Hinckley v. Krantz , 103 Ohio App. 3d 53 ( 1995 )

I respectfully dissent from the majority's conclusion that appellants satisfied the evidentiary burden required by Wing v.Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108,570 N.E.2d 1095. I would have thus overruled their assignments of error and affirmed the trial court's grant of summary judgment in favor of appellees.

A tenant who pursues a negligence action against his or her landlord must establish that the landlord's negligence proximately caused the sustained injuries. Shroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20, 25, 22 O.O.3d 152, 155, 427 N.E.2d 774, 777-778; see, also, Ouellette v.Myhal (Mar. 14, 1991), Cuyahoga App. No. 58192, unreported, 1991 WL 34727. In order to impose liability on a landlord, it must be demonstrated that the landlord received notice of a defective condition of the rental premises, and knew of the defect, or the tenant made reasonable, but unsuccessful, attempts to notify the landlord. Winston Properties v. Sanders (1989), 57 Ohio App.3d 28,565 N.E.2d 1280 (interpreting R.C. 5321.04).

In the within case, the injury suffered by Danielle was the first injury resulting from the glider's movement, and appellants offered no evidence that the glider was defective in its design or the playground was negligently designed or maintained by appellees. Appellants' offer of proof that the glider's placement was inherently dangerous based upon the "Handbook For Public Playground Safety" does not alter this conclusion. The introduction to the handbook specifically states that it contains guidelines which are not mandatory. The handbook does not profess legal requirements, and noncompliance with the requirements does not satisfy the requisite elements needed to prove negligence.

Additionally, appellants assert that the premises' maintenance man knew of the glider's potential danger and his expression of this concern to appellees creates a genuine issue of material fact with regard to appellees' knowledge. Appellants also rely on the 1991 memorandum to support their claim that appellees knew of the danger. However, the fact remains that Danielle was the first person injured by the glider. Any piece of playground equipment is potentially dangerous. Just because a child is injured thereon does not mean that the owner of the property and/or landlord is negligent in designing or maintaining a playground or a common area.

I accordingly dissent.