COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73668 DWAYNE HOUSTON : : Plaintiff-Appellant : : ACCELERATED DOCKET : -vs- : JOURNAL ENTRY : AND BERTHA FISCIAK : OPINION : Defendant-Appellee : PER CURIAM : : : DATE OF ANNOUNCEMENT : SEPTEMBER 3, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. : CV-318346 Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Dale R. Friedland, Esq. 55 Public Square Suite 1750 Cleveland, Ohio 44113-1901 For defendant-appellee: Denise B. Workum, Esq. 410 Lakeside Place 323 Lakeside Avenue West Cleveland, Ohio 44113 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc. App.R. 25, the record from the -2- Cuyahoga County Court Of Common Pleas, oral argument and the briefs of counsel. Dwayne Houston, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General Division, Case No. CV-318346, in which the trial court granted summary judgment in favor of Bertha Fisciak, defendant-appellee, on plaintiff-appellant's personal injury cause of action. Plaintiff- appellant assigns one error for this court's review. Plaintiff-appellant's appeal is not well taken. Plaintiff-appellant was employed by LaSalle Interiors as a furniture delivery man. On March 7, 1996, plaintiff-appellant and a co-worker, Melvin Berge, delivered a television armoire to defendant-appellee's home at 14650 Windsor Castle, Strongsville, Ohio. The armoire was approximately five feet tall, two feet wide and weighed approximately ninety pounds. Defendant-appellee directed plaintiff-appellant and Mr. Berge to bring the armoire into the house through the garage door. Mr. Berge was holding the top of the armoire backing into the home and plaintiff-appellant carried the bottom of the armoire facing forward. In order to enter the home through the garage door, plaintiff- appellant and Mr. Berge had to traverse a single step located at the foot of the doorway. Mr. Berge walked up the garage step and into the home. As plaintiff-appellant attempted to enter the home, the garage step allegedly came loose from the house causing plaintiff-appellant to fall injuring his back and right wrist. -3- At the time of the incident, defendant-appellee was standing inside the doorway next to Mr. Berge. Defendant-appellee maintained that plaintiff-appellant dropped the armoire on the step causing the step to come loose from the wall. The home was built in 1992 for defendant-appellee. The step in question was the original step built with the home. Defendant- appellee has been the only owner of the property. On November 7, 1996, plaintiff-appellant filed suit against defendant-appellee alleging that the step in question was improperly attached to the wall in such a way as to cause his injuries. Plaintiff-appellant alleged further that defendant- appellee maliciously and intentionally denied that the incident occurred causing plaintiff-appellant great anxiety and distress. On September 22, 1997, defendant-appellee filed a motion for summary judgment in which she maintained that she did not breach a duty of care to plaintiff-appellant since she had no knowledge of any alleged defect on the step leading from her garage into her home. Defendant-appellee maintained further that plaintiff- appellant's allegations failed to meet the requirements of a punitive damages claim. Plaintiff-appellant filed a brief in opposition to defendant- appellee's motion for summary judgment on October 10, 1997. Attached to the brief in opposition as an exhibit was the report of Mr. Richard Peter Kraly, a registered architect, who maintained that the step in question was improperly built an -4- d did not comply with the legal requirements of state housing codes adopted by the City of Strongsville, where the house is located. Mr. Kraly maintained further that, had the step been properly constructed initially, the injury to plaintiff-appellant might not have taken place. On December 2, 1997, the trial court granted defendant- appellee's motion for summary judgment without opinion. On December 11, 1997, plaintiff-appellant filed a timely notice of appeal from the judgment of the trial court. On appeal, plaintiff-appellant's sole assignment of error states: WHETHER THE TRIAL COURT ERRED IN GRANTING A MOTION FOR SUMMARY JUDGMENT WHEN THERE WAS EVIDENCE OF A CLEAR FAILURE OF THE DEFENDANT PROPERTY OWNER TO CONSTRUCT A STEP IN ACCORDANCE WITH A BUILDING CODE PROVISION, RESULTING IN A DEFECT WHICH PROXIMATELY CAUSED INJURY TO THE PLAINTIFF. Plaintiff-appellant maintains, through his sole assignment of error, that the trial court improperly granted summary judgment in favor of defendant-appellee. Specifically, plaintiff-appellant argues that, since the garage stair upon which he was injured did not conform to existing state and local building codes and defendant-appellee was responsible for the construction, defendant- appellee was arguably liable for his injuries. Plaintiff-appellant maintains further that, at the very least, a genuine issue of material fact exists as to whether defendant-appellee should have inspected the stair and discovered the alleged design flaw. The standard for granting a motion for summary judgment is set forth in Civ.R. 56(C). In applying this rule, the Ohio Supreme -5- Court has consistently held that, before such a motion can be granted, the moving party must show that: (1) there is no genuine issue of fact; (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 non-moving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383; Welco Industries, Inc. v. Applied Cas. (1993), 67 Ohio St.3d 344; Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, syllabus. The non-movant must also present specific facts and may not merely rely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio St.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court discussed the standard to be applied when reviewing motions for summary judgment. The court stated: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for -6- summary judgment. See, e.g., Civ.R. 56 (A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. at 298. The court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. Plaintiff-appellant was clearly a business invitee, an individual who, by express or implied invitation, comes upon the premises of another for some purpose which is beneficial to the owner. Light v. Ohio University (1986), 28 Ohio St.3d 66, 68. Accordingly, defendant-appellee owed plaintiff-appellant a duty of ordinary care to maintain the premises in a reasonably safe condition so plaintiff-appellant was not unnecessarily and unreasonably exposed to a dangerous condition. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. Such duty of care includes an obligation on the part of a defendant-appellee to warn invitees of latent or concealed defects of which defendant-appellee had or should have had knowledge. McLaughlin v. Ohio Veterans' Children's Home (1987), 37 Ohio App.3d 136. Davenport v. M/I Schottenstein Homes, Inc. (1993), 96 Ohio App.3d 237, 240. -7- In the case herein, a review of the record from the trial court demonstrates that defendant-appellee had no knowledge of the alleged defective condition of the garage stair. Evidence was presented through defendant-appellee's deposition testimony to show that, until the date in question, the stair had not caused any problem even though it had been used a number of times to move various large items in and out of defendant-appellee's home. In addition, the allegation that the stair was constructed in violation of state and local building codes does not, as plaintiff- appellant maintains, establish defendant-appellee's liability for his injuries given the lack of any noticeable defect since defendant-appellee moved into the home in 1992. Under the factual scenario presented in this case, this court cannot now say that the trial court erred in entering summary judgment in favor of defendant-appellee where plaintiff-appellant failed to adequately demonstrate a breach of the duty owed to a business invitee. Parrella v. Miller's Dining Room (June 22, 1989), Cuyahoga App. No. 55136, unreported. Accordingly, plaintiff-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -8- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. JAMES M. PORTER, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE MICHAEL J. CORRIGAN, JUDGE 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 .