COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74030 LAWRENCE ZASLOV : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION THE MAY DEPT. STORES CO. : : PER CURIAM : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 1, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-335091. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Dennis P. Murray, Esq. Silver & Associates 3421 Prospect Avenue Cleveland, OH 44115 For Defendant-Appellee: Roy A. Hulme, Esq. Michelle J. Sheehan, Esq. Rebecca F. Schlag, Esq. Reminger & Reminger Co., L.P.A. The 113 St. Clair Building Cleveland, OH 44114 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs and arguments of counsel. Plaintiff-appellant Lawrence Zaslov ( appellant ) appeals the decision of the Cuyahoga County Court of Common Pleas which granted summary judgment in favor of defendant-appellee May Department Stores Co. dba Kaufmanns Department Store ( appellee ). For the reasons stated below we reverse. Appellant initiated this action against appellee asserting that appellee's negligent maintenance of its parking lot was the proximate cause of injuries he sustained as a result of a fall which occurred when his bicycle hit a pothole in the parking lot. Appellee moved for and was granted summary judgment in its favor on the complaint. Appellant timely appeals and advances a single assignment of error for our review. I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Appellant, in reliance on Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, contends that summary judgment was improperly granted in favor of appellee because appellee had an affirmative duty both to maintain its parking lot in a reasonably safe condition and to warn him of latent defects. Specifically, appellant asserts that this pothole was not open and obvious in the dark; that appellee was responsible for insufficient lighting; -3- that appellee had both actual and constructive notice of the pothole; and that appellee's violation of University Heights Ordinance 1397.07(b)(2) constituted negligence per se. This court reviews the lower court's grant of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704. An appellate court applies the same test as a trial court which test is set forth in Civ.R. 56(C) which specifically provides that before summary judgment may be granted it must be determined 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. Moreover, 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; Dresher v. Burt (1996), 75 Ohio St.3d 280. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359. In accordance with Civ.R. 56(E), a nonmovant may not rest on the mere allegations or denials of his pleading 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. The nonmoving party must produce evidence on any issue for which that -4- party bears the burden of production at trial. Dresher, supra; Celotex, supra at 322. In order to sustain an action in negligence, a party must establish the three essential elements: duty, breach of the duty, and an injury proximately caused by the breach. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75. An owner or occupier has a duty to protect or warn an invitee from or against known or hidden dangers. Paschal v. Rite Aid Pharmacy (1985), 18 Ohio St.3d 203. However, a premises owner has 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. Sidle v. Humphrey (1968), 13 Ohio St.3d 45. The undisputed facts of this case demonstrate that on May 20, 1996, appellee was notified that it was in violation of University Heights Codified Ordinance section 1379.07(b) for numerous pot holes throughout the parking lot *** in need of proper repair. Appellant's complaint alleged that on May 29, 1996, at approximately 9:00 p.m., as a business invitee of appellee, he rode his bicycle into this parking lot, fell and was injured when the bicycle hit a three-foot wide, three-to-four-inch deep pothole. When we consider the facts of this case, we find appellant's reliance on Kubisak v. Rini's to be misplaced. In this matter, the defect encountered by appellant was, by his own description, a pothole approximately three feet in width and three and one-half inches in depth unlike the latent defect encountered by Mrs. -5- Kubisak in Rini's parking lot. A pothole of this size can be considered an open and obvious defect in the parking surface. Duty to warn arises where the defect is latent. Pascal, supra; Sidle, supra,paragraph one of the syllabus. Hence, duty to warn is inapplicable here where the defect is open and obvious. Further, we acknowledge that `[d]arkness' is always a warning of danger, and for one's own protection may not be disregarded. Central Publishing House of Reformed Church v. Flury, 25 Ohio App. 214, affirmed, 118 Ohio St.154, 160 N.E. 679. Jeswald v. Hutt (1968), 15 Ohio St.2d 224, 227. Appellee was under no obligation to appellant to light the parking area. See, Jeswald, id. at paragraph one of the syllabus. The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge. Hence, the obvious character of the condition is incompatible with negligence in maintaining it. If plaintiff happens to be hurt by the condition, he is barred from recovery by lack of defendant's negligence towards him, no matter how careful plaintiff himself may have been. Sidle, supra, 48; see, also, Booker v. Revco DS, Inc. (1996), 113 Ohio App. 540, 546. Based upon the analysis above, we do not find appellee negligent for failure to warn of a latent defect or negligent for failure to illuminate the parking surface. Where there is no negligence, i.e., breach of duty, the issue of proximate cause is never reached. Wicichowski v. Gladieux (1988), 54 Ohio App. 3d 177. -6- However, our analysis does not end here as appellant alternativelyargues that appellee was negligent per se because of its violation of the University Heights Codified Ordinance by which appellee was required to maintain its parking lot free of holes and to repair pot holes thereby making the surface level and smooth. Appellee, on the other hand, directs us to the recently decided authority of Chambers et al. v. St. Mary's School (1998), 82 Ohio St.3d 563, asserting in its supplemental brief that our Supreme Court held that violation of an ordinance is not negligence per se. (Emphasis added.) Appellee is simply wrong. The Chambers court determined that a violation of the Ohio Basic Building Code did not constitute negligence per se, holding that the violation of an administrative rule does not constitute negligence per se; finding, however, that such a violation of an administrative rule may be admissible as evidence of negligence. Id. at 568. In the matter sub judice, we are considering the violation of a legislative enactment as embodied in the University Heights Codified Ordinance, not the violation of an administrative rule as considered in Chambers. Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and -7- liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstancesof the case. Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, paragraph 3 at the syllabus. Where a legislative enactment imposes a specific duty upon a person for the safety and protection of others, the failure to observe that duty is negligence per se. Jaworowski v. Medical Radiation Consultants (1991), 71 Ohio App.3d 320, 329. Where, as here, a statute does not expressly provide for civil liability, the question whether a violation of the statute constitutes negligence per se depends on the enactment itself. Mussivand v. David (1989), 45 Ohio St.3d 314, 319. Where a specific requirement is made by statute and an absolute duty is imposed, no inquiry is to be made whether the defendant acted as a reasonably prudent person or exercised due care. Kehrer v. McKettrick (1964), 176 Ohio St. 192. Lack of reasonable care is presumed from the violation of the duty imposed by the legislative authority. Daniels v. Thistledown Racing Club, Inc. (1995), 103 Ohio App.3d 281, 287. Before the doctrine of negligence per se applies, one must find that the ordinance prescribes a specific act intending to benefit a person claiming under it. Beaver v. Zussman & Son Co. (1988), 47 Ohio App.3d 69, 71. Stephens v. A-Able Rents Co. (1995), 101 Ohio App.3d 20, 28. Section 1397.07 of the University Heights Codified Ordinance relating to the maintenance responsibilities for Commercial Structures provides in pertinent part: (a) Exterior Property Areas. No owner, agent or occupant of any premises shall -8- maintain or permit to be maintained at or on the exterior property areas of such premises any condition which deteriorates or debases the appearance of the neighborhood; or reduces property values in the neighborhood; or creates a fire, safety or health hazard; or which is a public nuisance; *** (b) Installation and Maintenance Standards for Parking Lots and Driveways Open to the Public. In addition to the standards set forth in subsection (a) hereof, the following standards shall apply to the installation, improvement or maintenance of parking lots and driveways which are generally open and available to the public: *** (2) All paved areas and surfaces of parking lots and driveways shall be maintained free of holes, loose materials such as stones or cinders or litter, and shall be free of scaling or pitting; repaired areas shall be made level and smooth and match in conformity and color with the material of adjacent areas. *** A fair reading of the ordinance indicates that it addresses both the appearance and the safety of exterior areas including parking lots in the community. The statute is specific in its directive that the paved areas are to be maintained free of holes with repaired areas to be made level and smooth. The record reveals that appellee received citations of violation of this ordinance indicating the potholes presented a hazard to pedestrians and motorists. We find that appellant, a cyclist using the parking lot, was a member of the class whom the ordinance seeks to protect. Appellee was in violation of the ordinance because of its failure to maintain the surface free of holes and to maintain the parking surface level and smooth. Appellant alleged the proximate cause of -9- his injuries was a fall sustained because of an unrepaired pothole. Accordingly, appellant has presented sufficient evidence to demonstrate appellee's negligence per se. Application of negligence per se in a tort action means that the plaintiff has conclusively established that the defendant breached the duty that he or she owed to the plaintiff. It is not a finding of liability per se because the plaintiff will have to prove proximate cause and damages. Pond v. Leslein (1995), 72 Ohio St.3d 50, 53. As such, summary judgment is improper against appellant where he, as the nonmoving party, produced definitive proof that appellee violated the ordinance and is negligent as a matter of law. However, in order to prevail on a theory of negligence per se, it must be shown that the injury was proximately caused by the violation of a safety statute. State Farm Ins Co. v. Wood (1989), 58 Ohio App.3d 11. Although appellee argues that appellant cannot recover because he assumed the risk and his contributory negligence in riding into an open and obvious pothole outweighs any negligence of appellee, such is not the current law in Ohio. Implied assumption of the risk and contributory negligence have merged into comparative negligence. Goldfuss v. Davidson (1977), 79 Ohio St.3d 116,127. See, also, R.C. 2315.19. From the record before us, we find that appellee was negligent per se for its violation of the ordinance enacted to promote the safety of the users of the parking areas and which imposed a specific duty upon appellee to maintain those areas free of holes -10- and to be level and smooth. Appellant, in his complaint, alleges he was injured when he rode his bicycle into a pothole. Appellant brought his claim sounding in negligence to which the defense of comparative negligence is applicable. See R.C. 2315.19. The pothole as described was so large it could be considered an open and obvious defect. The question of whether the contributory negligence of a plaintiff is the proximate cause of the injury is an issue for the jury to decide pursuant to the modern comparative negligence provisions of R.C. 2315.19(A)(1). Junge v. Brothers (1985), 16 Ohio St.3d 1, 4, OBR 254, 256, 475 N.E.2d 477, 480. Texler v. D.O. Summers Cleaners (1998), 81 Ohio St.3d 677, 681. Accordingly, a jury question remains and we find the trial court erred in granting summary judgment to appellee. Appellant's assignment of error is well taken. Judgment reversed. The matter is remanded for further proceedings consistent with this opinion. -11- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. TIMOTHY E. McMONAGLE, PRESIDING JUDGE JOHN T. PATTON, JUDGE LEO M. SPELLACY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .