Ohio Appellate Reports


Decision (12-26-2006) 2006-Ohio-6894 Geraldine McKenzie,
Individually and as Administrator of the Estate of Donald
G. Spearry, Deceased, Plaintiff-Appellant, v. FSF Beacon
Hill Associates, LLC et al., Defendants-Appellees. No.
05AP-1194 (C.P.C. No. 04CVC02-1531). Court of Appeals of
Ohio, Tenth District. Rendered on December 26, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] APPEAL from the Franklin County Court of
Common Pleas.

Rourke & Blumenthal, Robert P. Miller and Michael J.
Rourke, for appellant.

McCarthy, Lebit, Crystal & Liffman Co., L.P.A., and David
A. Schaefer, for appellees.



{¶ 1} Plaintiff-appellant, Geraldine McKenzie,
administrator of the Estate of Donald G. Spearry, appeals
from a judgment of the Franklin County Court of Common
Pleas granting summary judgment in favor of
defendants-appellees, FSF Beacon Hill Associates, LLC
(“FSF”), CRES Management, LLC (“CRES”), and Trinity
Property Consultants, LLC (“Trinity”). For the following
reasons, we affirm.

{¶ 2} On October 2, 2002, Spearry suffered serious
burns while he showered in his apartment at The Pines at
Creek’s Edge (“The Pines”). Spearry, who lived with his
sister, McKenzie, later told McKenzie that he had taken a
bath in the combination shower/bathtub, and then stood up
and turned on the shower to wash his hair. The water from
the shower burned Spearry’s face, and he fell back into the
bathtub. When McKenzie heard Spearry scream for help, she
rushed to the bathroom and found Spearry laying in the
bathtub with burns on his feet, scrotum, and buttocks.

{¶ 3} After a lengthy hospitalization, Spearry died.
Seeking recovery for Spearry’s injuries and death as well
as her own loss, McKenzie filed suit against FSF, the owner
of The Pines; CRES, the managing agent of The Pines from
September 1, 2001 to October 1, 2002; and Trinity, the
managing agent of The Pines from October 1, 2002 to the
present. In her complaint, McKenzie asserted claims for
negligence, alleging that defendants were liable because
they set the temperature of the water heater that supplied
the apartment at such a dangerously high level that the
shower water scalded Spearry in seconds.

{¶ 4} On June 15, 2005, defendants moved for summary
judgment and argued that McKenzie could not provide
sufficient evidence to create a question of fact as to
defendants’ negligence.[fn1] McKenzie disagreed and, in her
memorandum contra, pointed to evidence that she maintained
proved that defendants set the water heater to its highest
setting (denominated on the dial as “hot”) without
appreciating that, at that setting, the water heater would
produce 160 degree water. Citing the testimony of The
Pines’ maintenance supervisor, McKenzie asserted that
defendants knew that a water heater set on “hot” would emit
scalding water.

{¶ 5} In making her argument against summary
judgment, McKenzie relied solely upon two photographs to
establish the make and model of the water heater in
apartment 1D, where Spearry and McKenzie once lived.
McKenzie used the same photographs throughout the discovery
process. After the parties completed the summary judgment
briefing, a dispute arose as to the authenticity of the
photographs. Ultimately, McKenzie admitted that the
photographs did not, in fact, depict the water heater in
apartment 1D. Upon defendants’ motion, the trial court
struck the photographs from the record and did not consider
them in ruling on defendants’ summary judgment motion.

{¶ 6} On October 18, 2005, the trial court issued a
decision granting summary judgment in defendants’ favor.
The trial court reduced this decision to judgment on
October 31, 2005. McKenzie now appeals from the October 31,
2005 judgment entry.

{¶ 7} On appeal, McKenzie assigns the following

[1.] The trial court committed reversible error by
granting Defendants/Appellees FSF Beacon Hill Associates,
LLC, Trinity Property Consultants, LLC and C.R.E.S.
Management, LLC’s Motion for Summary Judgment on all of
Plaintiff/Appellant McKenzie’s claims.

[2.] The trial court committed reversible error by
granting Defendant/Appellee C.R.E.S. Management, LLC’s
separate Motion for Summary Judgment.

{¶ 8} Appellate review of summary judgment motions
is de novo. Helton v. Scioto Cty. Bd. Of Commrs. (1997),
123 Ohio App.3d 158, 162. “When reviewing a trial court’s
ruling on summary judgment, the court of appeals conducts
an independent review of the record and stands in the shoes
of the trial court.” Mergenthal v. Star Banc Corp. (1997),
122 Ohio App.3d 100, 103. Civ.R. 56(C) provides that summary
judgment may be granted when the moving party demonstrates
that: (1) there is no genuine issue of material fact; (2)
the moving party is entitled to judgment as a matter of
law; and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made. State
ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio
St.3d 181, 183.

{¶ 9} When seeking summary judgment on the ground
that the nonmoving party cannot prove its case, the moving
party bears the initial burden of informing the trial court
of the basis for the motion, and identifying those portions
of the record that demonstrate the absence of a genuine
issue of material fact on an essential element of the
nonmoving party’s claims. Dresher v. Burt (1996), 75 Ohio
St.3d 280, 293. The moving party does not discharge this
initial burden under Civ.R. 56 by simply making a
conclusory allegation that the nonmoving party has no
evidence to prove its case. Id.; Vahila v. Hall (1997), 77
Ohio St.3d 421, 429. Rather, the moving party must
affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the nonmoving party has no
evidence to support the nonmoving party’s claims. Dresher,
supra, at 293. If the moving party meets this initial
burden, then the non-moving party has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts
showing that there is a genuine issue for trial and, if the
non-movant does not so respond, summary judgment, if
appropriate, shall be entered against the non-moving party.

{¶ 10} By her first assignment of error, McKenzie
argues that a question of fact remains as to defendants’
negligence in setting the water heater at an unsafe
temperature. We disagree.

{¶ 11} McKenzie asserts defendants are negligent per
se because they violated R.C. 5321.04(A)(4), which requires
landlords to “[m]aintain 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.”
As this provision sets forth specific duties that are the
same under all circumstances and are imposed upon all
landlords, a violation of R.C. 5321.04(A)(4) constitutes
negligence per se. Sikora v. Wenzel (2000), 88 Ohio St.3d
493, 498; Shroades v. Rental Homes, Inc. (1981), 68 Ohio
St.2d 20, 25. In order to establish negligence per se, a
plaintiff must prove that the defendant failed to perform
its statutory duty.[fn2] Chambers v. St. Mary’s School
(1998), 82 Ohio St.3d 563, 565. Consequently, we must
examine the record for evidence that defendants failed to
perform their statutory duty to maintain the water heater
in “good and safe working order and condition.”

{¶ 12} Here, McKenzie claims that defendants
violated R.C. 5321.04(A)(4) when they set the water heater
in apartment 1D to “hot,” thus increasing the water
temperature to 160 degrees — an unsafe temperature.
The record is devoid of any direct evidence as to the
temperature setting of the water heater at the time of
Spearry’s injuries. McKenzie, however, argues that a
reasonable finder of fact could infer the setting from the
testimony of two maintenance technicians who worked at The
Pines. The first maintenance technician, Robert White,
testified that he personally set all the water heaters he
installed at The Pines to “hot.” White, however, did not
install the water heater in apartment 1D, so a reasonable
finder of fact could not infer the temperature setting of
that water heater from this testimony. Similarly, although
maintenance technician Robert Trail testified that he, too,
personally set water heaters to “hot,” there is no evidence
that Trail ever set the temperature of the water heater in
apartment 1D.

{¶ 13} Contrary to McKenzie’s allegations, both
White and Trail testified that setting water heaters to
“hot” was their personal practice and not an apartment-wide
policy. Therefore, no factual basis exists on which to
infer that all the water heaters at The Pines were set to

{¶ 14} Thus, McKenzie is left with White’s testimony
that he set the water heaters he installed to “hot” because
his one-time supervisor, Timothy McCain, told him to do
so.[fn3] However, in order to accept this testimony as
proof that the water heater in apartment 1D was set to
“hot,” a reasonable finder of fact would have to stack
inference upon inference. First, the finder of fact would
have to infer that McCain also told the other members of
the maintenance staff, at least four other technicians, to
set all water heaters to “hot.” Then, the finder of fact
would have to use this first inference as the sole basis on
which to infer that one of those other technicians set the
apartment 1D water heater to “hot” per McCain’s
instruction. A finder of fact is prohibited from drawing an
inference solely and entirely from another inference. Cole
v. Contract Framing, Inc., 162 Ohio App.3d 612,
2005-Ohio-4244, at ¶ 17. Consequently, White’s
testimony that McCain told him to set water heaters to
“hot” is not evidence that the water heater in apartment 1D
was set to “hot.”

{¶ 15} Moreover, even if McKenzie could establish
the temperature setting of the apartment 1D water heater as
“hot,” McKenzie failed to present any evidence as what
temperature of water would result from the “hot” setting.
McKenzie introduced two expert reports that stated that the
“hot,” or maximum, setting on the subject water heater would
cause the water to heat to 160 degrees. However, neither
expert was properly informed as to the make and model of
water heater at issue. McKenzie does not dispute that the
water heater in apartment 1D was different than what she
originally believed, and that she did not discover the
discrepancy until July 25, 2005. By that time, the experts
had both issued their reports, and both reports relied upon
erroneous information. Therefore, the record contains no
evidence as to the temperature the actual water heater
would reach when set to “hot.”

{¶ 16} Without evidence as to the temperature
setting or temperature range of the water heater in
apartment 1D, a reasonable finder of fact could only
speculate as to whether defendants failed to maintain the
water heater in “good and safe working order and condition.”
“`Mere speculation does not create a material issue of
fact.'” Sharp v. Andersons, Inc., Franklin App. No.
06AP-81, 2006-Ohio-4075, at ¶ 18, quoting Wike v.
Giant Eagle, Inc., Portage App. No. 2002-P-0049,
2003-Ohio-4034, at ¶ 32. Accordingly, we conclude
that the trial court properly granted summary judgment in
defendants’ favor, and we overrule McKenzie’s first
assignment of error.

{¶ 17} Given our ruling upon McKenzie’s first
assignment of error, her second assignment of error is

{¶ 18} For the foregoing reasons, we overrule
McKenzie’s first assignment of error and overrule as moot
McKenzie’s second assignment of error. Further, we affirm
the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

McGRATH and TRAVIS, JJ., concur.

[fn1] Six days later, defendants filed a “Supplemental
Motion for Summary Judgment” in which they set forth the
same argument and, in addition, contended that CRES was not
liable because its management of The Pines ended a day
before the accident.

[fn2] Liability for a violation of R.C. 5321.04(A)(4) can be
excused under certain circumstances. Sikora, supra, at 498.
This legal doctrine is not applicable here because McKenzie
cannot prove that defendants’ actions violated R.C.
5321.04(A)(4). Absent a violation of the relevant statute,
a defendant’s actions need not be excused.

[fn3] In contrast to White’s testimony, Trail stated that he
never talked with anyone, including McCain, about where to
set the temperature of a water heater. McCain testified
that he never told any of the maintenance technicians he
supervised to set water heaters at “hot.”