COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73220 GAIL ROBINSON, Administratrix, : etc., et al. : : JOURNAL ENTRY Plaintiff-Appellants : : AND vs. : : OPINION ANTONINO MOTTA : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 24, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-281549 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellants: SHAWN W. MAESTLE ALEC BEREZIN Dworken & Bernstein Co., LPA 55 Public Square, Suite 950 the Illuminating Building Cleveland, Ohio 44113 For Defendant-Appellee: JOSEPH R. TIRA ROBERT J. GERLACK Quandt, Giffels & Buck Co., LPA 800 Leader Building 526 Superior Avenue, E. Cleveland, Ohio 44114-1460 JUDGE TERRENCE O'DONNELL: -2- Gail Robinson, as Administratrix of the separate Estates of Ethel Briggs and Rita Scott, appeals from an order of the common pleas court granting summary judgment in favor of Antonino Motta in connection with her wrongful death action arising out of an apartment fire, contending that statutory and common law in Ohio impose a duty upon landlords to provide an auxiliary power system for hard-wired smoke detectors located inside apartment units. For the reasons which follow, we reject these contentions and affirm the order of summary judgment entered by the trial court. Following a severe storm which left the city of Mayfield Heights and the surrounding communities without power for several days, Ethel Briggs and Rita Scott left a candle burning in their apartment, number 607 at the Park Plaza Apartments, on the evening of July 30, 1993, when they retired for the night; tragically, their apartment caught fire, and because of the power outage, the hard-wired smoke detector inside their apartment failed to sound, and they died in that fire. Antonino Motta is a general partner of the partnership which owns the Park Plaza Apartments. In 1975, then Fire Chief Munthe of Mayfield Heights visited Motta and informed him that the city had passed a new ordinance which required him to install smoke detectors in the apartments, and referred Motta to a fire safety consultant, Carmen Campanella. Campanella advised Motta to install hard-wired smoke detectors instead of battery operated smoke detectors due to the danger of tenants removing batteries or failing to replace them regularly. At that time, hard-wired -3- detectors were the most expensive type available, and there were no auxiliary power systems on the market. Following their deaths, appellants brought suit against Motta, alleging negligence for failing to provide an auxiliary power system for the smoke detector, claiming both a statutory and common law duty to do so. Motta asserted counterclaims for contribution and indemnification, alleging that Briggs and Scott caused the fire by failing to extinguish the candle before retiring. Motta then moved for summary judgment on the claim of statutory negligence, and the court granted that motion; when Robinson appealed from this order, our court dismissed the appeal, because it did not constitute a final appealable order. Motta then moved for summary judgment on the common law negligence claim, and the court also granted that motion. Robinson, as Administratrix of the two estates, now appeals from the grant of summary judgment and presents two assignments of error for our review. The first states: I. A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER THE OHIO BASIC BUILDING CODE IS ONE OF THE APPLICABLE BUILDING CODES A LANDLORD MUST COMPLY WITH UNDER O.R.C. 5321.04(A). Robinson claims that Motta has a duty pursuant to the Ohio Basic Building Code to install an auxiliary power system for smoke detectors located within apartments. Motta contends the court properly granted summary judgment in his favor because the Ohio -4- Basic Building Code does not impose a duty upon him to install an auxiliary power system. The issue before us then concerns whether the court erred in granting summary judgment in favor of Motta finding that a landlord has no statutory duty to provide an auxiliary power system for smoke detectors located inside apartments. Our standard of review for a court's order granting summary judgment is guided by Civ.R. 56, which provides in relevant part: * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Regarding the law of negligence, the court stated in Anderson v. St. Francis-St. George Hospital, Inc. (1996), 77 Ohio St.3d 82, at 84, a negligence claim requires proof of the following elements: duty, breach of duty, causation, and damages. Further, as the court stated in Schroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20, at 25, a violation of a statute which sets forth specific duties constitutes negligence per se. Applicable to this case is R.C. 5321.04, which provides in relevant part: (A) A landlord who is a party to a rental agreement shall: (1) Comply with the requirements of all applicable building, housing, health, and safety codes which materially affect health and safety. Chapter 4101:2-89 of the Ohio Basic Building Code provides in relevant part: -5- (A) Each dwelling unit, apartment and condominium unit shall have at least one smoke detector installed in the immediate vicinity but outside of all sleeping rooms. Alarm signaling devices shall be clearly audible in all bedrooms within the dwelling unit, apartment and condominium unit when all intervening doors are closed. Attached to her brief in opposition to Motta's motion for summary judgment, Robinson offered an affidavit from Edward Swick, a certified planning examiner, who opined that the Ohio Basic Building Code, through its incorporation of the National Fire Protection Association guidelines, imposed a duty upon Motta to provide an auxiliary power system for the hard-wired smoke detectors installed inside the decendents' apartment. After a thorough review of the provisions of the Ohio Basic Building Code and the National Fire Protection Association guidelines, however, we are convinced that the requirement to provide an auxiliary backup system only pertains to smoke detectors located in hallways and common areas of the buildings, but not to areas located within individual apartment units. Thus, Robinson failed to demonstrate that Motta had a statutory duty to provide an auxiliary power system for the hard-wired smoke detectors installed inside the decedents' apartment; thus Robinson has failed to establish the first element of her prima facie case for negligence. Accordingly, Motta is entitled to judgment as a matter of law on this basis, and the court did not err in granting summary judgment in his favor. This assignment of error, is therefore, not well taken, and is overruled. Robinson's second assignment of error states: II. -6- A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER THE COMMON LAW AS WELL AS ACCEPTED INDUSTRY CUSTOM AND STANDARDS PLACE A DUTY ON THE APPELLEE TO INSTALL BATTERY BACKUP OR AUXILIARY POWERED SMOKE DETECTORS IN THE DECEDENT'S APARTMENT. Robinson here maintains that a landlord has a duty arising out of common law to install an auxiliary power system for smoke detectors located within apartments. Without addressing the issue of a duty arising at common law to install an auxiliary power system, Motta claims the court properly granted summary judgment in his favor because a landlord out of possession has common law immunity from tort liability arising out of conditions on the premises, and Robinson failed to establish any exception to this immunity. The issue before us, then, is whether the court erred in granting summary judgment in favor of Motta on the common law negligence claims. In Schroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20, the court explained at 24, that at common law a landlord out of possession is immune from tort liability for injuries sustained on the rented premises. There are exceptions to that immunity, however, as the court in Shump v. First Continental (1994), 71 Ohio St.3d 414, stated at 418: Some of the commonly accepted exceptions that give rise to landlord liability include the following: concealment or failure to disclose known, nonobvious latent defects; defective premises held open for public use; defective areas under the landlord's control; failure to perform a covenant to repair; breach of a statutory duty; and negligent performance of a contractual or statutory duty to repair. -7- In this case, although Robinson offered Swick's affidavit in support of Motta's common law duty to install an auxiliary power system, Robinson failed to establish an exception to Motta's common law immunity. Therefore, Motta is entitled to judgment as a matter of law on the common law negligence claims, and the court did not err in granting summary judgment in his favor. This assignment of error is therefore without merit and is overruled. Judgment affirmed. -8- It is ordered that appellee recover of appellant his 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. JOSEPH J. NAHRA, P.J., TIMOTHY E. McMONAGLE, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .