[Cite as Davis v. Cuyahoga Metro. Hous. Auth., 2012-Ohio-3077.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97356

LAWANDA DAVIS, ET AL.

PLAINTIFFS-APPELLANTS 

vs.

CUYAHOGA METROPOLITAN 

HOUSING AUTHORITY

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Common Pleas Court 

Case No. CV-649853 

BEFORE: S. Gallagher, J., Jones, P.J., and Keough, J. 

RELEASED AND JOURNALIZED: July 5, 2012 
ATTORNEYS FOR APPELLANTS 

Sam A. Zingale 

700 Rockefeller Building 

614 Superior Avenue N.W. 

Cleveland, OH 44113

Keith E. Belkin 

20600 Chagrin Boulevard, #1111 

Shaker Heights, Ohio 44122-5334 

ATTORNEYS FOR APPELLEE 

Timothy A. Marcovy 

Michael S. Lewis 

Aubrey B. Willacy 

Willacy, LoPresti & Marcovy 

330 Western Reserve Building 

1468 West Ninth Street 

Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.: 

{¶1} Appellants, Lawanda Davis and her young child R.D., appeal the trial court’s 

decision granting summary judgment in favor of Cuyahoga Metropolitan Housing 

Authority (“CMHA”) on appellants’ claims. For the following reasons, we affirm the 

decision of the trial court. 

{¶2} Appellants moved into a CMHA-managed apartment at the end of March 

2006. Before that, CMHA repaired the non-operational furnace by replacing the draft 

motor, gas valve, and thermostat. CMHA’s maintenance technician, William Taylor, 

performed the repairs, but did not recall working on that particular furnace. CMHA 

provided the maintenance records indicating Taylor performed the work. Taylor 

testified that after completing the repairs, his normal practice was to cycle the furnace 

through a progression to ensure the repairs were effective and proper. By all accounts, 

the furnace was operational when the appellants moved into the apartment. The furnace 

was located inside a closet of the home, although Lawanda did not know if the closet door 

was locked. 

{¶3} After moving into the apartment, Lawanda noticed a smell emanating from 

the furnace every time she turned it on. She ran the furnace briefly and shut it off once 

the smell was detected. Lawanda never requested to have the furnace serviced. An 

unidentified CMHA maintenance employee was called to the apartment to fix some 
blinds and the stove sometime between April and October 2006. Lawanda inquired 

about the smell from the furnace and was told by the unidentified employee that the 

problem was most likely dirt in the vents. She attempted to sweep the vents. 

{¶4} On October 17, 2006, appellants returned home and started the furnace. 

Lawanda let the furnace run despite the smell. After about an hour, R.D. began crying. 

After a brief moment of Lawanda trying to diagnose him, R.D. passed out. Lawanda 

removed him from the apartment, called for help, and emergency personnel responded. 

An unidentified fireman told Lawanda that the carbon monoxide level in the apartment 

was three times the normal level. According to Lawanda, R.D. underwent treatment for 

carbon monoxide exposure. 

{¶5} Lawanda’s and Taylor’s depositions were included with CMHA’s motion 

for summary judgment. Taylor stated that the smell Lawanda encountered from the 

vents could not be carbon monoxide. Carbon monoxide, a natural byproduct of burning 

natural gas for heat, is odorless. Taylor claimed that the most likely cause of the smell 

was dirt or dust in the air ducts. Taylor could not remember whether the furnace needed 

repairs after the October 17 incident, but stated that the most common causes of carbon 

monoxide exhausting into the home from a furnace is a misaligned flue pipe or a 

significant blockage in the chimney, like a dead animal. Nothing affirmatively indicates 

whether the furnace was serviced after October 17, 2006. Taylor was not responsible for 

maintaining the chimney, and appellants’ furnace shared a common chimney with several 

other apartments. 
{¶6} In their complaint, appellants advanced several causes of action, including a 

claim for negligence and negligence per se pursuant to R.C. 5321.04(A)(4). Both claims 

were based on the failure of CMHA to properly maintain or repair the furnace, which was 

the alleged source of the elevated carbon monoxide levels. Appellants’ complaint also 

included a claim based on CMHA’s failure to provide a carbon monoxide detector. 

{¶7} The trial court granted CMHA’s motion for summary judgment upon all 

claims. CMHA, in pertinent part, argued that appellants failed to produce expert 

testimony establishing that the furnace was defective or was the cause of the elevated 

carbon monoxide levels. Appellants timely appealed the trial court’s decision, raising 

three assignments of error, all of which attack the trial court’s summary judgment 

decision regarding appellants’ negligence and negligence per se claims. For the 

following reasons, appellants’ assignments of error are without merit. 

{¶8} Appellate review of summary judgment is de novo, governed by the 

standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 

833 N.E.2d 712, ¶ 8. We afford no deference to the trial court’s decision and 

independently review the record to determine whether summary judgment is appropriate. 

Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th 

Dist.). Under Civ.R. 56(C), summary judgment is proper when the moving party 

establishes that 

(1) no genuine issue of any material fact remains, (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 construing the 

evidence most strongly in favor of the nonmoving party, that conclusion is 
adverse to the party against whom the motion for summary judgment is 

made. 

State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 

N.E.2d 832, ¶ 9, citing Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 

267 (1977). While a party requesting summary judgment bears the initial burden to 

show the basis of the motion, once the moving party satisfies this burden of production, 

the nonmoving party must offer specific facts, using the evidence allowed under Civ.R. 

56(C), demonstrating a genuine issue for trial. Dresher v. Burt, 75 Ohio St.3d 280, 

293-294, 662 N.E.2d 264 (1996). 

{¶9} In order to defeat a properly supported motion for summary judgment on a 

negligence claim, the nonmoving party must establish that a genuine issue of material fact 

remains as to whether the defendant owed a duty of care, breached that duty, and 

proximately caused the plaintiff’s injury. Texler v. D.O. Summers Cleaners & Shirt 

Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998). In the alternative, 

negligence per se is “a violation of a specific requirement of law or ordinance, the only 

fact for determination by the jury being the commission or omission of the specific act 

inhibited or required.” Sabitov v. Graines, 177 Ohio App.3d 451, 2008-Ohio-3795, 894 

N.E.2d 1310 (8th Dist.), citing Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565, 

697 N.E.2d 198 (1998). In the current case, CMHA’s alleged omission was the failure 

to maintain the furnace in violation of R.C. 5321.04(A)(4). Thus, under either the 

negligence or negligence per se claims, appellants needed to demonstrate the furnace was 

the cause of the carbon monoxide emissions based on CMHA’s failure to maintain the 
furnace or CMHA’s breaching its duty by not discovering and remedying a defect with 

the furnace system. It is undisputed that CMHA was responsible for maintaining the 

furnace. 

{¶10} CMHA argued that appellants failed to proffer expert testimony establishing 

the furnace caused the carbon monoxide emissions or was in such a condition to cause the 

elevated carbon monoxide levels in appellants’ home. The only expert deposed was 

Taylor, CMHA’s maintenance technician. Taylor stated that the only way a furnace can 

cause elevated carbon monoxide levels is through a misaligned flue pipe or chimney 

blockage, but he never testified that either condition existed with appellants’ furnace. 

CMHA satisfied its burden of production. CMHA demonstrated the absence of 

evidence demonstrating the furnace was in a condition of disrepair or even the cause of 

the elevated carbon monoxide levels. 

{¶11} Appellants claimed, in response, that the furnace was the “only 

instrumentality capable of producing and emitting the carbon monoxide” appellants 

encountered. Appellants did not support that assertion with any evidence. Because 

CMHA satisfied its burden, demonstrating no genuine issue of material fact, appellants 

must offer specific facts, using the evidence allowed under Civ.R. 56(C), demonstrating a 

genuine issue for trial. Dresher, 75 Ohio St.3d 280, 293-294, 662 N.E.2d 264. 

{¶12} Appellants failed to demonstrate that CMHA breached its duty or failed to 

maintain the furnace. Lawanda’s testimony, setting aside the hearsay issues, merely 

demonstrated that elevated levels of carbon monoxide were detected after R.D. passed 
out. No evidence established that the furnace was the source. In addition, Lawanda’s 

testimony about the smell from the vents did not demonstrate a defective condition. 

Taylor, who appellants qualified as an expert, stated that carbon monoxide is odorless and 

the smell from the furnace was unrelated to the elevated carbon monoxide levels. 

Nothing in the record contradicts this testimony. Thus, appellants never demonstrated 

that the furnace caused the elevated carbon monoxide levels because of CMHA’s failure 

to maintain the furnace. 

{¶13} Appellants’ reliance on the sequence of events — Lawanda turning on the 

furnace an hour prior to R.D. exhibiting symptoms — to establish a breach of duty or 

omission on CMHA’s part is unavailing. However unfortunate the outcome, appellants 

cannot rely on the inference that CMHA breached its duty or failed to act as to cause, or 

allow, the furnace to exhaust carbon monoxide into the home based on the sequence of 

events leading to R.D.’s exposure. In order to reach the conclusion that CMHA 

breached its duty or failed to otherwise act, the inference, that the furnace caused the 

elevated levels of carbon monoxide based on the timing of R.D.’s exposure, must support 

another inference, that the cause of the furnace malfunction was CMHA’s failure to act. 

This court has consistently held: 

“For the purpose of supporting a proposition, it is not permissible to draw 

an inference from a deduction which is itself purely speculative and 

unsupported by an established fact. Where an inference not supported by or 

drawn from a proven or known fact is indulged, and is then used as a basis 

for another inference, neither inference has probative value. Such a 

process may be described as drawing an inference from an inference, and is 

not allowable. At the beginning of every line of legitimate inferences 

there must be a fact, known or proved.” 
Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 329, 332, 130 N.E.2d 820 (1955), 

quoting Indian Creek Coal & Mining Co. v. Calvert, 68 Ind.App. 474, 119 N.E. 519, 120 

N.E. 709 (2d Div.1918). 

{¶14} In the alternative, appellants argue that the doctrine of res ipsa loquitur 

supplants their need to establish liability upon direct evidence. “Res ipsa loquitur is an 

evidentiary rule that permits, but does not require, a jury to draw an inference of 

negligence from circumstantial evidence.” Estate of Hall v. Akron Gen. Med. Ctr., 125 

Ohio St.3d 300, 2010-Ohio-1041, 927 N.E.2d 1112, ¶ 16, citing Fink v. New York Cent. 

RR. Co., 144 Ohio St. 1, 56 N.E.2d 456 (1944), paragraph two of the syllabus. The 

doctrine of res ipsa loquitur applies if 

(1) the instrumentality causing the injury was, at the time of the injury, or at 

the time of the creation of the condition causing the injury, under the 

exclusive management and control of the defendant; and (2) the injury 

occurred under such circumstances that in the ordinary course of events it 

would not have occurred if ordinary care had been observed. 

(Emphasis added.) Estate of Hall at ¶ 27, citing Hake v. George Wiedemann Brewing 

Co., 23 Ohio St.2d 65, 66-67, 262 N.E.2d 703 (1970). 

{¶15} Appellants rely on the fact that CMHA is exclusively responsible for 

maintaining the furnace to satisfy the first prong of the res ipsa loquitur analysis. 

Appellants’ reliance is misplaced. Being responsible for the maintenance of the furnace 

alone does not establish exclusive control over the instrumentality causing the injury. 

See Hickey v. Otis Elevator Co., 163 Ohio App.3d 765, 2005-Ohio-4279, 840 N.E.2d 637, 

¶ 27 (10th Dist.). The furnace was located inside the appellants’ home, and there is no 
evidence that CMHA limited appellants’ access to the furnace. The undisputed evidence 

demonstrated that CMHA did not retain exclusive control over the furnace, only exclusive 

management. Under these circumstances, the doctrine of res ipsa loquitur is 

inapplicable. 

{¶16} Construing the facts in a light most favorable to appellants, we find that no 

genuine issue of material fact existed. There was no evidence demonstrating that 

CMHA breached its duty or failed to maintain the furnace, and the res ipsa loquitur 

doctrine cannot be applied to this situation where the appellants have not established that 

CMHA had exclusive control over the furnace. Upon a thorough review of the record, 

CMHA was entitled to judgment as a matter of law, and accordingly, the trial court did 

not err in granting summary judgment in favor of CMHA. Appellants’ three 

assignments of error are overruled. 

{¶17} The decision of the trial court is affirmed. 

It is ordered that appellee recover from appellants 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. 

SEAN C. GALLAGHER, JUDGE 
LARRY A. JONES, SR., P.J., and 

KATHLEEN A. KEOUGH, J., CONCUR