Bierl v. BGZ Assoc. II, L.L.C.

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-648

Case Date: 02/25/2013

Plaintiff: Bierl

Defendant: BGZ Assoc. II, L.L.C.

Preview:[Cite as Bierl v. BGZ Assoc. II, L.L.C., 2013-Ohio-648.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
SUSAN BIERL,
PLAINTIFF-APPELLANT,                                             CASE NO.   9-12-42
v.
BGZ ASSOCIATES II, LLC,                                          O P I N I O N
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Trial Court No. 10-CV-0527
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision:    February 25, 2013
APPEARANCES:
Patrick T. Murphy for Appellant
Timothy J. Ryan for Appellee

Case No. 9-12-42
ROGERS, J.
{¶1} Plaintiff-Appellant, Susan Bierl, appeals the  order of  the Court of
Common  Pleas  of  Marion  County  granting  summary  judgment  in  favor  of
Defendant-Appellee, BGZ Associates II, LLC (“BGZ”).   On appeal, Bierl argues
that the trial court erred by (1) finding that the open and obvious doctrine barred
her common law negligence claim; (2) determining that her injury did not occur in
a residential premises that is covered by R.C. 5321.04; and (3) finding that she
was not a third party beneficiary of the lease between Bierl’s daughter, Amber
Bierl (“Amber”), and BGZ.   For the reasons that follow, we affirm in part and
reverse in part the trial court’s judgment.
{¶2} On  June  25,  2010,  Bierl  filed  a  complaint  against  BGZ  seeking
recovery for the injuries she sustained in a trip and fall accident at an apartment
complex owned by BGZ.   Bierl sought recovery based on three theories.   First,
BGZ  was  alleged  to  have  violated  the  Landlord-Tenant  Act.    Second,  Bierl
claimed to be a third party beneficiary of the lease between BGZ and Amber and
that BGZ breached its contractual obligation to maintain the accident site in a safe
condition.   Third, Bierl asserted that BGZ was subject to common law premises
liability.
{¶3} Bierl attached Amber’s lease with BGZ to her complaint.   It included
the following definition of the premises leased:
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Case No. 9-12-42
PREMISES LEASED.   [BGZ], in consideration of the rent to be
paid, and covenants and agreements to be performed by  [Amber]
does herby lease the following described premises located at:  532
New  Park  Drive  Apartment  C                                                            (hereinafter  referred  to  as  the
Premises).     The  Premises  shall  include  the  following  personal
property  owned  by                                                                       [BGZ]:  Dishwasher,  disposal,  range  and
refrigerator carpet, mini-blinds, and smoke detectors (Docket No. 1,
Exhibit A, p. 1).
The lease went on to describe BGZ’s duties to Amber, including the duty to
“[k]eep all common areas of the Premises in a safe and sanitary condition[.]”             (Id.
at p. 4).   The lease also included a variety of provisions that refer to guests and
Amber’s duty to control her guests’ actions while they are on the property.
{¶4} During discovery, several witnesses were deposed regarding Bierl’s
trip and fall accident.   Bierl’s deposition provided the following relevant evidence.
Her trip and fall occurred on October 17, 2009 when she was at the complex as
Amber’s guest.    Bierl said that before the accident, she visited Amber at the
complex three or four times a week.
{¶5} The purpose of Bierl’s October 17, 2009 visit was to attend a party
thrown by Amber at the apartment complex’s clubhouse.   After the party finished,
Bierl assisted with the clean-up effort.   Bierl stated that in the course of cleaning,
Bierl carried one 30-to 40-pound garbage bag from the clubhouse to the nearest
dumpster on the complex’s property.   She also testified that she carried the bag in
front of her at waist level with both of her hands, which prevented her from seeing
her feet.
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Case No. 9-12-42
{¶6} The dumpster was surrounded on three sides by white wooden walls
that were of greater heights than the dumpster itself.   Bierl said that while she had
used other dumpsters at the apartment complex before the date of the accident, she
had never used the dumpster closest to the clubhouse.   Further, Bierl indicated that
as she approached the dumpster from the clubhouse, she traveled a sidewalk that
only allowed her to see the white wooden walls and not the open side.   After
passing the white wooden wall that concealed the dumpster, she  immediately
turned to the right so that she could throw the garbage bags into the dumpster.
Shortly after turning, her right foot got caught on a knee-high one inch by one-
quarter of an inch metal brace that ran diagonally from the ground to the side of
the nearest white wall.   Most of the brace was spray painted red but the top of it
was painted white. After getting her foot caught, Bierl fell and sustained several
injuries to her left leg.
{¶7} As to the trip and fall, Bierl testified as follows:
Q:   Was there an area that you could not see in front of you or was
the bag - were you carrying it low enough that you could see ahead
of you?
A:   I carried it low, yeah, so I could see where I was walking.
Q:   So the bag wasn’t effecting [sic] what you could see in front of
you?
A:   No, no.
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Case No. 9-12-42
Q:   All right.    So when you were turning that corner, was that
familiar ground to you?
A:   No.
Q:   When you turned the corner, what were you looking at? * * *
[J]ust after you left the blacktop and were turning, by this white post,
what is first thing you saw on the other side of that - of this sideway
that has the bracket * * *?
A:   The dumpster.
Q:   Were you looking for the place where you would be throwing
it?
A:   Yes.
Q:   As you’re turning the corner looking to see where the dumpster
is,  are  you  thinking  how  you  would  what,  take  the  top  off  or
whatever?
A:   Yes. (Id. at p. 53-54).
Bierl further acknowledged that she was not looking down to see the brace or
anything else that was on the ground and that it was sunny on the date of the
accident.   Bierl also admitted that had she been looking down, she probably could
have seen the brace.
{¶8} Kathy  Lange,  another  party  attendee  who  was  present  during  the
clean-up effort, provided a slightly different version of events in her deposition
regarding what Bierl was carrying before the accident.   Lange initially testified
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Case No. 9-12-42
that Bierl was carrying one garbage bag in each hand when she headed toward the
dumpster  and  that  Bierl  held  the  bags  to  her  sides.    However,  later  in  her
deposition, Lange indicated that Bierl carried the two bags in front of her.
{¶9} Lange also discussed the aftermath of the accident.   She indicated that
she heard Bierl scream and ran down the sidewalk to Bierl’s aid.   Upon reaching
the dumpster area, Lange discovered that Bierl had suffered significant injuries,
and placed a coat over her as she lay on the ground between the metal bracket and
the dumpster.    Lang testified as follows regarding her ability to see the metal
bracket during her run to the dumpster area:
Q:   When did you first notice the bracket, the little piece of metal?
A:   After I was putting my coat on her.   I had taken my coat to
cover her up because it was cold.
* *
Q:   Had you seen  - you did not see that bracket until after she
pointed it out?
A:   No, I didn’t.   I wasn’t actually - I was more concerned for her.
* *
Q:   Could you see the bracket as you approached this area?
A:   No.
Q:   So from this point of view, as you approached the area, the
bracket was not discernible?
A:   No.   (Lange Depo., p. 14-15, 18).
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Case No. 9-12-42
The following exchange also occurred regarding the metal bracket:
Q:                                                                                    * * * Was the bracket open and obvious?   Was it something
you could see?
A:   No.
Q:   Was it in the way?
A:   Yes, obviously, it’s very much in the way.   (Id. at p. 23).
However, Lange acknowledged that if she was looking down and looking for the
bracket, she would have seen it.
{¶10} Thomas  Stanley,  a  maintenance  employee  for  BGZ,  testified
regarding the apartment complex’s four dumpster sites.   He indicated that three of
the dumpster sites do not have metal brackets but that the one Bierl used on the
date of the accident did.
{¶11} The following exchange occurred regarding the use of the dumpsters:
Q:   Tom, * * * people are supposed to be using these dumpsters,
correct?
A:   Correct.
Q:   And,  obviously,  when  they  use  the  dumpsters,  they  are
approaching the dumpsters because they are carrying garbage?
A:   Right.
Q:   It’s foreseeable that people are carrying bags of garbage as they
walk through to the dumpsters?
A:   You would hope.   (Stanley Depo., p. 12).
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Case No. 9-12-42
Stanley also testified to the foreseeability that an older female would carry a
garbage bag in such a way as to obstruct the view of the metal brace that Bierl
tripped over:
Q:   It’s foreseeable that an older lady carrying a garbage bag might
use both hands to carry the bag in front of her?
A:   Yes.
Q:   In doing that process, that person’s view of the bracket would
be obscured, right?
A:   Probably would, yes.   (Id. at p. 14-15).
{¶12} On May 2, 2011, BGZ filed its motion for summary judgment on all
of the claims raised in Bierl’s complaint.   Attached to the motion was the affidavit
of Meredith Dirst, the property manager of the apartment complex.1   She attested
that the metal brace was painted red and could be seen at a distance of 100 feet
from the dumpster.   Pictures of the brace were affixed to the affidavit.   After Bierl
filed  her  response,  BGZ  submitted  a  reply  brief  that  included  an  additional
affidavit from Dirst indicating that Amber had to pay $25 to reserve the clubhouse
for the October 17, 2009 party.2
1 The original affidavit attached to the motion was neither notarized nor signed.   To correct this, BGZ later
submitted a properly signed and notarized affidavit.
2  After these three filings, Bierl filed a                                                                      “Supplement to  Memorandum and Opposition to  Motion for
Summary  Judgment”  on  January  27,                                                                             2012.     In  this  supplement,  Bierl  first  argued  that  attendant
circumstances  obviated  the  applicability  of  the  open  and  obvious  doctrine.    BGZ  moved  that  the
supplement be stricken, but the trial court did not rule on BGZ’s request.   Accordingly, we assume that the
trial court denied the motion.   Seff v. Davis, 10th Dist. No. 03AP-159, 2003-Ohio-7029, ¶ 16.
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Case No. 9-12-42
{¶13} The trial court granted BGZ’s motion for summary judgment on June
19, 2012.   The trial court found that the dumpster area was not part of the leased
premises and accordingly ruled that the Landlord-Tenant Act did not apply to the
trip and fall accident.   It further found that Bierl was not a third party beneficiary
of the lease between BGZ and Amber.   Finally, it found, based on the photographs
of the metal bracket and the purported analogousness of this matter to Novik v.
Kroger Co., 3d Dist. No. 9-11-21, 2011-Ohio-5737, that the bracket was an open
and obvious danger that precluded Bierl from recovering on the basis of common
law premises liability.
{¶14} Bierl timely appealed from this judgment, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED IN GRANTING DEFENDANT-
APPELLEE’S  MOTION  FOR  SUMMARY  JUDGMENT  IN
FINDING THAT THERE IS NO MATERIAL ISSUE OF FACT
THAT  THE  BRACKET  IN  QUESTION  WAS  OPEN  AND
OBVIOUS  THUS  OBVIATING  THE  APPELLEE  FROM  A
DUTY TO WARN OF THE DANGER.
Assignment of Error No. II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN  THE  COURT  SUMMARILY  DETERMINED  THAT
THE   DUMPSTER   AREA   WHERE   APPELLANT   WAS
INJURED WAS NOT PART OF THE “LEASED PREMISES”
AND   THAT   THE   PROTECTION    AFFORDED   THE
TENANTS   PER   SECTION                                                                   5321.04   ORC   ARE   NOT
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Case No. 9-12-42
APPLICABLE TO THE APPELLANT WHILE LAWFULLY
ON THE PREMISES.
Assignment of Error No. III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN  SUMMARILY  GRANTING  DEFENDANT-APPELLEE’S
MOTION  FOR  SUMMARY  JUDGMENT  FINDING  THAT
THE PLAINTIFF-APPELLANT AS A GUEST OF TENANT
WAS  NOT  A  THIRD  PARTY  BENEFICIARY  OF  THE
CONTRACT  BETWEEN  THE  TENANT  [SIC]  AND  NOT
AFFORDED THE SAME PROTECTION THE LAND LORD
[SIC]   OWED   ITS   TENANT   PURSUANT   TO   THE
CONTRACT.
Assignment of Error No. I
{¶15} In  her  first  assignment  of  error,  Bierl  argues  that  the  trial  court
improperly granted summary judgment in favor of  BGZ on her common law
premises liability claim.   Specifically, she contends that the trial court erred in
finding that the open and obvious doctrine bars her negligence claim.   We agree.
Summary Judgment Standard
{¶16} An  appellate  court  reviews  a  summary  judgment  order  de  novo.
Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.
1999).    Accordingly,  a  reviewing  court  will  not  reverse  an  otherwise  correct
judgment merely because the lower court utilized different or erroneous reasons as
the  basis  for  its  determination.     Diamond  Wine  &  Spirits,  Inc.  v.  Dayton
Heidelberg Distris., Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),
citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d
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217, 222 (1994).   Summary judgment is appropriate when, looking at the evidence
as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving
party is entitled to judgment as a matter of law.   Civ.R. 56(C).   In conducting this
analysis the court must determine  “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,  [the nonmoving] party being entitled to have the
evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”
Id.   If any doubts exist, the issue must be resolved in favor of the nonmoving
party.  Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).
{¶17} The party moving for summary judgment has the initial burden of
producing  some  evidence  which  demonstrates  the  lack  of  a  genuine  issue  of
material fact.   Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).   In doing so, the
moving  party  is  not  required  to  produce  any  affirmative  evidence,  but  must
identify those portions of the record which affirmatively support his argument.   Id.
The nonmoving party must then rebut with specific facts showing the existence of
a genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings.   Id.; Civ.R. 56(E).
The Open and Obvious Doctrine
{¶18} A negligence claim requires that the plaintiff show the “existence of
a duty, breach of that duty, and an injury proximately caused by the breach.”
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Case No. 9-12-42
Miller v. Grewal Bros. Corp., 3d Dist. No. 7-11-12, 2012-Ohio-1279, ¶ 13, citing
Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680
(1998).    In  regard  to  the  existence  of  a  duty,  Ohio  courts  have  found  that
landowners do not owe a duty to warn land entrants of open and obvious dangers.
E.g., Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 13
(“[W]e reiterate that when courts apply [the open and obvious doctrine], they must
focus on the fact that the doctrine relates to the threshold issue of duty.”); Sidle v.
Humphrey, 13 Ohio St.2d 45 (1968), paragraph one of the syllabus (“An occupier
of premises is under no duty to protect a business invitee against dangers which
are known to such invitee or are so obvious and apparent to such invitee that he
may reasonably be expected to discover them and protect himself against them.”).
Accordingly,  the  open  and  obvious  doctrine  operates  to  completely  bar  a
negligence claim and summary judgment is appropriate.   Lang v. Holly Hill Motel,
Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, ¶ 11 (“[W]hen a plaintiff is injured by
an open and obvious danger, summary judgment is generally appropriate because
the duty of care necessary to establish negligence does not exist as a matter of
law.”).   The reasoning behind this doctrine is that “the open and obvious nature of
the hazard itself serves as a warning.   Thus, the owner or occupier may reasonably
expect that the person entering the premises will discover those dangers and take
appropriate measures to protect themselves.”   Simmers v. Bentley Constr. Co., 64
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Ohio St.3d 642, 644 (1982); see also Armstrong at ¶ 13 (“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.”).
{¶19} “A  hazard  is  open  and  obvious  when  in  plain  view  and  readily
discoverable upon ordinary inspection.”   Stewart v. AMF Bowling Ctrs., Inc., 3d
Dist. No.  5-10-16,  2010-Ohio-5671,  ¶  15.    Rather than rely on the plaintiff’s
subjective beliefs to determine the existence of such a hazard, we assess whether a
reasonable person would have discerned the hazard.   Carnes v. Sieferd, 3d Dist.
No. 1-10-88, 2011-Ohio-4467, ¶ 19.   In performing this analysis, we have noted
that  “‘even an obstruction that sits low to the ground  *  *  * may be open and
obvious as a matter of law, so long as it is not concealed.’”   Mohn v. Wal-Mart
Stores, Inc.,  3d Dist. No.  6-08-12,  2008-Ohio-6184,  ¶  14, quoting Johnson v.
Golden Corral, 4th Dist. No. 99CA2643 (Sept. 12, 2000).
{¶20} We find two cases to be of particular relevance to this matter.   In
Kidder v. Kroger Co., 2d Dist. No. 20405, 2004-Ohio-4261, the Second District
found that the trial court improperly granted summary judgment on the basis of the
open and obvious doctrine.   There, the plaintiff slipped on a puddle of water in a
grocery store “immediately upon turning the corner at the end of an aisle.”   Id. at ¶
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9.   As a result, “she had little advance opportunity to perceive the hazard,” which
indicated that there was a genuine issue of material fact as to the open and obvious
nature of the puddle.   Id.
{¶21} Similarly, in Miller v. Beer Barrel Saloon, 6th Dist. No. 90-OT-050
(May 24, 1991), the plaintiff was at one end of an L-shaped bar when her husband
beckoned her to come to the other side of the bar.   The plaintiff consequently
followed the bar, took a 90 degree turn, and within a couple of steps, she slipped
on rolled up mats that were on the floor.   The Sixth District reversed the trial
court’s grant of summary judgment in favor of the defendant property owner
because the placement of the mats, combined with the plaintiff’s path around the
bar, rendered her unable to see the mats.  Id.
{¶22} Nearly the same facts are present here.   As reflected in Bierl’s and
Lange’s  depositions,  Bierl’s  only  reasonable  pathway  to  the  dumpster  only
allowed her to see the white walls around the dumpster until she turned the corner.
According to Bierl, she fell shortly after turning the corner, suggesting that “she
had little advance opportunity to perceive” the metal brace.   Kidder at ¶ 9.   In light
of this evidence and the guidance of Kidder and Miller, we believe that there is a
genuine issue of material fact as to whether the brace was open and obvious.
{¶23} Bierl’s lack of  familiarity with the  dumpster area where she fell
further bolsters our finding that such a genuine issue of material fact exists.   In
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many of our previous cases, we have found that the open and obvious doctrine
applies where the plaintiff testified that he had been to the area of the accident
before or knew that the hazard was present before the accident.   E.g., Novik, 2011-
Ohio-5737, at ¶ 24; Stewart, 2010-Ohio-5671, at ¶ 17; Lyle v. PK Mgt., LLC, 3d
Dist. No.  5-09-38,  2010-Ohio-2161, at  ¶  29; Mohn,  2008-Ohio-6184, at  ¶  16;
Williams v. Lowe’s of Bellefontaine, 3d Dist. No. 8-06-25, 2007-Ohio-2045, ¶ 22;
Brown v. Whirlpool Corp., 3d Dist. No. 9-04-12, 2004-Ohio-5101, ¶ 15; Branham
v. Moore, 3d Dist. No. 11-2000-09 (Nov. 8, 2000); Primavera v. Guthery, 3d Dist.
No. 9-96-11 (June 24, 1996).   But, this matter implicates a very different dynamic.
Bierl testified in her deposition that she had previously used dumpsters at the
complex, but not the one that was closest to the clubhouse.   Further, Stanley’s
deposition testimony established that the dumpster closest to the clubhouse was
the only one that included a metal brace.   From this evidence, it is apparent that
Bierl had no familiarity with this dumpster area before her trip and that she had no
knowledge of the metal brace.   See Miller, supra                                       (reversing grant of summary
judgment in favor of the defendant property owner where the plaintiff had not
been to the area of the accident before).   In fact, the evidence suggests that Bierl
would reasonably expect, from her trips to the complex’s other dumpsters, that the
brace would not be present.   See Smith v. Frederick C. Smith Clinic, 189 Ohio
App.3d  473,  2010-Ohio-4548,  ¶  28  (3d Dist.)  (finding that open and obvious
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Case No. 9-12-42
doctrine did not bar negligence claim since reasonable person, based on common
experience, would not expect an automatic sliding door to close on him while he
passed through a doorway).
{¶24} In sum, we find that, when viewing all inferences in favor of Bierl,
there is a genuine issue of material fact regarding the open and obvious nature of
the metal brace.   Consequently, the trial court erred in granting summary judgment
in favor of BGZ on Bierl’s premises liability claim.
{¶25} Accordingly, we sustain Bierl’s first assignment of error.
Assignment of Error No. II
{¶26} In her second assignment of error, Bierl argues that the trial court
erred in granting summary judgment to BGZ on her claim that BGZ violated the
Landlord-Tenant Act.    Specifically, Bierl argues that the trial court improperly
found that the dumpster area was not part of the residential premises.   We agree.
{¶27} This  assignment  of  error  revolves  around  our  resolution  of  two
issues.   First, does the Landlord-Tenant Act create liability on a landlord’s part to
a tenant’s social guest who is injured in an area that is not under the tenant’s
exclusive control?   Second, if the Landlord-Tenant Act does create such liability,
is the dumpster area implicated in this matter a “common area[] of the premises”
that  is  covered  by  R.C.                                                              5321.04(A)(3)?    We  answer  both  questions  in  the
affirmative.
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The Landlord-Tenant Act
{¶28} At common law, a landlord generally owed no duty to a residential
tenant or his guest.   Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d
414,  417-18  (1994).    However, the  General Assembly partially abrogated the
common law with the enactment of the Landlord-Tenant Act, which is codified in
R.C. Chapter 5321.    Id. at 419.  The statute provides, in pertinent part, as follows:
(A)  A landlord who is a party to a rental agreement shall do all of
the following: * * *
(3) Keep all common areas of the premises in a safe and sanitary
condition[.]   R.C. 5321.04(A)(3).
Pursuant to R.C. 5321.01(C), a “residential premises” is defined as:
[A]  dwelling  unit  for  residential  use  and  occupancy  and  the
structures of which it is part, the facilities and appurtenances in it,
and the grounds, areas, and facilities for the use of tenants generally
or the use of which is promised the tenant.
{¶29} It is well-established that if the language of a statute is plain and
unambiguous, there is no need for a court to apply further rules of  statutory
interpretation.   State v. Siferd, 151 Ohio App.3d 103, 2002-Ohio-6801, ¶ 33 (3d
Dist.).   Words and phrases must be read in context and given their usual, normal,
and customary meanings.   R.C. 1.42; Proctor v. Kardassilaris, 115 Ohio St.3d 71,
2007-Ohio-4838, ¶ 12.   Further, “[i]t is an axiom of judicial interpretation that
statutes be construed to avoid unreasonable or absurd consequences.”   State ex rel.
Seneca Cty. Bd. of Commrs.,  175 Ohio App.3d  721,  2008-Ohio-736,  ¶  28  (3d
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Case No. 9-12-42
Dist.), quoting State ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St.3d 382, 384
(1985).
{¶30} However, where the meaning of a statute is ambiguous, a court may
examine its legislative history or consider the statute in pari materia to ascertain its
meaning.   State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, ¶ 34; State ex
rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph two of the syllabus.
“In determining legislative intent when faced with an ambiguous statute, the court
may  consider  several  factors,  including  the  object  sought  to  be  obtained,
circumstances under which the statute was enacted, the legislative history, and the
consequences of a particular construction.”   Bailey v. Republic Engineered Steels,
Inc.,                                                                                      91  Ohio  St.3d  38,  40  (2001).    Additionally,  “‘a  court  cannot  pick  one
sentence and disassociate it from the context, but must look to the four corners of
the enactment to determine the intent of the enacting body.’”   Jackson at ¶ 34,
quoting State v. Wilson,  72 Ohio St.3d  334,  336  (1997).    Further, a court is
permitted to consider laws concerning the same or similar subjects to discern
legislative intent.   R.C. 1.49(D); see also D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd.
of Health,  96 Ohio St.3d  250,  2002-Ohio-4172,  ¶  20  (“Statutes relating to the
same matter or subject * * * are in patri materia and should be read together to
ascertain and effectuate if possible the legislative intent.”).
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A Landlord’s Liability under the Landlord-Tenant Act to Guests
{¶31} Shump  contains  the  Ohio  Supreme  Court’s  first  discussion  of  a
landlord’s potential liability for a social guest’s injury under the Landlord-Tenant
Act.   There, the plaintiff’s decedent was the guest of a tenant who leased a two-
story  townhouse  from  the  landlord.    The  landlord  only  installed  one  smoke
detector and it was located on the second floor of the townhouse.   When a fire
began on the first floor of the townhouse, the smoke detector did not go off until it
was too late for the decedent to escape.   The plaintiff then brought a wrongful
death claim alleging that the landlord was negligent in the installation of the
smoke detector.  Shump, 71 Ohio St.3d at 415-16.
{¶32} Regarding  the  plaintiff’s  common  law  premises  liability  claim
against the landlord, the Court stated as follows:
[T]he common-law classifications of trespasser, licensee, and invitee
determine the legal duty that a tenant owes others who enter upon
rental  property that  is  in  the  exclusive  possession  of  the  tenant.
However, with regard to areas within the exclusive possession of a
tenant, the common-law classifications do not affect the legal duty
that a landlord owes a tenant or others lawfully upon the leased
premises.  Id. at 417.
As a result, the Court found that “[a] landlord owes the same duties to persons
lawfully upon the leased premises as the landlord owes to the tenant.”    Id. at
syllabus.
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Case No. 9-12-42
{¶33} Although the plaintiff in Shump did not assert a claim based on the
Landlord-Tenant Act, the Court still addressed the applicability of its finding on
the statute.   In doing so, it stated as follows:
We do not believe that the [Landlord-Tenant Act] alters this well-
settled common-law principle.                                                            * * *   Thus, the obligations imposed
upon  a  landlord  under  R.C.  5321.04  would  appear  to  extend  to
tenants  and  to  other  persons  lawfully upon  the  leased  premises.
(Emphasis sic.)  Id. at 420.
Moreover, the Court reiterated its holdings in Marqua v. Mann, 109 Ohio St. 56
(1923), and Stackhouse v. Close, 83 Ohio St. 339 (1911), “that a landlord may be
held liable to a tenant’s guest for the breach of a statutory duty imposed upon the
landlord.”   Shump at 420.
{¶34} BGZ seizes upon Shump’s use of the term “leased premises” when
referring to the scope of a landlord’s duties to guests and argues that the Landlord-
Tenant Act only creates liability on a landlord’s part if the tenant’s guest suffers
his or her injury while in an area that is under the tenant’s exclusive control.   BGZ
also cites to several cases in which the Ninth District Court of Appeals applied
Shump and found that R.C. 5921.04 did not inculpate a landlord for the injuries
that a guest suffered while in the common areas of the landlord’s premises.   E.g.,
Shumaker v. Park Lane Manor of Akron, 9th Dist. No. 25212, 2011-Ohio-1052, ¶
12; Owens v. French Village Co., 9th Dist. No. 99CA0058 (July 26, 2000); Rios v.
Shauck, 9th Dist. No. 97CA006753 (June 3, 1998); Sanders v. Bellevue Manor
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Case No. 9-12-42
Apartments, 9th Dist. No. 95CA006067 (Jan. 3, 1996).   However, after reviewing
Shump  and  the  Landlord-Tenant  Act,  we  disagree  with  the  Ninth  District’s
position.   Instead, we adopt the Tenth District’s reasoning in Mann v. Northgate
Investors, LLC, 10th Dist. No. 11AP-684, 2012-Ohio-2871, appeal accepted, 133
Ohio  St.3d  1463,  2012-Ohio-2871,3  and  likewise  find  that  the  statute  creates
liability on a landlord’s part for the injuries sustained by guests in common areas
of a residential premises.
{¶35} In Mann, the plaintiff was injured while visiting a tenant who leased
an apartment unit from the defendant.   The plaintiff fell on the staircase leading to
the  tenant’s  apartment,  allegedly  because  the  defendant  negligently  failed  to
replace a burned-out light bulb.   The trial court granted the defendant’s motion for
summary judgment on the basis that R.C. 5321.04 did not apply.   Id. at ¶ 2-5.   On
appeal, the defendant, like BGZ here, cited to Shump’s “leased premises” language
and the Ninth District’s case law to support its case for affirmance.   Id. at ¶ 15.
The  Tenth  District  disagreed  and  reversed  the  trial  court,  finding  that Shump
supported the proposition that “landlords owe to guests of a tenant in the common
areas the same duties the landlord owes to a tenant.”   Id. at ¶ 20.   Other courts in
this state have reached the same conclusion.   E.g., Smith v. Finn, 6th Dist. No. L-
3 Mann is currently pending before the Supreme Court of Ohio.   The certified question for the Court’s
review is “[w]hether a landlord owes the statutory duties of R.C. 5321.04(A)(3) to a tenant’s guest properly
on the premises but on the common area stairs at the time of injury?”
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Case No. 9-12-42
04-1244, 2005-Ohio-1547, ¶ 13-14; Hodges v. Gates Mills Towers Apt. Co., 8th
Dist. No. 77278 (Sept. 28, 2000).   We adopt the logic of Mann for three reasons.
{¶36} First, the Tenth District’s view is consistent with the language of the
Landlord-Tenant Act.   R.C. 5321.12 provides that “[i]n any action under Chapter
5321. of the Revised Code, any party may recover damages for the breach of
contract or a breach of any duty that is imposed by law.”                                (Emphasis added.)   R.C.
5321.12.   The use of the term “any party” is instructive.   Rather than use “tenant”
or                                                                                       “landlord,”  both  of  which  are  defined  terms  in  R.C.  5321.01,  or  refer  to
particular types of guests, the General Assembly elected to use the expansive term
“any  party.”    Had  the  General  Assembly  intended  to  maintain  a  distinction
between guests who are injured in the common areas of a residential premises and
guests who are injured within the tenant’s defined leasehold estate, it certainly
would have chosen a more limiting term than “any party.”
{¶37} Second, the outcome and reasoning of Mann is also in concert with
the holding in Shump.   Since Shump involved the landlord’s alleged negligence in
installing a smoke detector within the apartment unit leased by a tenant, its holding
does not  mandate that the courts exculpate  landlords from liability under the
Landlord-Tenant Act for a guest’s injuries that were sustained in common areas.
Rather,  Shump  leaves  that  issue  unresolved  and  indeed  it  suggests  that  such
injuries are covered by the statute.
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{¶38} As noted by the Tenth District in Mann, the Court explicitly rejected
the reasoning found in Rose v. Cardinal Industries, Inc., 68 Ohio App.3d 406 (6th
Dist. 1990), and Seiger v. Yeager, 44 Ohio Misc.2d 40 (C.P. 1988).   Shump, 71
Ohio St.3d at 420.   In Rose, the plaintiff was injured while visiting a tenant who
leased an apartment unit from the defendant.   The plaintiff slipped on wet grass
immediately in front of the sidewalk that led to the tenant’s unit.   Rose at 407.
The Sixth District affirmed a grant of summary judgment in favor of the defendant
because “in the absence of any clear statutory provision or case law specifically
extending the duties and remedies of R.C. 5321.04 to social guests of tenants,” it
would not find a violation of the statute.   Id. at  410; see also Sieger at  41-42
(granting summary judgment to landlord-defendant where plaintiff-social guest
injured herself in driveway of residential rental property she was visiting).   By
rejecting Rose and Sieger, both of which involve social guests injuring themselves
in common areas, the Supreme Court sent a clear signal in Shump - landlords are
liable  under  R.C.  Chapter                                                              5321  when  social  guests  of  their  tenants  injure
themselves in common areas.
{¶39} Third, Mann is consistent with our decision in Elliott v. Massey, 3d
Dist. No. 3-94-23 (Mar. 20, 1995).   There, the plaintiff was a social guest of a
tenant who leased residential property from the defendant.   In the course of the
visit, the plaintiff slipped and fell on a slab that led to the property.   We reversed
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the trial court’s grant of summary judgment in favor of the defendant because
“R.C. 5321.04 applies to a tenant as well as a tenant’s guest; thus, the duty owed is
not determined by an individual’s classification as business invitee or licensee.”
Id.; see also Saunders v. Greenwood Colony, 3d Dist. No. 14-2000-40 (Feb. 28,
2001) (noting that “common law distinctions continue to control only as to the
relationship between the guest and the tenant”).   This finding hints that we do not
view  the  Landlord-Tenant  Act  as  only inculpating  a  landlord  for  the  injuries
suffered  by a  tenant’s  guest  within  the  areas  solely controlled  by the  tenant.
Accordingly, following Elliott’s guidance requires us to find that the Landlord-
Tenant Act inculpates a landlord for the injuries that a tenant’s guest sustains in
common areas.
{¶40} We are not persuaded by BGZ’s argument that the use of  “leased
premises” in Shump indicates that a landlord cannot be liable under the Landlord-
Tenant Act for the injuries a tenant’s guest suffers in the common areas of a
residential premises.   A review of Shump reveals that the Court used both “leased
premises” and “rental property” when referring to the area which the landlord was
responsible for maintaining.   E.g., Shump, 71 Ohio St.3d at 419 (“The proposition
that a landlord owes the same duties to persons lawfully upon the rental property
as  the  landlord  owes  to  the  tenant  is  not  unique  to  Ohio.”).    The  Court’s
interchangeable use of these two terms suggests that the Court did not intend its
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Case No. 9-12-42
use of “leased premises” to convey a specific meaning that is different from the
definition of “residential premises” that is provided in R.C. 5321.01(C).
{¶41} Further, the Court unequivocally stated that “the obligations imposed
upon a landlord under R.C. 5321.04 would appear to extend to tenants and to other
persons lawfully upon the leased premises.”                                                (Emphasis sic.)   Id. at 420.   R.C.
5321.04(A)(3), which the Court explicitly extends to both tenants and guests,
refers to a landlord’s duty to “keep all common areas of the premises in a safe
sanitary condition”  in  cross-reference  to  the  statutory definition  of  residential
premises in R.C. 5321.01(C).   This statement in Shump, when read in conjunction
with R.C.  5321.01(C) and  5321.04(A)(3), indicates that the Court intended to
place landlords under a duty to maintain the “common areas” of the “residential
premises” as those terms are used and defined in the statute.   As a result, any use
of “leased premises” within the body of Shump was not intended to contravene or
vary the dictates of the statute.
{¶42} Based  on  the  plain  terms  of  the  Landlord-Tenant  Act,  the  Ohio
Supreme Court’s reasoning in Shump, and the Tenth District’s decision in Mann,
we find that the Landlord-Tenant Act allows social guests of tenants to maintain
actions against landlords for the injuries that the guests sustain in the common
areas of residential properties they are visiting.   As a result, BGZ is potentially
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Case No. 9-12-42
liable for Bierl’s injuries provided that Bierl sustained her injury in a common area
of the apartment complex in which Amber resided.
BGZ’s Liability for Bierl’s Injuries
{¶43} In  its  appellate  brief,  BGZ  admits  that  the  dumpster  area  is  a
common area.   (Appellee’s Br., p. 12).   Indeed, Stanley’s deposition testimony that
the dumpster areas are generally available for the use of tenants at the complex
confirms this admission.    Based on this, we find that the dumpster area is a
common area and that, pursuant to R.C.  5321.04(A)(3), BGZ had the duty to
maintain the dumpster area in a “safe and sanitary condition” for the benefit of
tenants and their guests, including Bierl.   As a result, the trial court’s finding that
the Landlord-Tenant Act did not apply to Bierl’s injuries was erroneous.
{¶44} In sum, the Landlord-Tenant Act applies with equal force to social
guests of tenants regardless of whether they are injured in the common areas of a
residential premises or within areas solely controlled by tenants.   As such, because
the dumpster area is a common area of the apartment complex owned by BGZ, it
owed a duty under the Landlord-Tenant Act to maintain the dumpster area in a
safe condition for the benefit of Bierl, who was a guest of Amber, one of BGZ’s
tenants.   Consequently, we find that, when viewing all inferences in favor of Bierl,
there is a genuine issue of material fact as to whether BGZ violated the Landlord-
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Case No. 9-12-42
Tenant Act and the trial court erred in granting summary judgment on Bierl’s
claim under the Landlord-Tenant Act
{¶45} Accordingly, we sustain Bierl’s second assignment of error.
Assignment of Error No. III
{¶46} In her third assignment of error, Bierl contends that the trial court
erroneously granted summary judgment to BGZ on her breach of contract claim.
Specifically, Bierl claims that she is a third party beneficiary of the lease between
Amber and BGZ.   We disagree.
{¶47} To enforce a contract, a party must be an intended beneficiary and
not a mere incidental beneficiary.   Hill v. Sonitrol of Southwestern Ohio, Inc., 36
Ohio St.3d 36, 40 (1988).   In Hill, the Supreme Court of Ohio adopted the Second
Restatement’s definitions of intended and incidental beneficiaries.   The definitions
are as follows:
(1)                                                                                     * * * [A] beneficiary of a promise is an intended beneficiary if
recognition  of  a  right  to  performance  in  the  beneficiary  is
appropriate to effectuate the intention of the parties and either:
(a)   the performance of the promise will satisfy an obligation of the
promisee to pay money to the beneficiary; or
(b)   the circumstances indicate that the promisee intends to give the
beneficiary the benefit of the promised performance.
(2)   An  incidental  beneficiary  is  a  beneficiary  who  is  not  an
intended  beneficiary.                                                                  2  Restatement  of  the  Law  2d,  Contracts,
Section 302 (1981).
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Case No. 9-12-42
{¶48} The  Court  also  adopted  the  “intent  to  benefit”  test  to  delineate
between intended and incidental beneficiaries.   The test is as follows:
“[I]f the promisee * * * intends that a third party should benefit from
the contract, then the third party is an ‘intended beneficiary’ who has
enforceable rights under the contract.   If the promisee has no intent
to  benefit  a  third  party,  then  any  third  party  beneficiary  to  the
contract  is  merely  an                                                                 ‘incidental  beneficiary,’  who  has  no
enforceable rights under the contract.”   Hill at 40, quoting Norfolk &
W. Co. v. United States, 641 F.2d 1201, 1208 (6th Cir. 1980).
The Hill test remains viable in Ohio courts.   E.g., Huff v. FirstEnergy Corp., 130
Ohio St.3d 196, 2011-Ohio-5083, ¶ 10-11 (applying Hill test).
{¶49} The Supreme  Court has provided the following guidance for the
application of the Hill test:
Courts  generally  presume  that  a  contract’s  intent  resides  in  the
language the parties choose to use in the agreement.   Only when the
language  of  a  contract  is  unclear  or  ambiguous,  or  where  the
circumstances surrounding the agreement invest the language of a
contract  with  a  special  meaning  will  extrinsic  evidence  be
considered in an effort to give effect to the parties’ intentions.   Ohio
law thus requires that for a third party to be an intended beneficiary
under the contract, there must be evidence that the contract was
intended to directly benefit that third party.   Generally, the parties’
intention to benefit a third party will be found in the language of the
agreement.   (Internal citations and quotations omitted.)  Id. at ¶ 12.
Further,  courts  have  noted  that  for  a  person  to  claim  intended  third  party
beneficiary status, the contracting parties must have entered into the contract for
the primary benefit of that person.   E.g., Caruso v. Natl. City Mtge. Co., 187 Ohio
App.3d                                                                                   329,                                       2010-Ohio-1878,   ¶   23   (1st  Dist.).   Nevertheless,  there  is  no
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Case No. 9-12-42
requirement that the contract explicitly identify the third party beneficiary.   First
Fed. Bank v. Angelini, 3d Dist. No. 3-07-04, 2007-Ohio-6153, ¶ 11.
{¶50} The record indicates that BGZ and Amber did not enter into their
lease agreement to primarily or directly benefit Bierl.   The lease’s purpose was to
govern the contractual relationship between BGZ and Amber for the use of the
leased premises.   Both BGZ and Amber received the primary benefits of the lease.
Namely, BGZ received monthly rental payments and Amber’s agreement to abide
by her duties listed in the lease while Amber received the right to occupy her
apartment unit and BGZ’s agreement to abide by its duties listed in the lease.
Meanwhile, Bierl merely received the incidental benefit of being able to visit
Amber at her apartment unit.
{¶51} Further, the lease includes two provisions identifying the persons
who could legally occupy the apartment unit.   The only persons identified in these
sections were Amber, her son, and her then-boyfriend.   None of the provisions
refer to Bierl or any other guest, suggesting that the Lease was not made for her
primary benefit.
{¶52} In support of her intended third party beneficiary claim, Bierl cites
several passages in the lease that refer to guests.   But, a review of these passages
reveals that they only relate to either Amber’s responsibility for her guests’ actions
or BGZ’s liability to guests for its negligence.   These provisions do not manifest
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Case No. 9-12-42
an intent to primarily benefit Bierl.    Rather, they evince Amber’s and BGZ’s
agreement  regarding  Amber’s  use  of  the  leased  premises  and  the  parties’
respective duties in ensuring the premises’ maintenance during the lease period.
Again, Amber received the primary benefit of the parties’ agreement in this regard
and Bierl merely received an incidental benefit.
{¶53} In sum, Bierl was an incidental third party beneficiary of Amber’s
lease agreement with BGZ.    As such, she is unable to enforce the obligations
included in the lease and the trial court was correct in granting summary judgment
in favor of BGZ on Bierl’s third party beneficiary claim.
{¶54} Accordingly, we overrule Bierl’s third assignment of error.
{¶55} Having found no error prejudicial to Bierl in the third assignment of
error,  but  having  found  error  prejudicial  to  Bierl  in  the  first  and  second
assignments  of  error,  we  affirm  in  part  and  reverse  in  part  the  trial  court’s
judgment  and  remand  this  matter  for  further  proceedings  consistent  with  this
opinion.
Judgment Affirmed in Part,
Reversed in Part, and
Cause Remanded
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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