[Cite as Johnson v. Cincinnati Metro. Hous. Auth., 2022-Ohio-26.] 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

TAKEITHA JOHNSON, 

 Plaintiff-Appellee, 

 vs. 

CINCINNATI METROPOLITAN 

HOUSING AUTHORITY, 

 Defendant-Appellant. 

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: 

: 

APPEAL NO. C-210240 

TRIAL NO. A-2000012 

 

 O P I N I O N. 

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

 Remanded 

Date of Judgment Entry on Appeal: January 7, 2022 

 

O’Connor, Acciani & Levy, LPA, and Elizabeth L. Acciani, for Plaintiff-Appellee, 

Adams Law, PLLC, Jeffrey C. Mando and Daniel E. Linneman, for DefendantAppellant. 
OHIO FIRST DISTRICT COURT OF APPEALS

2 

ZAYAS, Presiding Judge. 

{¶1} Defendant-appellee Cincinnati Metropolitan Housing Authority 

(“CMHA”) brings this appeal to challenge the trial court’s denial of summary 

judgment on the issue of immunity under R.C. Chapter 2744. For the following 

reasons, we affirm the judgment of the trial court in part, reverse the judgment of the 

trial court in part, and remand the cause for further proceedings. 

Procedural History 

{¶2} On January 2, 2020, plaintiff-appellee Takeitha Johnson filed a 

complaint against CMHA, alleging causes of action for negligence, breach of duty 

under R.C. 5321.04, and breach of the implied warranty of habitability. CMHA 

timely answered the complaint. 

{¶3} CMHA filed a motion for summary judgment on October 9, 2020, 

arguing that it was entitled to immunity under R.C. Chapter 2744. Johnson filed a 

response in opposition to the motion for summary judgment, asserting that the 

exception to immunity contained in R.C. 2744.02(B)(4) was applicable in this case. 

A deposition of Johnson was attached to CMHA’s reply in support of its motion for 

summary judgment. 

{¶4} On March 25, 2021, the trial court denied CMHA’s motion for 

summary judgment, finding that a genuine issue of material fact existed as to 

whether CMHA negligently caused a physical defect on its grounds or buildings 

under R.C. 2744.02(B)(4). Additionally, the trial court found that “the question of 

whether CMHA breached their statutory duty to repair the non-slip mat is for a jury.” 

CMHA timely filed a notice of appeal. 

 
OHIO FIRST DISTRICT COURT OF APPEALS

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Factual Background 

Depositional Testimony of Takeitha Johnson 

{¶5} Johnson began living at 523 Hickory Street (“the premises”) in 2012. 

The premises is a two-story, two-bedroom studio house. On January 6, 2018, 

Johnson fell when heading down the stairs because a “rubber mat” on the stairs was 

“not fixed” or not in the place where it was supposed to be. The staircase has two 

flights, and Johnson fell from the top of the stairs to a landing in the middle. After 

she fell, her daughter called 911. Johnson sustained injuries to her wrist, arm, lip, 

and knee as a result of the fall. She underwent multiple surgeries on her left arm and 

wrist. 

{¶6} The mat was on a step at the top of the stairs. Johnson testified that 

someone would have to step on the mat to realize there was an issue. Johnson knew 

there was an issue with the mat from walking on it every day. She testified that the 

mat would “shift” when she would step on it. When the mat would shift, she would 

push it back in place with her hands and her leg. She did this frequently. She walked 

through this area multiple times a day. 

{¶7} Johnson informed CMHA there was an issue with the mat during an 

inspection in March or April of 2017. The CMHA representative she spoke to took a 

picture of the step on an iPad and put in a work order. After the inspection, Ms. 

Ferguson from CMHA called Johnson and asked if any repairs had been made and 

Johnson responded that no repairs had been made. Ms. Ferguson told Johnson to 

give her about two weeks and she would send someone to fix it. No one came to 

make the repairs. Johnson believed this phone call was in November. No repairs 

were made to the step between the inspection and her fall. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶8} Johnson testified that she did not know how the mat was supposed to 

be secured to the steps. At the time that she was reporting the issue to CMHA, the 

mat was loose, but not disconnected from the step. Some areas of the mat were still 

connected. Johnson did not know if this was from glue or nails. She never tried to 

remove the mat from the step because she was “not allowed.” She felt the step would 

have been safer with the mat removed. CMHA fixed the mat after her fall. 

Law and Analysis 

{¶9} CMHA raises three assignments of error for our review, arguing that 

the trial court erred in denying summary judgment on the issue of immunity for each 

of Johnson’s three causes of action. We review the denial of sovereign immunity and 

the trial court’s ruling on a motion for summary judgment de novo. Frank v. 

Southwest Ohio Regional Transit Auth., 1st Dist. Hamilton No. C-200015, 2020-

Ohio-5497, ¶ 11. “Summary judgment is appropriate only when the following have 

been established: (1) that there is no genuine issue as to any material fact; (2) that 

the moving party is entitled to judgment as a matter of law; and (3) that reasonable 

minds could come to only one conclusion, and that conclusion is adverse to the 

nonmoving party.” Folmer v. Meigs Cty. Commrs., 4th Dist. Meigs No. 16CA17, 

2018-Ohio-31, ¶ 20. 

{¶10} “The Political Subdivision Tort Liability Act (“Act”), as codified in R.C. 

Chapter 2744, establishes governmental immunity for political subdivisions and 

their employees.” Frank at ¶ 13. “The Act ‘requires a three-tiered analysis to 

determine whether a political subdivision should be allocated immunity from civil 

liability.’ ” Id., quoting Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 

451, 2002-Ohio-6718, 780 N.E.2d 543, ¶ 10. “ ‘The first tier is the general rule that a 

political subdivision is immune from liability incurred in performing either a 
OHIO FIRST DISTRICT COURT OF APPEALS

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governmental or a proprietary function.’ ” Id., quoting Anderson v. Massillon, 5th 

Dist. Stark No. 2013CA00144, 2014-Ohio-2516, ¶ 35; R.C. 2744.02(A)(1). “However, 

political-subdivision immunity is not absolute.” Id., citing R.C. 2744.02(B). “ ‘The 

second tier of the analysis requires a court to determine whether any of the five listed 

exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political 

subdivision to liability.’ ” Id., quoting Anderson at ¶ 35. “ ‘If any of the exceptions to 

immunity do apply, and if no defense in that section applies to negate the liability of 

the political subdivision under that section, then the third tier of the analysis 

requires an assessment of whether any defenses in R.C. 2744.03 apply to reinstate 

immunity.’ ” Id., quoting Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 

N.E.2d 954, ¶ 15. 

{¶11} Under the first tier, a public housing authority “fits neatly within the 

definition of ‘political subdivision.’ ” Torrance v. Cincinnati Metro. Hous. Auth., 1st 

Dist. Hamilton No. C-081292, 2010-Ohio-1330, ¶ 14, citing R.C. 3735.50. There is 

also “no question that CMHA performs a governmental function by operating a 

public housing authority.” Dornal v. Cincinnati Metro. Hous. Auth., 1st Dist. 

Hamilton No. C-100172, 2010-Ohio-6236, ¶ 8, citing Moore v. Lorain Metro. Hous. 

Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606, syllabus. Therefore, 

under the first tier, CMHA is entitled to immunity under R.C. 2744.02(A)(1) if no 

exception applies. The parties do not dispute this issue. Accordingly, our focus is on 

the second tier and whether any of the exceptions in R.C. 2744.02(B) are applicable. 

{¶12} The possible exceptions in R.C. 2744.02(B) are: 

(1) Except as otherwise provided in this division, political 

subdivisions are liable for injury, death, or loss to person or property 

caused by the negligent operation of any motor vehicle by their 
OHIO FIRST DISTRICT COURT OF APPEALS

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employees when the employees are engaged within the scope of their 

employment and authority. 

* * * 

(2) Except as otherwise provided in sections 3314.07 and 

3746.24 of the Revised Code, political subdivisions are liable for 

injury, death, or loss to person or property caused by the negligent 

performance of acts by their employees with respect to proprietary 

functions of the political subdivisions. 

(3) Except as otherwise provided in section 3746.24 of the 

Revised Code, political subdivisions are liable for injury, death, or loss 

to person or property caused by their negligent failure to keep public 

roads in repair and other negligent failure to remove obstructions from 

public roads, * * *. 

(4) Except as otherwise provided in section 3746.24 of the 

Revised Code, political subdivisions are liable for injury, death, or loss 

to person or property that is caused by the negligence of their 

employees and that occurs within or on the grounds of, and is due to 

physical defects within or on the grounds of, buildings that are used in 

connection with the performance of a governmental function * * *. 

(5) In addition to the circumstances described in divisions 

(B)(1) to (4) of this section, a political subdivision is liable for injury, 

death, or loss to person or property when civil liability is expressly 

imposed upon the political subdivision by a section of the Revised 

Code, including, but not limited to, sections 2743.02 and 5591.37 of 

the Revised Code. Civil liability shall not be construed to exist under 
OHIO FIRST DISTRICT COURT OF APPEALS

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another section of the Revised Code merely because that section 

imposes a responsibility or mandatory duty upon a political 

subdivision, because that section provides for a criminal penalty, 

because of a general authorization in that section that a political 

subdivision may be sued and be sued, or because that section uses the 

term “shall” in a provision pertaining to a political subdivision. 

First Assignment of Error 

{¶13} In its first assignment of error, CMHA argues that the trial court erred 

in denying summary judgment on Johnson’s negligence claim because a “loose floor 

mat” is not a “physical defect” under R.C. 2744.02(B)(4). Johnson’s negligence claim 

alleged that the premises was owned and maintained by CMHA, CMHA negligently 

maintained the “non-slip step mat” on the interior staircase of her home, and the 

“non-slip step mat” detached from a step while she was descending, causing her to 

fall down the staircase and sustain injuries. 

{¶14} “To establish the physical-defect exception [under R.C. 

2744.02(B)(4)], a plaintiff must allege that the injury, death, or loss (1) resulted from 

employee negligence, (2) occurred within or on the grounds of buildings used in 

connection with a governmental function, and (3) resulted from a physical defect 

within or on the grounds of buildings used in connection with a governmental 

function.” R.K. v. Little Miami Golf Ctr., 2013-Ohio-4939, 1 N.E.3d 833, ¶ 15 (1st 

Dist.), citing Leasure v. Adena Local School Dist., 2012-Ohio-3071, 973 N.E.2d 810, 

¶ 15 (4th Dist.). 

{¶15} CMHA only challenges the third element, arguing that the stair mat is 

not a “physical defect.” Thus, our analysis is limited to whether summary judgment 

should have been granted because the mat could not be considered a physical defect 
OHIO FIRST DISTRICT COURT OF APPEALS

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under R.C. 2744.02(B)(4). “Although a ‘physical defect’ is not defined in R.C. 

Chapter 2744, courts have defined a physical defect as a ‘perceivable imperfection 

that diminishes the worth or utility of the object at issue.’ ” R.K. at ¶ 16, quoting 

Hamrick v. Bryan City School Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio2572, ¶ 25. Put another way, courts have held that the physical-defect exception may 

apply “if the instrumentality that caused the plaintiff’s injury did not operate as 

intended due to a perceivable condition * * *.” Leasure at ¶ 20. Conversely, courts 

have found that the physical-defect exception may not apply “when the 

instrumentality that caused the plaintiff’s injury operated as intended.” Id. at ¶ 23. 

{¶16} For example, in Leasure, the appellee, who sustained an injury when 

she fell on the school gymnasium bleachers, sued the school district, and argued that 

the failure to properly extend the bleachers resulted in a physical defect. Id. at ¶ 3, 7-

8. The school district argued that the bleachers could not have constituted a physical 

defect because they were certified to be in working order. Id. at ¶ 26. The court 

stated: 

 In the case sub judice, the failure to properly set up the 

bleachers caused them to become unstable and, thus, to fail to operate 

as intended. In other words, the improperly set up bleachers 

contained a perceivable imperfection that impaired their utility. The 

bleachers were obviously meant to be used in a safe and stable 

manner. The improper set up resulted in the bleachers having the 

ability to move while in use. Appellees did present some evidence that 

the improperly set up bleachers resulted in the bottom step being 

shorter than the other steps. If appellees’ evidence is believed, the 
OHIO FIRST DISTRICT COURT OF APPEALS

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short step constitutes a perceivable imperfection and it also impaired 

the bleachers’ utility by failing to operate in a safe and stable manner. 

Id. at ¶ 24. Therefore, the court found that the evidence did not show “that the 

bleachers performed as intended,” because “the bleachers were intended to be set up 

properly so they would not shift position or move while in use,” and “[t]hey were 

not.” Id. at ¶ 25. Accordingly, the court agreed with the trial court that genuine 

issues of material fact remained regarding whether the bleachers constituted a 

physical defect. Id. at ¶ 29. 

{¶17} On the other hand, in Hamrick, the appellant, a municipal utilities 

worker who was dispatched to a school bus garage for an issue with water pressure, 

sued the school district after he entered the bus garage through an unlocked door 

and was later found seriously injured at the bottom of a “service pit.” Hamrick, 6th 

Dist. Williams No. WM-10-014, 2011-Ohio-2572, at ¶ 2-7. The school district, which 

maintained the garage, argued that the service pit was not a “physical defect” because 

its purpose was to permit mechanics to get beneath the school buses to perform 

maintenance and the pit operated as intended. Id. at ¶ 18. The appellant argued that 

the pit should have been covered and that the “lip surrounding the pit” should have 

been painted a different color. Id. at ¶ 23. The court of appeals found that there was 

no evidence presented of “any discernable imperfection that diminished the utility of 

either the bus garage or the service pit.” Id. at ¶ 29. Accordingly, the court stated, 

“There is nothing of record to suggest that either did not perform as intended or was 

less useful than designed.” Id. Therefore, the court affirmed the trial court’s grant of 

summary judgment. 

{¶18} We find the instant case to be more comparable to the circumstances 

in Leasure, 2012-Ohio-3071, 973 N.E.2d 810. Like the bleachers, the mat was not in 
OHIO FIRST DISTRICT COURT OF APPEALS

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the position it was intended to be and would shift or move while in use. Thus, the 

evidence does not show that the mat operated as intended. CMHA argues that the 

only issue with the mat was the “positioning” and as such the value of the mat was 

not diminished and it remained “capable of operating as intended.” However, this is 

not consistent with the record. Johnson testified that the mat would “shift” when she 

would step on it. Hence, the issue with the mat is not just where the mat was 

positioned. The issue is that the mat would move when walked on. The utility of a 

rubber mat on a stair would certainly be diminished if the mat was in fact loose and 

would shift when stepped on. Therefore, we find that genuine issues of material fact 

exist as to whether the mat constituted a “physical defect” under R.C. 2744.03(B)(4). 

Accordingly, we affirm the trial court’s denial of summary judgment on the issue of 

immunity in regard to Johnson’s negligence claim. 

Second and Third Assignments of Error 

{¶19} In its second and third assignments of error, CMHA argues that the 

trial court erred in denying summary judgment on Johnson’s second and third 

claims because both claims derive from violations of the Landlord-Tenant Act and 

these claims cannot meet the exception in R.C. 2744.02(B)(5) in order to defeat 

CMHA’s immunity. 

{¶20} Johnson did not provide a response to this argument in her brief to 

this court.1 “Under App.R. 16(B), an appellee’s brief must conform to the same 

requirements as an appellant’s brief.” Ayer v. Morenz-Harbinger, 1st Dist. 

Hamilton Nos. C-190687 and C-190716, 2020-Ohio-6861, ¶ 24, citing Stanley Miller 

1 Johnson also failed to provide a response to this argument in the trial court in her brief in 

opposition to the motion for summary judgment. The trial court did not directly address whether 

CMHA was entitled to immunity on these claims in its entry. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Constr. Co. v. Ohio School Facilities Comm., 192 Ohio App.3d 676, 2011-Ohio-909, 

950 N.E. 2d 218, ¶ 8 (10th Dist.). Thus, an appellee’s brief must contain detailed 

arguments that comply with App.R. 16(A)(7). See id. App.R. 16(A)(7) requires the 

appellee to present arguments “containing the contentions of the [appellee] with 

respect to each assignment of error presented for review and the reasons in support 

of the contentions, with citations to the authorities, statutes, and parts of the record 

on which [appellee] relies.” 

{¶21} “These procedural rules support the well-settled principle that it is not 

the court’s duty to root out arguments supporting a party’s position on appeal.” 

(Citation omitted.) Stanley Miller at ¶ 8. “Indeed, it is improper for an appellate 

court to construct legal arguments to support a party’s position.” Id., citing State ex 

rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, 850 N.E.2d 1218, ¶ 94. 

{¶22} If a brief does not comply with the applicable appellate rules, a 

reviewing court may apply App.R. 18(C). (Citations omitted.) State v. Wright, 4th 

Dist. Scioto No. 04CA2958, 2005-Ohio-5539, ¶ 6. “App.R. 18(C) provides that if an 

appellee fails to file a brief, a reviewing court may accept appellant’s statement of 

facts and issues as correct and reverse the trial court’s judgment if the appellant’s 

brief reasonably appears to sustain such an action.” Id. 

{¶23} Because Johnson did not present any argument in her brief regarding 

CMHA’s second and third assignments of error, we accept CMHA’s contentions that 

Johnson’s second and third causes of action derive from violations of the LandlordTenant Act contained in R.C. Chapter 5321 and that the only issue to be decided in 

regard to these claims is whether a claim for a violation of the Landlord-Tenant Act 

may proceed under the exception to immunity contained in R.C. 2744.02(B)(5). See 

App.R.16(B), App.R. 16(A)(7), and App.R. 18(C). Johnson has not argued any other 
OHIO FIRST DISTRICT COURT OF APPEALS

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applicable exceptions, and we are prevented from constructing an argument for her 

on appeal. See Stanley Miller, 192 Ohio App.3d 676, 2011-Ohio-909, 950 N.E.2d 

218, at ¶ 8. Therefore, the sole issue before us on these assignments of error is 

whether a violation of R.C. Chapter 5321 can proceed under the exception contained 

in R.C. 2744.02(B)(5). 

{¶24} This issue has already been decided by the Ohio Supreme Court in 

Moore v. Lorlain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, 905 

N.E.2d 606, ¶ 21 (holding that R.C. Chapter 5321 does not expressly impose liability 

on a political subdivision as required for R.C. 2744.02(B)(5)). Consequently, CMHA 

is correct that Johnson’s claims for violations of R.C. Chapter 5321 cannot proceed 

under R.C. 2744.02(B)(5). Therefore, we must sustain CMHA’s second and third 

assignments of error and hold that summary judgment should have been granted on 

these claims. Accordingly, we find that appellant’s brief reasonably sustains reversal 

of the trial court’s decision in this regard. See App.R. 18(C). 

Conclusion 

{¶25} For the foregoing reasons, we overrule the first assignment of error 

and sustain the second and third assignments of errors. Accordingly, we affirm the 

trial court’s judgment regarding the cause of action for negligence but reverse the 

trial court’s judgment regarding the causes of action for breach of R.C. 5321.04 and 

breach of implied warranty of habitability. The cause is remanded for further 

proceedings. 

Judgment affirmed in part, reversed in part, and cause remanded. 

WINKLER and BOCK, JJ., concur. 

Please note: 

The court has recorded its own entry this date.