Pope, Blum & Associates, Mr. Kenneth A. Bauman, of Counsel, and Mr. Gerald T. Sunbury, for Plaintiff-Appellant
Porter, Wright, Morris & Arthur, Mr. James S. Oliphant, of Counsel, for Defendants-Appellees
STRAUSBAUGH, J., WHITESIDE and REILLY, JJ., concur.
This is an appeal by plaintiff from a judgment in the Franklin County Court of Common Pleas granting defendants' motion for a directed verdict.
The record indicates that the action arose out of a fall and the subsequent injury sustained by plaintiff on September 3, 1975, while descending the steps in front of her residence, which was a half of a double. The defendants are plaintiff's landlord. The plaintiff contends that the fall was caused by the negligence of defendants in failing to repair the deteriorating step. The plaintiff testified to using the step in question ten to fifteen times a day and that the steps had been in a deteriorated condition for six months prior to the accident. The accident at issue took place during a thunderstorm as plaintiff was leaving her home, barefoot and wearing shorts and a top. Plaintiff testified that when negotiating the step, she was not looking down at the deteriorated step, but, "probably straight ahead." (Tr-68.)
Besides the step in question, there were two other avenues of egress for the plaintiff. One was a rear entrance to plaintiff's apartment which she testified was too dark to see; the other was the adjoining half double's front steps, use of which appellant testified would have required crossing "the muddy and the soupy grass" and which plaintiff thought was improper since it was not her property. (Tr-52.)
At the close of the plaintiff's argument in the Common Pleas Court, the defendants made a motion for a directed verdict, which was sustained. The court based its decision on alternative grounds: 1) that the landlord did not owe plaintiff a duty to repair, and 2) that plaintiff was contributorily negligent or had assumed a known risk.
We shall first examine plaintiff's third assignment of error:
"The trial court erred in finding that the tenant of residential premises, who uses defective steps leading from her front door in a careful manner knowing that said steps are defective, is charged with contributory negligence as a matter of law."
The plaintiff contends that the testimony, when construed most strongly in her favor, at least raises the factual issue of her actions meeting the standard of ordinary care. We cannot agree. Reasonable minds could not differ that a person who knows of the deteriorated condition of a step would not attempt to negotiate that step with bare feet, in the middle of a thunderstorm, without making sure she looked where she was stepping. Consequently, the plaintiff's third assignment of error is overruled.
Our decision that plaintiff, as a matter of law, negligently contributed to her injury bars her from recovery. Fogle v. Shaffer (1958), 167 Ohio St. 353. As a result, even if the remaining assignments of error are sustained, they are not prejudicial and are therefore overruled.