Davis v. Cuyahoga Metro. Hous. Auth. , 2012 Ohio 3077 ( 2012 )

[Cite as Davis v. Cuyahoga Metro. Hous. Auth., 2012-Ohio-3077.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97356
LAWANDA DAVIS, ET AL.
PLAINTIFFS-APPELLANTS
vs.
CUYAHOGA METROPOLITAN
HOUSING AUTHORITY
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-649853
BEFORE: S. Gallagher, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: July 5, 2012
ATTORNEYS FOR APPELLANTS
Sam A. Zingale
700 Rockefeller Building
614 Superior Avenue N.W.
Cleveland, OH 44113
Keith E. Belkin
20600 Chagrin Boulevard, #1111
Shaker Heights, Ohio 44122-5334
ATTORNEYS FOR APPELLEE
Timothy A. Marcovy
Michael S. Lewis
Aubrey B. Willacy
Willacy, LoPresti & Marcovy
330 Western Reserve Building
1468 West Ninth Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellants, Lawanda Davis and her young child R.D., appeal the trial court’s
decision granting summary judgment in favor of Cuyahoga Metropolitan Housing
Authority (“CMHA”) on appellants’ claims. For the following reasons, we affirm the
decision of the trial court.
{¶2} Appellants moved into a CMHA-managed apartment at the end of March
2006. Before that, CMHA repaired the non-operational furnace by replacing the draft
motor, gas valve, and thermostat. CMHA’s maintenance technician, William Taylor,
performed the repairs, but did not recall working on that particular furnace. CMHA
provided the maintenance records indicating Taylor performed the work. Taylor
testified that after completing the repairs, his normal practice was to cycle the furnace
through a progression to ensure the repairs were effective and proper. By all accounts,
the furnace was operational when the appellants moved into the apartment. The furnace
was located inside a closet of the home, although Lawanda did not know if the closet door
was locked.
{¶3} After moving into the apartment, Lawanda noticed a smell emanating from
the furnace every time she turned it on. She ran the furnace briefly and shut it off once
the smell was detected. Lawanda never requested to have the furnace serviced. An
unidentified CMHA maintenance employee was called to the apartment to fix some
blinds and the stove sometime between April and October 2006. Lawanda inquired
about the smell from the furnace and was told by the unidentified employee that the
problem was most likely dirt in the vents. She attempted to sweep the vents.
{¶4} On October 17, 2006, appellants returned home and started the furnace.
Lawanda let the furnace run despite the smell. After about an hour, R.D. began crying.
After a brief moment of Lawanda trying to diagnose him, R.D. passed out. Lawanda
removed him from the apartment, called for help, and emergency personnel responded.
An unidentified fireman told Lawanda that the carbon monoxide level in the apartment
was three times the normal level. According to Lawanda, R.D. underwent treatment for
carbon monoxide exposure.
{¶5} Lawanda’s and Taylor’s depositions were included with CMHA’s motion
for summary judgment. Taylor stated that the smell Lawanda encountered from the
vents could not be carbon monoxide. Carbon monoxide, a natural byproduct of burning
natural gas for heat, is odorless. Taylor claimed that the most likely cause of the smell
was dirt or dust in the air ducts. Taylor could not remember whether the furnace needed
repairs after the October 17 incident, but stated that the most common causes of carbon
monoxide exhausting into the home from a furnace is a misaligned flue pipe or a
significant blockage in the chimney, like a dead animal. Nothing affirmatively indicates
whether the furnace was serviced after October 17, 2006. Taylor was not responsible for
maintaining the chimney, and appellants’ furnace shared a common chimney with several
other apartments.
{¶6} In their complaint, appellants advanced several causes of action, including a
claim for negligence and negligence per se pursuant to R.C. 5321.04(A)(4). Both claims
were based on the failure of CMHA to properly maintain or repair the furnace, which was
the alleged source of the elevated carbon monoxide levels. Appellants’ complaint also
included a claim based on CMHA’s failure to provide a carbon monoxide detector.
{¶7} The trial court granted CMHA’s motion for summary judgment upon all
claims. CMHA, in pertinent part, argued that appellants failed to produce expert
testimony establishing that the furnace was defective or was the cause of the elevated
carbon monoxide levels. Appellants timely appealed the trial court’s decision, raising
three assignments of error, all of which attack the trial court’s summary judgment
decision regarding appellants’ negligence and negligence per se claims. For the
following reasons, appellants’ assignments of error are without merit.
{¶8} Appellate review of summary judgment is de novo, governed by the
standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,
833 N.E.2d 712, ¶ 8. We afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th
Dist.). Under Civ.R. 56(C), summary judgment is proper when the moving party
establishes that
(1) no genuine issue of any material fact remains, (2) the moving party is
entitled to judgment as a matter of law, and (3) it appears from the evidence
that reasonable minds can come to but one conclusion, and construing the
evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is
made.
State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826
N.E.2d 832, ¶ 9, citing Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d
267 (1977). While a party requesting summary judgment bears the initial burden to
show the basis of the motion, once the moving party satisfies this burden of production,
the nonmoving party must offer specific facts, using the evidence allowed under Civ.R.
56(C), demonstrating a genuine issue for trial. Dresher v. Burt, 75 Ohio St.3d 280,
293-294, 662 N.E.2d 264 (1996).
{¶9} In order to defeat a properly supported motion for summary judgment on a
negligence claim, the nonmoving party must establish that a genuine issue of material fact
remains as to whether the defendant owed a duty of care, breached that duty, and
proximately caused the plaintiff’s injury. Texler v. D.O. Summers Cleaners & Shirt
Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998). In the alternative,
negligence per se is “a violation of a specific requirement of law or ordinance, the only
fact for determination by the jury being the commission or omission of the specific act
inhibited or required.” Sabitov v. Graines, 177 Ohio App.3d 451, 2008-Ohio-3795, 894
N.E.2d 1310 (8th Dist.), citing Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565,
697 N.E.2d 198 (1998). In the current case, CMHA’s alleged omission was the failure
to maintain the furnace in violation of R.C. 5321.04(A)(4). Thus, under either the
negligence or negligence per se claims, appellants needed to demonstrate the furnace was
the cause of the carbon monoxide emissions based on CMHA’s failure to maintain the
furnace or CMHA’s breaching its duty by not discovering and remedying a defect with
the furnace system. It is undisputed that CMHA was responsible for maintaining the
furnace.
{¶10} CMHA argued that appellants failed to proffer expert testimony establishing
the furnace caused the carbon monoxide emissions or was in such a condition to cause the
elevated carbon monoxide levels in appellants’ home. The only expert deposed was
Taylor, CMHA’s maintenance technician. Taylor stated that the only way a furnace can
cause elevated carbon monoxide levels is through a misaligned flue pipe or chimney
blockage, but he never testified that either condition existed with appellants’ furnace.
CMHA satisfied its burden of production. CMHA demonstrated the absence of
evidence demonstrating the furnace was in a condition of disrepair or even the cause of
the elevated carbon monoxide levels.
{¶11} Appellants claimed, in response, that the furnace was the “only
instrumentality capable of producing and emitting the carbon monoxide” appellants
encountered. Appellants did not support that assertion with any evidence. Because
CMHA satisfied its burden, demonstrating no genuine issue of material fact, appellants
must offer specific facts, using the evidence allowed under Civ.R. 56(C), demonstrating a
genuine issue for trial. Dresher, 75 Ohio St.3d 280, 293-294, 662 N.E.2d 264.
{¶12} Appellants failed to demonstrate that CMHA breached its duty or failed to
maintain the furnace. Lawanda’s testimony, setting aside the hearsay issues, merely
demonstrated that elevated levels of carbon monoxide were detected after R.D. passed
out. No evidence established that the furnace was the source. In addition, Lawanda’s
testimony about the smell from the vents did not demonstrate a defective condition.
Taylor, who appellants qualified as an expert, stated that carbon monoxide is odorless and
the smell from the furnace was unrelated to the elevated carbon monoxide levels.
Nothing in the record contradicts this testimony. Thus, appellants never demonstrated
that the furnace caused the elevated carbon monoxide levels because of CMHA’s failure
to maintain the furnace.
{¶13} Appellants’ reliance on the sequence of events — Lawanda turning on the
furnace an hour prior to R.D. exhibiting symptoms — to establish a breach of duty or
omission on CMHA’s part is unavailing. However unfortunate the outcome, appellants
cannot rely on the inference that CMHA breached its duty or failed to act as to cause, or
allow, the furnace to exhaust carbon monoxide into the home based on the sequence of
events leading to R.D.’s exposure. In order to reach the conclusion that CMHA
breached its duty or failed to otherwise act, the inference, that the furnace caused the
elevated levels of carbon monoxide based on the timing of R.D.’s exposure, must support
another inference, that the cause of the furnace malfunction was CMHA’s failure to act.
This court has consistently held:
“For the purpose of supporting a proposition, it is not permissible to draw
an inference from a deduction which is itself purely speculative and
unsupported by an established fact. Where an inference not supported by or
drawn from a proven or known fact is indulged, and is then used as a basis
for another inference, neither inference has probative value. Such a
process may be described as drawing an inference from an inference, and is
not allowable. At the beginning of every line of legitimate inferences
there must be a fact, known or proved.”
Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 329, 332, 130 N.E.2d 820 (1955),
quoting Indian Creek Coal & Mining Co. v. Calvert, 68 Ind.App. 474, 119 N.E. 519, 120
N.E. 709 (2d Div.1918).
{¶14} In the alternative, appellants argue that the doctrine of res ipsa loquitur
supplants their need to establish liability upon direct evidence. “Res ipsa loquitur is an
evidentiary rule that permits, but does not require, a jury to draw an inference of
negligence from circumstantial evidence.” Estate of Hall v. Akron Gen. Med. Ctr., 125
Ohio St.3d 300, 2010-Ohio-1041, 927 N.E.2d 1112, ¶ 16, citing Fink v. New York Cent.
RR. Co., 144 Ohio St. 1, 56 N.E.2d 456 (1944), paragraph two of the syllabus. The
doctrine of res ipsa loquitur applies if
(1) the instrumentality causing the injury was, at the time of the injury, or at
the time of the creation of the condition causing the injury, under the
exclusive management and control of the defendant; and (2) the injury
occurred under such circumstances that in the ordinary course of events it
would not have occurred if ordinary care had been observed.
(Emphasis added.) Estate of Hall at ¶ 27, citing Hake v. George Wiedemann Brewing
Co., 23 Ohio St.2d 65, 66-67, 262 N.E.2d 703 (1970).
{¶15} Appellants rely on the fact that CMHA is exclusively responsible for
maintaining the furnace to satisfy the first prong of the res ipsa loquitur analysis.
Appellants’ reliance is misplaced. Being responsible for the maintenance of the furnace
alone does not establish exclusive control over the instrumentality causing the injury.
See Hickey v. Otis Elevator Co., 163 Ohio App.3d 765, 2005-Ohio-4279, 840 N.E.2d 637,
¶ 27 (10th Dist.). The furnace was located inside the appellants’ home, and there is no
evidence that CMHA limited appellants’ access to the furnace. The undisputed evidence
demonstrated that CMHA did not retain exclusive control over the furnace, only exclusive
management. Under these circumstances, the doctrine of res ipsa loquitur is
inapplicable.
{¶16} Construing the facts in a light most favorable to appellants, we find that no
genuine issue of material fact existed. There was no evidence demonstrating that
CMHA breached its duty or failed to maintain the furnace, and the res ipsa loquitur
doctrine cannot be applied to this situation where the appellants have not established that
CMHA had exclusive control over the furnace. Upon a thorough review of the record,
CMHA was entitled to judgment as a matter of law, and accordingly, the trial court did
not err in granting summary judgment in favor of CMHA. Appellants’ three
assignments of error are overruled.
{¶17} The decision of the trial court is affirmed.
It is ordered that appellee recover from appellants 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.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
KATHLEEN A. KEOUGH, J., CONCUR