citing Simmers v. Bentley

Constr. Co.,

,

(1992). “The fact that a plaintiff

was unreasonable in choosing to encounter the danger is not what relieves the property

owner of liability. Rather, it is the fact that the condition itself is so obvious that it absolves the property owner from taking any further action to protect the plaintiff.”

Armstrong at ¶ 13.

{¶18} Attendant circumstances, however, can create an exception to the open and

obvious doctrine and render summary judgment inappropriate. Johnson v. Regal

Cinemas, Inc., 8th Dist. Cuyahoga No. 93775,

, ¶ 23. An “attendant

circumstance” is “any significant distraction that would divert the attention of a

reasonable person in the same situation and thereby reduce the amount of care an ordinary

person would exercise to avoid an otherwise open and obvious hazard.” Haller v.

Meijer, Inc., 10th Dist. Franklin No. 11AP-290,

, ¶ 10; Daher v. Bally’s

Total Fitness, 11th Dist. Lake No. 2014-L-061,

, ¶ 27 (finding that the

“attendant circumstances” of a slip and fall may create a material issue of fact as to

whether the danger was open and obvious). Such attendant circumstances include “‘all

facts relating to the event, such as time, place, surroundings or background and the

conditions normally existing that would unreasonably increase the normal risk of a

harmful result of the event.’” Johnson, quoting Klauss v. Marc Glassman, Inc., 8th Dist.

Cuyahoga No. 84799,

.

{¶19} Where darkness is a factor in a trip-and-fall situation, the darkness itself

may be the hazardous condition that serves as the warning of danger, and the person who

disregards the dark condition does so at his or her own risk. Mann I at ¶ 23, citing

Mowery v. Shoaf,

,

,

(7th Dist.);

Schneider v. Associated Estates Realty, 8th Dist. Cuyahoga No. 73981,

, 8 (Mar. 4, 1999). The “step-in-the dark” rule relates to the proximate cause

element of negligence and holds that “one who, from a lighted area, intentionally steps

into total darkness, without knowledge, information, or investigation as to what the

darkness might conceal, is guilty of contributory negligence as a matter of law.” Posin

v. A.B.C. Motor Court Hotel, Inc.,

,

(1976);

(stating the rule mandates liability upon an individual who intentionally

steps from a lighted area to total darkness, without investigating the possible dangers

concealed by the darkness); Hissong v. Miller,

,

,

(2d Dist.) (noting that unlike the “open and obvious” doctrine that

relates to the landlord’s duty, the step-in-the-dark rule relates to the cause of the

plaintiff’s injury).

{¶20} This rule applies only in cases of “total darkness” and not where testimony

indicates some degree of illumination. Rothfuss v. Hamilton Masonic Temple Co.,

,

(1973). Further, the rule applies to cases

involving natural darkness in an outside setting as well as “artificial darkness” that occurs

inside a building. See Mann I at ¶ 24.

{¶21} The step-in-the-dark rule generally infers that the injured party lacked

ordinary care in proceeding in the dark. However, the rule recognizes that sometimes

“‘a person’s step into the darkness is perfectly reasonable.’” Tomasko v. Sohnly, 5th

Dist. Delaware No.15-CAE-10-0078,

, quoting Hissong at ¶ 39.

“It cannot be said that a person is guilty of negligence as a matter of law under all circumstances when such person enters a dark place where his sense of sight alone does

not enable him to see what is before him.” Chardon Lakes Inn Co. v. MacBride,

,

(11th Dist. 1937). For example, a person can be lulled

into a false sense of safety under certain circumstances, such as the existence of some

lighting or adherence to the instructions of another. See Rothfuss (light conditions in the

parking lot); MacBride (following someone’s instructions).

{¶22} Where there is conflicting evidence or a question regarding the credibility of

witnesses, there can be no inference of lack of ordinary care:

If conflicting evidence exists as to the intentional nature of the step into the dark, the lighting conditions and degree of darkness, the nature and appearance of the premises, or other circumstances exist tending to disprove a voluntary, deliberate step into unknown darkness, then clearly an inference of contributory negligence does not arise. Evidence of this nature presents a factual question for determination by the jury.

Posin,

,

, citing Rothfuss; Chardon Lakes Inn Co.

Therefore, the question becomes whether the injured person unreasonably stepped into

the darkness, or whether the injured person acted negligently in her encounter with the

darkness, and whether, for summary judgment purposes, reasonable minds can answer

this question differently.

{¶23} The Landlord-Tenant Act, R.C. Chapter 5321, enacted in 1974, codifies

Ohio’s law regarding residential premises and governs the rights and duties of tenants and

landlords. Mann v. Northgate Investors, L.L.C.,

,

,

(“Mann II”). This statute was created for the purpose of providing

tenants with greater rights: “In light of the public policy and drastic changes made by the statutory scheme of R. C. Chapter 5321, we hold that 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. We conclude that the General Assembly intended both to provide tenants with greater rights and to negate the previous tort immunities for landlords.”

Mann II, quoting Shroades,

, 427 N.E.2d. As a result of the

enactment, a landlord can now be liable for injuries resulting from the landlord’s failure

to meet the obligations imposed by R.C. 5321.04. Mann II at ¶ 11.

{¶24} Specifically, R.C. 5321.04(A) outlines the landlord’s duty as follows:

(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;

(3) Keep all common areas of the premises in a safe and sanitary condition;

(4) Maintain in good and safe working order and condition all electrical,

plumbing, sanitary, heating, ventilating, and air conditioning fixtures and

appliances, and elevators, supplied or required to be supplied by the

landlord * * *.

{¶25} A landlord’s violation of the duties imposed by R.C. 5321.04 constitutes

negligence per se. Person-Thomas,

,

, at ¶ 14, citing

Robinson,

,

,

; Sikora v.

Wenzel,

,

,

; see also Mann II. A finding of negligence per se, however, does not result in strict liability, as application of

negligence per se merely establishes that the defendant breached a duty owed to plaintiff.

Mann I at ¶ 10. The plaintiff must further establish proximate cause for the injuries

sustained. Mann II at ¶ 12, citing

.

{¶26} Additionally, the plaintiff must demonstrate 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.’” Mann II at ¶ 12, quoting Shroades,

, 427 N.E.2d. A

landlord will be excused from liability under this statute where he or she “neither knew

nor should have known of the factual circumstances that caused the violation.” Sikora at

the syllabus.

{¶27} While the “open and obvious” doctrine eliminates the landlord’s common

law duty of ordinary care to maintain the premises in a reasonably safe condition and to

warn of latent defects, this doctrine does not relieve the landlord’s duty under the statute.

Mann I at ¶ 11, citing Robinson at ¶ 25. “If a landlord breaches a duty under R.C.

5321.04, the ‘open and obvious’ doctrine will not protect the landlord from liability.”

Id. However, where no statutory breach occurred, the “open and obvious” doctrine

remains a bar to a common law negligence claim. Mann I, citing Ryder v. McGlone’s

Rentals, 3d Dist. Crawford No. 3-09-02,

.

{¶28} Here, under common law and under the statute, as Carter’s landlord,

Forestview had a duty to maintain the premises in a reasonably safe condition. To the extent that the stairwell’s unlighted condition was hazardous or concealed, Forestview

had a duty to warn its tenants of the hazard. There is no dispute that Forestview was

aware that Brennan Electric would be performing repairs and that such repairs

necessitated turning off the electricity on the day that Carter fell. The question becomes

whether Forestview, in fact, informed the tenants that the power would be turned off, and

if they did not so inform them, whether they thus created a hazardous condition.

Although Forestview’s maintenance employee testified that he posted signs warning

tenants of the repairs, Carter testified that she was not aware that the power would be off

that day, nor did she see any signs posting that warning. Additionally, an electrician

with Brennan Electric, who was at the site on the day in question, also testified that he

saw no warning signs posted on the apartment building that day. Thus, there is a

genuine question of material fact regarding whether Forestview did, in fact, warn Carter

that the power would be turned off on June 25.

{¶29} Forestview asserts that regardless of the notice Carter may or may not have

received through posted signs, the dark condition of the stairwell was open and obvious

and the darkness in the hallway served as her notice of the danger. In support,

Forestview claims that Carter observed that the light in the stairwell had gone out and she

proceeded down the dark stairs regardless of the inherent danger presented.

{¶30} Carter’s testimony, however, contrasts with and does not support

Forestview’s position. Carter testified that it was a “bright, sunshiny day” on June 25,

and when she opened the door to her apartment building, the bright sun illuminated the stairwell. She noticed that the stairwell was “not quite as bright as it should have been”

and she thought that the light “was going out” or “getting ready to come out.” She

further testified that there was no indication of darkness until the door closed and she was

on the third step. At that point, she had already begun to fall. Carter testified that it

was not until she began to fall, when she realized that “the light is out, not going out.”

The testimony therefore demonstrates a genuine issue of material fact as to whether the

condition of the stairwell itself was so obvious that it absolved Forestview from taking

any further action to protect Carter, i.e. warning Carter of its existence. Armstrong,

,

,

.

{¶31} Likewise, there is a genuine issue of material fact as to whether Carter’s

own step in the dark was the proximate cause of her injuries. As stated previously, the

step-in-the-dark rule provides that “one who, from a lighted area, intentionally steps into

total darkness, without knowledge, information, or investigation as to what the darkness

might conceal,” is negligent as a matter of law. Posin,

,

.

{¶32} Here, Carter testified that when she opened the door and began to descend

the stairs, the stairwell was not dark. Rather, it was illuminated by the sunshine and the

dimming light. Carter explained that because she noticed the stairwell light was not as

bright as usual, she proceeded cautiously down the stairs to her apartment, looking down

at the steps and holding onto the handrails. However, as Carter testified, she was on the

third step when the door suddenly closed, and “I was falling in the pitch black darkness.” As Carter stated, there was no indication of darkness until she had already reached the

third step and the door automatically closed. And at that point, she was falling down the

stairs. Arguably, her last step was the fall, as the darkness surrounded her

instantaneously.

{¶33} In construing the evidence in Carter’s favor, we find that reasonable minds

can conclude that it was not a voluntary, deliberate step into unknown darkness that

caused her fall. Rather, the sudden darkness that had surprised Carter mid-step caused

her to fall. See Mann I.

{¶34} In light of the foregoing, we find there is a genuine issue of material fact

regarding whether the darkened stairwell was an open and obvious condition that

obviated the landlord’s duty to warn its tenant, and if not, whether the landlord provided

sufficient notice of the dangerous condition. Further, we find there is a genuine issue of

material fact as to whether Carter’s own actions caused her injuries. Summary

judgment was therefore improper.

{¶35} Carter’s assignment of error is sustained.

{¶36} Judgment reversed. This cause is remanded to the lower court for further

proceedings consistent with this opinion.

It is ordered that appellant recover of said appellee 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

KATHLEEN ANN KEOUGH, P.J., and EILEEN A. GALLAGHER, J., CONCUR