COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67917 JOSEPHINE PURPERA : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION JOYCE ASAMOTO, ET AL. : : PER CURIAM Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-256224 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: DALE R. FRIEDLAND, ESQ. ROBERT J. KOETH, ESQ. 1621 Euclid Ave., #716 Bertsch, Millican & Cleveland, Ohio 44115-2198 Winslow, Co., L.P.A. 1280 West Third Street Second Floor Cleveland, Ohio 44113 KATHLEEN C. HOPKINS, ESQ. JOSEPH R. WANTZ, ESQ. Meyers, Hentemann, Schneider & Rea Co., L.P.A. 815 Superior Avenue, 21st Floor Cleveland, Ohio 44114 - 2 - PER CURIAM: Plaintiff-appellant Josephine Purpera, appeals a summary judgment granted in favor of defendant-appellee, Joyce Asamoto (hereinafter, Asamoto) and third party defendants-appellees, Maria L. Klein and Dolores C. Knowlton, Inc. (hereinafter, Klein, et al.) in her personal injury action predicated upon negligence. In her first assignment of error, appellant claims that in construing the evidence most strongly in her favor, reasonable minds could come to a different conclusion with respect to the court's award of summary judgment. In her second assignment of error, appellant claims that the trial court's acceptance of Asamoto's and Klein's reply briefs was improper. Upon review, we find appellant's assignments of error to be without merit. Accordingly, the judgment of the trial court is affirmed. On August 5, 1993, appellant, a real estate agent, filed the instant action alleging that she injured herself on January 28, 1992 when she fell from a small platform or raised floor in the basement of Asamoto's residence while showing the residence listed by Klein, et al., to a prospective buyer. Appellant claimed that Asamoto's and Klein's failure to warn her of the defect in the basement and their failure to maintain adequate lighting proximately caused her injuries. Asamoto denied these allegations and raised various affirmative defenses including appellant's own negligence as the proximate cause of her injuries. Klein et al., - 3 - also denied these allegations which appellant advanced in her third party complaint for indemnity and or/contribution. On June 15, 1994, Asamoto filed a motion for summary judgment arguing that she listed the house exclusively with Klein, et al.; that as a consequence she had no duty to warn the appellant of the open and obvious condition of her basement; that any alleged breach of a duty to warn was not the proximate cause of appellant's injuries and that appellant's own negligence in stepping into the dark pursuant to the "step-in-the-dark" rule set forth in Posen v. ABC Motor Court Hotel (1976), 45 Ohio St.2d 271 outweighed any negligence on her part and was the proximate cause of her injuries. Klein, et al., also filed motions for summary judgment arguing that they too had no duty to warn of open and obvious conditions; that they satisfied any duty to warn via their multiple listing fact sheet which required agents to call for disclosures regarding the residence and that appellant assumed the risk of her own injuries by walking into a dark basement. Appellant defended the motion arguing that the residence had been undergoing remodeling for a long period prior to the time of the incident; that the lights above the stairway to the basement failed to operate and that she was not warned of latent defects in the basement of the residence. Asamoto and Klein et al., filed reply briefs on August 9 and August 12, 1994. On August 15, 1994, appellant filed an objection to the filing of reply briefs and also filed a request for - 4 - sanctions. On August 18, 1994 the court denied her request for sanctions and granted summary judgment in favor of Asamoto and Klein. The instant appeal followed. I THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS AND THIRD-PARTY DEFENDANTS SINCE REASONABLE MINDS CONSTRUING THE EVIDENCE MOST FAVORABLY TOWARD THE PLAINTIFF COULD HAVE COME TO A DIFFERENT CONCLUSION. We find appellant's assignment of error to be unpersuasive. Summary judgment is proper, pursuant to Civ.R. 56(B) if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (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 viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; See, also Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. See, Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 666. The step-in-the dark rule, as enunciated by Ohio courts, holds generally that 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. Flury v. Central Publishing House (1928), 118 Ohio St. 154; McKinley v. Niederst (1928), 118 Ohio St. 334. Posin v. Hotel (1976), 45 Ohio St.2d 271, 276. The record demonstrates, and it is undisputed, that the appellant stood at the top of a flight of basement stairs, - 5 - recognized that the light fixture to illuminate the stairs and basement did not work and notwithstanding these conditions, descended the stairs, stepping into ever increasing darkness until 1 she admittedly could not see clearly. The record further demonstrates that despite her inability to see the basement floor she continued to descend the stairs and stepped off of same until 1 Asamoto attached the following deposition testimony to her motion for summary judgment: Q: So you had no trouble seeing; is that correct? A: I had trouble seeing when I got to the basement, yes; because there were no lights on. Q: When you had trouble, when you got to the basement stairs was the basement pitch black? A: It was pretty dark, yes. It wasn't pitch black. * * * Q: Did you say, "It's too dark down here. Let's go get a flashlight?" A: No. (Purpera Depo. Pg 23) * * * Q: You could not see clearly; is that correct? A: That's right. * * * Q: You had never been in that basement before? A: That's right. I'd never been in there. Q: You didn't know what to expect down that basement; correct? A: That's right. Q: You didn't know what objects might be on the floor? A: That's correct. * * * A: No. Sir, I would not have fallen if I were able to see the whole basement. (Purpera Depo. Pgs. 24-25) - 6 - she fell due to an alleged defect in the floor. Moreover, and it is undisputed, appellant made no attempt to protect herself against the darkness and made no attempt to call Klein to determine whether there were any defects in the house despite the fact that Klein's multiple listing sheet required all agents call for disclosures 2 regarding the residence. While appellant argued that the basement floor was in violation of local codes, she provided no supporting evidence of same. Significantly, Asamoto provided documentation that her basement floor was never cited as a violation either before or after she purchased the house or at the time she listed the house with Klein et al. (Exhibit A, Asamoto's Reply Brief) We are not unmindful that principles of comparative negligence have superseded the doctrine of contributory negligence as an absolute bar to recovery under R.C. 2315.19. However, the advent of comparative negligence analysis does not necessarily preclude an award of summary judgment. In Mitchell v. Ross (1984), 14 Ohio App.3d 75 a post-comparative negligence case, we held that: Summary judgment may be granted to defendants in a negligence suit where, after construing the undisputed evidence most strongly in favor of plaintiff, a reasonable person could only conclude that the contri- butory negligence of the plaintiff was greater that the combined negligence of the defen- dants. Id., paragraph two of the syllabus. 2 Klein's multiple listing sheet indicated the following: "Call lister for disclosure is a must." (Exhibit E, "Fact Sheet," Exhibit B, Klein Depo., Pages 11-14 & 19). - 7 - In Sidel v. Humphrey (1968), 13 Ohio St.2d 45, the Supreme Court held that: There is no duty to protect her from dangers which were known to her, or which were so obvious and apparent to her that she could reasonably be expected to discover them and protect herself against them. In sum, an occupier or owner of premises is under no duty to protect an invitee from dangers which are known to such invitee. In Jeswald v. Hut (1968), 15 Ohio St.2d 224, the Supreme Court of Ohio also stated that: "Darkness is always a warning of danger and for one's own protection it may not be disregarded." Id., paragraph three of the syllabus. Moreover, to establish a negligence claim a plaintiff must show an existence of a duty, a breach of this duty and injuries proximately resulting from that breach of duty. Strother v. Hutchinson (1981), 67 Ohio St.2d 282 In construing the undisputed evidence most strongly in favor of the appellant, reasonable minds can come but to one conclusion and that is that the darkness which enveloped the appellant as she descended the stairs was so obvious and apparent that she could reasonably have been expected to protect herself against it. Similarly, reasonable minds can come to but one conclusion and that is that appellant's decision to assume the risk of continuing to proceed in darkness constituted a contributory negligence which was greater than the alleged negligence of Asamoto and Klein and that such contributory negligence constituted the intervening and superseding negligence which proximately caused her injuries. - 8 - In light of appellant's admissions, reasonable minds cannot conclude that non-functioning lights proximately caused appellant's injuries. Such assertion ignores the operative facts of this case which clearly establish appellant's intervening and superseding negligence. It was appellant's disregard of and movement thru the 3 darkness which proximately caused her injuries. In Ricciardo v. Weber (Dec. 22, 1989), Licking App. No. CA 3452, cert. denied (1990), 50 Ohio St.3d 715 the Licking County Court of Appeals, without reversing a summary judgment granted in favor of appellee landlord, held that the trial court erred in finding that Ricciardo's step into an unlit lobby barred her action. We decline to apply Ricciardo as there is no evidence that the trial court held that appellant's contributory negligence constituted a bar to her action. We also decline to apply Ricciardo because it possesses no precedential authority, because it is fundamentally dissimilar to the facts of the instant case and because it can be distinguished for the following reasons: First, with respect to the limited facts of Ricciardo, it appears that Ricciardo had little or no opportunity to demonstrate 4 contributory negligence. Unlike the appellant, Ricciardo merely 3 With respect to proximate cause analysis, one cannot logically state that "but for" non-functioning lights, appellant would not have injured herself. However, one can logically state that "but for" appellant's decision to continue to proceed in darkness, she would not have injured herself. 4 Ricciardo, as the guest of a tenant was a licensee at the time she entered the apartment and injured herself. - 9 - stepped into an unlit apartment lobby and promptly fell down a flight of stairs when she tried to close the entrance door. Second, unlike the instant stairwell, the Ricciardo stairwell had little or no landing and was alleged to be in violation of the local building code as it lacked a hand rail. In contrast, the appellant entered the Asamoto residence safely and had ample time to make four contributorily negligent decisions prior to her fall. First, she decided to ignore the fact that the lights were not functioning. Second she decided to leave the safety of the illuminated and ample stairwell landing. Third she decided to proceed down an ever darkening stairway and fourth, she decided to step off of the stairway onto a basement floor which she admittedly could not see well. In addition, appellant presented no evidence to rebut Asamoto's proof that the stairway and basement had not been cited as being in violation of any 5 building codes. Accordingly, the trial court did not err in granting summary judgment in favor Asamoto and Klein. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN ACCEPTING DEFENDANTS AND THIRD- PARTY DEFENDANTS REPLY BRIEFS IN SUPPORT OF SUMMARY JUDGMENT. 5 A review of appellant's objection to Asamoto and Klein's reply briefs demonstrates no affidavit that she could present additional evidence on the issue of alleged building code violations. - 10 - In her second assignment of error, appellant claims that the trial court erred in accepting Asamoto's and Klein's reply briefs because such briefs failed to request leave for good cause shown pursuant to Cuyahoga County Local Rule 11D. A review of the Asamoto's reply brief demonstrates that it did request leave and indicated that it was submitted to address points raised in appellant's opposing brief. The purpose of local rule 11D is to prevent abuses in responsive pleading. We cannot say that Asamoto's single reply to appellant's brief in opposition constitutes an abuse of responsive pleading. Accordingly, the court's overruling of appellant's objection was not an abuse of 6 discretion. See, Ohio Bell Telephone v. Barrett (Apr. 30, 1987), Cuyahoga App. No. 53093, unreported. While appellant contends that she was prejudiced because she did not have an opportunity to file a reply to Asamoto's reply, a review of her objection fails to demonstrate any facts or affidavits to support her appellate contention that she had additional evidence and or argument to submit to the court prior to its award of summary judgment. Hence, appellant has failed to demonstrate error and has also failed to demonstrate prejudicial error. Her second assignment of error is overruled. 6 The record demonstrates that the court did not respond to appellant's objection prior to awarding summary judgment. However, when a trial court fails to rule upon a pre-trial motion, it may be presumed that the court overruled it. See, Newman v. Al Castrucci Ford Sales Inc. (1988), 54 Ohio App.3d 166. - 11 - The summary judgment of the trial court is affirmed. - 12 - It is ordered that appellee recover of appellant its 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. _________________________________ ANN DYKE, PRESIDING JUDGE _________________________________ JOSEPH J. NAHRA, JUDGE _________________________________ DIANE KARPINSKI, JUDGE, DISSENTS (SEE ATTACHED DISSENTING OPINION) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67917 : JOSEPHINE PURPERA : : : Plaintiff-Appellant : : DISSENTING -vs- : : OPINION JOYCE ASAMOTO, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 22, 1995 KARPINSKI, J., DISSENTING: I respectfully dissent from the majority's disposition of Josephine Purpera's first assignment of error. The majority opinion ignores significant facts, fails to view the evidence in the light most favorable to Purpera, and makes several conclusions which invade the province of the jury. Rothfuss v. Temple Co. (1973), 34 Ohio St.2d 176. This personal injury action arises out of a combination of inadequate lighting and a flooring pitfall in a residential basement. The majority relies on the alleged "darkness" of the premises to establish the following, viz.: (1) no duty to warn - 2 - Purpera existed since the condition of the premises was open and apparent, (2) Purpera's proceeding in the "darkness" constituted contributory negligence which outweighed any negligence by the other parties, and (3) no proximate cause existed since Purpera's own negligence intervened and superseded any negligence by the other parties. (Ante at p. 7.) However, the degree of "darkness" or illumination of the premises is a question of fact for the jury. Purpera testified that she and her partner Jack Goldman went to Asamoto's house in the afternoon after Goldman spoke with an employee at Dolores C. Knowlton, Inc. Purpera was not warned of the lighting or flooring condition of the premises. No lights were on in the house when they arrived with a prospective purchaser and the three toured the house without incident prior to the fall. The light at the top of the steps to the basement did not work, but Purpera testified she could see down the steps. (Depo at p. 21.) Purpera likewise stated she could see the walls when she arrived in the basement and she could see part, but not all, of the floor. (Depo at pp. 25, 29, 33.) Purpera repeatedly stated, contrary to the thrust of the majority opinion, that the basement was not "pitch black." (Depo at pp. 22, 23, 24.) Purpera reached to turn on a light in the basement and fell off the raised platform floor, which ended abruptly and was not guarded or otherwise marked in any manner--a significant and undisputed fact. - 3 - Duty to Warn of Defect The Ohio Supreme Court has recognized, contrary to the majority opinion, that the issue of whether a defect is sufficiently discernible to constitute an adequate warning of the danger is a question of fact for the jury. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 646. The Simmers Court cited Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5, which applied this principal in a case where the plaintiff drove, on a dark, misty, rainy night with his "lights on dim," into a twelve- foot by six-foot hole in the roadway. Whether the pitfall in the basement floor in this case was sufficiently discernible in the dimly lit basement is a question for the jury. Accord Case v. Norfolk & Western Ry. Co. (1988), 59 Ohio App.3d 11, 13, 15 n.5. Comparative Negligence The Ohio Supreme Court has likewise recognized, contrary to the majority opinion, that the existence and extent of comparative negligence ordinarily constitutes a question of fact for the jury. Simmers v. Bentley Constr. Co., supra. The fact that the injured person in Simmers admitted he was adjusting his watch band, and was not even looking where he was walking, before falling in the hole did not warrant summary judgment for defendant as a matter of law. The majority's reliance on the "step in the dark" rule to support its argument to the contrary is misplaced. The Ohio Supreme Court in Rothfuss, supra, reversed a judgment for a property owner which was based on this defense under similar circumstances when the plaintiff fell into an unguarded, unmarked - 4 - window well in a dimly or partially lit parking lot. The Rothfuss Court expressly recognized that the "step in the dark" rule applies only in cases of "total darkness" and not, as in this case, when the testimony indicates the premises were illuminated to some degree. Id. at 183-186. Purpera's testimony in this case is almost identical to the testimony quoted by the Supreme Court and found sufficient to raise a question of fact for the jury. The Rothfuss Court specifically rejected the majority's remaining contentions that plaintiff's "decision" to proceed in dim lighting or inability to establish a violation of the building codes warranted taking the case from a jury. The issues of (1) whether Purpera exercised ordinary care for her own safety, and (2) the degree to which her negligence, if any, exceeded that of the other parties under comparative negligence principles should be resolved by a jury. Reasonable minds are not required to find, contrary to the majority opinion, that Purpera's negligence was so extreme that it exceeded the combined negligence of the other parties as a matter of law. Case v. Norfolk & Western Ry. Co., supra at 13, 14; Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 39. Judge Milligan succinctly summarized these principles in Ricciardo v. Weber (Dec. 22, 1989), Licking App. No. CA-3452, unreported, a similar slip and fall case involving the "step in the dark" defense, as follows: The "step into the darkness" negligence per se doctrine loses most of its vitality in the context of comparative negligence. The cases cited by the appellees are all pre-comparative negligence and, in large part, - 5 - depend for the ultimate conclusion on the absolute bar of contributory negligence. We conclude that the trial court erred as a matter of law in concluding that the act of plaintiff- appellant, in entering the darkened area, constituted negligence as a matter of law barring her cause of action alleging negligence by the defendants. Logsdon v. Main- Nottingham Investment Co. (1956), 141 N.E.2d 216. The majority's attempt to distinguish Ricciardo, and the principles upon which it is based, ignores the court's duty to view the evidence in the light most favorable to Purpera and usurps the role of the jury in determining comparative negligence. Rothfuss v. Hamilton Masonic Temple Co., supra, syllabus paragraph two. Intervening/Superseding Causation The majority's final argument concerning intervening and/or superseding causation likewise does not warrant denying a jury trial in this case. First, none of the parties raised or argued this issue in the trial court. More importantly, however, the Ohio Supreme Court has repeatedly recognized that the issue of intervening or superseding cause constitutes a question of fact for the jury. Leibrech v. A. J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266, 269. This determination "involves a weighing of the evidence, and an application of the appropriate law to such facts, a function normally to be carried out by the trier of facts." Id. Whether an intervening act by plaintiff sufficiently breaks the causal connection between the defendant's negligence and plaintiff's injury depends upon whether the intervening cause was reasonably foreseeable by the defendant. A jury could reasonably find, contrary to the majority opinion, it was sufficiently - 6 - foreseeable that a real estate agent would walk into the dimly lit basement when showing the house to a prospective purchaser. The degree to which Purpera's conduct contributed to her injury is a question of fact for the jury. Accord Case v. Norfolk & Western Ry. Co., supra at 13, 14. When the evidence is viewed in the light most favorable to Purpera in accordance with the above-cited authority, this case presents genuine issues of material fact which should be resolved .