COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70714 JAMES T. McKENZIE, ET AL. : ACCELERATED DOCKET : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD MARLOWE, ET AL. : : Defendants-Appellees : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION DECEMBER 12, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 288626 JUDGMENT Reversed DATE OF JOURNALIZATION APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: DAVID H. DAVIES, ESQ. WILLIAM F. GIBSON, ESQ. Interstate Square I TIMOTHY T. BRICK, ESQ. Suite 300 Gallagher, Sharp, Fulton 4230 State Route 306 & Norman Willoughby, Ohio 44094-9275 Bulkley Bldg., Seventh Floor 1501 Euclid Avenue Cleveland, Ohio 44115 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Plaintiffs-appellants James and Terrilyn McKenzie appeal from an order of the trial court granting summary judgment to their landlords, defendants-appellees Richard and Noreen Marlowe, arising out of plaintiffs' claim that defendants negligently failed to repair faulty wiring which caused a fire at the rented condominium resulting in plaintiffs' damages. Plaintiffs maintain that they produced sufficient evidence of negligence to preclude summary judgment in defendants' favor. We agree and reverse for the reasons hereinafter stated. The McKenzies, as lessees, entered into a written lease on or about January 30, 1994, with the Marlowes, lessors, for a condominium in Willoughby, Ohio. Prior to change of possession, defendants had done some remodeling, which included the repair and relocation of electrical wiring on the property. On or about February 15, the McKenzies moved into the leased premises. The McKenzies occupied the premises for eight months without experiencing any major problems or requiring any significant repairs. However, on September 5, 1994, the McKenzies began to experience some electrical problems which caused them to become concerned. At about 8:30 p.m., they heard a loud bang which seemed to come from outside the dining room window. At about 11:30 p.m., they - 3 - again heard the bang which seemed to originate from the same undetermined location. As the McKenzies were getting ready for bed, Mr. McKenzie went upstairs to the bathroom, but came back downstairs because all of the lights on the second floor were out. He came back downstairs to where the circuit box was located, but when he flipped the switch, the power in the entire condominium went out, and would not come back on. He went back up to the bathroom and once again tried to turn on the light switch, however, it was stuck in place. While in the bathroom, both the McKenzies observed a pool of hot, melting black plastic on the carpet, and realized it had dripped from the exhaust fan in the wall. Mrs. McKenzie called the electric company and was told that someone would be sent out right away. Mr. Marlowe was also called and he was informed that they had a problem with the power and that there was plastic dripping from the fan in the bathroom. Mr. Marlowe came over about midnight. When Mr. Marlowe arrived, he went directly to the main circuit box outside the condominium unit. He did not have a key to the box so he unsuccessfully tried to pry it open with a crowbar. The servicemen came from the electric company while Mr. McKenzie and Mr. Marlowe were outside by the main circuit box. Mr. Marlowe instructed them to leave as he could not get into the circuit box. No decision was made about the electrical problem. Mr. Marlowe told Mr. McKenzie that he would send an electrician out in the morning. Marlowe never entered the premises to investigate the - 4 - problem in the upstairs bathroom or examine the pool of melting black plastic on the bathroom floor. The McKenzies went to bed about 1:00 a.m. without any power. At about 5:45 a.m., the McKenzies' three-week-old infant woke up to be fed. Mrs. McKenzie went to the bathroom in the darkness and felt hot air blowing on her face. She called her husband who brought a flashlight. They realized that there was a fire because the walls were hot and there were brown spots all over the walls. They quickly gathered the other four children who were asleep downstairs to escape the fire. Mrs. McKenzie called the fire department before evacuating the premises. Fire departments from several surrounding communities responded and fought the fire for more than two hours. The McKenzies lost almost all of their personal belongings as a result of the fire. Plaintiffs filed suit on April 28, 1995. Following discovery, defendants moved for summary judgment. The evidence in support of the motion revealed that the McKenzies did not personally know how the fire started. However, after the fire was extinguished, Mrs. McKenzie spoke with a member of the fire department who told her that "an electrical fire" had originated inside a wall by the dining room. Mrs. Mckenzie specifically testified: Q. I understand you have no personal knowledge how the fire started? A. Just what the fireman told me. The fire inspector took me through the house late that afternoon. * * * - 5 - Q. Did he [the fireman] say what caused the fire? A. He said it was an electrical fire. Q. Some faulty wiring? A. He didn't say. He just said it was an electrical fire. There was a putrid smell. He said that it was all the wires and it was an electrical fire. Q. There was some wires or something that caught on fire? Did he say it was something in the walls that you couldn't see? A. It was inside the walls. He said that it took several hours for the wires to burn through all inside the walls. Q. So the fire inspector never told you that the fire originated in the bathroom? A. No. He pointed out the area in the dining room. He said he determined that it started there because that is where the wooden beams were the most charred, and he was showing me how the beams on other areas that were burned weren't as badly charred as in this particular area. (Terrilyn McKenzie Depo. at 33-35). Mr. McKenzie admitted that he had no personal knowledge with respect to the cause of the fire in his answer to interrogatories, as follows: Q. Describe with specificity how the incident referred to in your complaint occurred. A. I have no personal knowledge of how the fire started. I have been told that the fire was caused by faulty wiring. (Ans. to Itg. 4.) - 6 - Mr. McKenzie also filed an affidavit in opposition to the motion for summary judgment which stated in pertinent part: Further affiant states that on the night of the fire he called the Defendant/Owner of the unit, Richard Marlowe, to come out and examine the premises. Further affiant states that the owner, although aware of electrical problems, did not enter the premises and further did not take action to allow an agent from the electric company, who was called by Plaintiff and on the scene, to access the main electrical switch. Further affiant states that the fire which destroyed the property was caused by faulty wiring and that the area of the apartment where the fire started had been worked on by the Defendant. Further affiant states that he observed the open wall and wiring that was being repaired or relocated by the Defendant prior to affiant moving into the premises. Further affiant states that the Defendant was notified prior to the destruction of property of unusual heat from the vent fan in the bathroom of the unit and did nothing to remedy the problem. On January 24, 1996, plaintiffs also filed a report from the Willoughby Fire Department, dated September 6, 1994, as a "supplemental exhibit" which disclosed that the ignition factor was "other electric failure"; equipment involved in ignition was a "switch, receptacle, outlet"; and the form of heat ignition was "spark from operating." The report was not signed, certified or attached to any affidavit. Defendants contended that plaintiffs could not prove that there was any negligence because defendants had no knowledge of a defective condition nor was there expert testimony as to what caused the fire. The trial court agreed and entered summary judgment for defendants because they failed to meet their burden of proof. This timely appeal ensued. - 7 - The plaintiffs' sole assignment of error states: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANTS WHEN IT GRANTED DEFENDANT- APPELLEES' MOTION FOR SUMMARY JUDGMENT. Under Civ.R. 56, summary judgment is proper when: (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 the party against whom the motion for summary judgment is made. State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. - 8 - In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. In order to establish a cause of action in negligence, plaintiff bears the burden of proving that (1) defendant owed a duty of reasonable care towards the plaintiff; (2) that the defendant breached its duty of reasonable care; and (3) that the plaintiff suffered injuries proximately caused by the breach. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285; Fischer v. Dairy Mart - 9 - Conv. Stores (1991), 77 Ohio App.3d 543, 551; Wilburn v. Cleveland Elec. Illum. Co. (1991), 74 Ohio App.3d 401, 406. The plaintiffs' essential claim was that defendants had a statutory duty to keep the electrical wiring on the leased premises in safe condition and in good repair; that they had notice that something was wrong at the property related to the electrical system; but failed to follow up and prevent the fire that occurred and caused plaintiffs' losses. Plaintiffs rely on R.C. 5321.04 which defines the obligations owed by the landlord to the tenant, as follows: (A) A landlord who is a party to a rental agreement shall do all of the following: * * * (2) Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable 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 him; The leading case on the application of this statute is Shroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20, 25, which held as follows: 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. *** - 10 - R.C. 5321.04 imposes duties on the landlord to make repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. Furthermore, the purpose of the statute is to protect persons using rented residential premises from injuries. A violation of a statute which sets forth specific duties constitutes negligence per se. However, in addition to negligence per se, proximate cause for the injuries sustained must be established. Also it must be shown 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. [Citations omitted]. Under the statute, the defendants had a statutory duty to maintain the premises in a fit and habitable condition, including maintaining the electrical wiring in good and safe working order. Defendants' failure to properly maintain and inspect the electrical system at the leased premises amounts to a breach of their statutory duty provided they had notice that there was a problem. Notice under R.C. 5321.04 may be constructive and need not specifically express the state of the defect with particularity beyond the scope of a layperson's knowledge of a faulty electrical system. Blakley v. Riley (Jan. 7, 1992), Franklin App. No. 91AP- 597, unreported. The Court in Blakley held as follows: In the present case, appellee had provided appellant with notice of the defect which was certainly constructive, and most likely actual. Appellee did not specifically ascertain that the fuse box was over-amperaged and convey that message to her landlord. As a layperson, she was not required to express the state of the defect with such particularity. Shroades calls only for reasonable attempts at notice. This standard applies to both the amount of effort and the specificity of the warning. *** Whether appellant - 11 - knew of the precise source of the hazards in the electrical system or not, appellee provided him with sufficient notice to satisfy the Shroades test and attach liability under R.C. 5321.04 Id. at 3. Defendants were put on notice of the defective condition when Mr. Marlowe was called to the condominium around midnight to investigate a problem with the electrical system before the fire broke out. When he could not get into the circuit box, rather than get to the heart of the problem, Mr. Marlowe sent the CEI crew from the electric company away, and told the McKenzies that he would send an electrician out in the morning. Obviously, he was aware of some defective condition which needed attention. He was also told of the hot plastic dripping from the fan in the bathroom, yet he failed to enter the premises to examine it. Notice of the defective condition was sufficient to meet the burden imposed by Shroades. Marlowe did not have to know that a fire was in progress or might result from the electrical failures of which he did have notice. In fact, had he investigated further by entering the premises or allowed the electric company to enter the premises, the fire might have been discovered earlier or averted altogether. Defendants argue, however, that there was no evidence to establish what caused the fire. However, we believe that there is sufficient circumstantial evidence here to suggest that the cause of the fire was electrical in origin in the area where defendants did remodeling and wiring before the McKenzies occupied the premises. In order for a plaintiff's suit to be submitted to a - 12 - jury, it is necessary that the plaintiff produce some evidence upon each element essential to establish liability or produce evidence of a fact upon which a reasonable inference may be predicated to support such an element. Strother, supra at 285; Putka v. First Catholic Slovak Union (1991), 75 Ohio App.3d 741, 747; Fiorella v. Ashland Oil, Inc. (1993), 92 Ohio App.3d 411, 418. As this Court in Duke v. Sanymetal Products Co. (1972), 31 Ohio App.2d 78, 80-81 held: *** the scope of the court's inquiry at this stage is narrowly confined to whether there is any genuine issue of material fact. The court cannot try any issues of fact, except insofar as it is required to view the inference to be drawn from the underlying facts in the light most favorable to the party opposing the motion. *** A genuine issue might *** arise where the facts presented in the moving papers are uncertain or indefinite; in other words, the picture that is painted in the moving papers either is clear, but incomplete, or is obscured by imprecise facts. Also, whether the establishment of the origin or cause of fire requires an expert, depends upon the facts and circumstances in each case. Fidelity & Guaranty Ins. Underwriters, Inc. v. Gary Douglas Electric, Inc. (1974), 48 Ohio App.3d 319, 322 Mrs. McKenzie's testimony established a chain of events which leads to the inference that the cause of the fire was electrical. She testified that earlier in the evening she and her husband heard loud banging sounds in the vicinity of the dining room. A little while later they experienced a loss of electricity and found that there was hot melting plastic dripping from their bathroom vent. Early the next morning they could feel heat emanating from the - 13 - walls and brown burn spots sprouting up all over the wallpaper. Construing all this evidence in plaintiffs' favor, the reasonable inference is that the fire was caused by an electrical problem. It is not necessary to resort to the hearsay evidence of the fire inspection to reach this conclusion. Defendants have produced no evidence which would point to any other condition causing the fire. We do agree that the Willoughby Fire Department Report, unsigned, uncertified and unauthenticated was not to be considered in evaluating the merits of the summary judgment motion. Green v. BF Goodrich Co. (1993), 85 Ohio App.3d 223, 228 ("Documents submitted in opposition to a motion for summary judgment which are not sworn, certified, or authenticated by affidavit have no evidentiary value and may not be considered by the court in deciding whether a genuine issue of material fact remains for trial"). In any event, there is sufficient evidence of disputed facts to preclude summary judgment in defendants' favor. Plaintiffs' sole assignment of error is sustained. Judgment reversed and remanded. - 14 - It is ordered that appellants recover of appellees their 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 Court of Common Pleas 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. JUDGE JAMES D. SWEENEY, PRESIDING JUDGE JUDGE PATRICIA A. BLACKMON JUDGE JAMES M. PORTER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .