[Cite as Michnowicz v. Hines, 2012-Ohio-715.] 

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed from is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: February 24, 2012 

James W. Costin, for Plaintiff-Appellee, 

Joyce V. Kimbler, for Defendant-Appellant. 

Please note: This case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

WILLIAM MICHNOWICZ, 

 Plaintiff-Appellee, 

 vs. 

DANIEL J. HINES, 

 Defendant-Third-Party-PlaintiffAppellant, 

 

 vs. 

ROGER WELLS, d.b.a. MIKE’S 

CONSTRUCTION, 

 Third-Party Defendant. 

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APPEAL NO. C-110048 

TRIAL NO. A-0902904 

 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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CUNNINGHAM, Judge. 

{¶1} Defendant-appellant Daniel J. Hines appeals from a judgment of the 

Hamilton County Court of Common Pleas directing a verdict for plaintiff-appellee 

William Michnowicz in an action for damages caused after a water pipe in Hines’s 

condominium unit ruptured. For the reasons that follow, we reverse the trial court’s 

judgment. 

I. Background Facts 

{¶2} Both Michnowicz and Hines owned condominium units at The 

Residences at Summit View (“the condominium.”) On December 24, 2006, a water 

pipe broke within Hines’s unit. The water pipe had travelled through a vanity to 

Hines’s bathroom sink, and when it ruptured, water escaped to Hines’s floor and to 

Michnowicz’s unit below, causing damage. 

{¶3} The condominium instruments, specifically Article XI, Section 2 of 

the condominium’s declaration, imposed upon Michnowicz and Hines, as unit 

owners, the responsibility to “repair and maintain” their own units and the 

components within their own units. Michnowicz pursued a claim against Hines for 

damages under R.C. 5311.23, which provides, in relevant part, that “a * * * unit 

owner * * * is liable in damages in a civil action for harm caused to any person * * * 

by that individual’s failure to comply with any lawful provision of the condominium 

instruments.” 1 

{¶4} At trial, Michnowicz demonstrated that the ruptured section of the 

water pipe had been a component of Hines’s unit, and that Hines had had the 

 1 Hines filed a third-party complaint for indemnification or contribution against Roger Wells, 

d.b.a. Mike’s Construction, claiming that Wells had negligently installed the water pipe. The trial 

court granted summary judgment to Wells after Wells demonstrated that he had not performed 

any of the construction work and had merely been a member of a limited liability company, now 

dissolved, that had performed conversion work for the owners of the apartment building. 
OHIO FIRST DISTRICT COURT OF APPEALS

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responsibility to maintain it under the condominium’s declaration. But Michnowicz 

did not present any evidence concerning what had caused the water pipe to fail. 

{¶5} Hines offered testimony from Mark Nichting, his insurance adjuster, 

on the cause of the water pipe’s failure, as told to Nichting by Tony Elder, the 

individual who had repaired the water pipe. Elder had died before the trial, and the 

trial court sustained Michnowicz’s objection to the admission of this part of 

Nichting’s testimony on hearsay grounds. 

{¶6} Nichting was permitted to testify, however, that the water pipe had 

been installed in an atypical arrangement, and that Hines could not have inspected 

the water pipe inside the vanity cabinet without taking apart the cabinet because the 

installer had glued a drawer shut. Hines corroborated this later testimony, and he 

noted that he had no training in plumbing, suggesting that he would not have known, 

upon inspection, if the plumbing had been installed erroneously. 

{¶7} Hines also testified that he had purchased the unit after the building 

had been converted from apartments to condominiums, and that he had had no 

notice of any leaks in his unit while living there. But Hines admitted that he had 

never inspected the plumbing connected to his half-bath sink. 

{¶8} Both parties moved for a directed verdict at the close of all evidence. 

According to Michnowicz, he had conclusively established Hines’s liability by 

demonstrating that Hines had had the responsibility to maintain the water pipe, that 

the water pipe had ruptured, and that he had been damaged as a result. 

{¶9} Hines countered by arguing in part that he owed Michnowicz only the 

duty of ordinary care to maintain the water pipe and that Michnowicz had failed to 

demonstrate a breach of this duty and proximate cause. The trial court granted 
OHIO FIRST DISTRICT COURT OF APPEALS

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Michnowicz’s motion for a directed verdict and awarded him damages of $20,000. 

This appeal followed. 

II. Liability 

{¶10} In his first assignment of error, Hines argues that the trial court erred 

by directing a verdict in favor of Michnowicz on the issue of liability. The trial court 

may grant a motion for a directed verdict only if, after construing the evidence in the 

light most favorable to the party against whom the motion is directed, “reasonable 

minds could come to but one conclusion upon the evidence submitted and that 

conclusion is adverse to such party.” Civ.R. 50(A)(4). This reasonable-minds test 

requires the court “to discern only whether there exists any evidence of substantive 

probative value that favors the position of the nonmoving party.” Goodyear Tire & 

Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 

N.E.2d 835, ¶ 3. 

{¶11} The trial court’s decision to grant a motion for a directed verdict 

involves a question of law. Accordingly, our review is de novo. Id. at ¶ 4. 

{¶12} Initially, Hines complains that the trial court did not clearly state the 

grounds for the directed verdict. Thus, before we can address whether the evidence 

met the standard for a directed verdict, we must first determine the theory that 

Michnowicz prevailed upon. 

{¶13} Michnowicz contends that the trial court found in his favor because it 

determined, after reviewing all the evidence, “that [Hines] was in ‘exclusive control’ 

of his unit, it was [Hines’s] duty to maintain the components of his unit, the water 

pipe in [Hines’s] unit failed, and [Michnowicz] was damaged as a result.” He also 

states that Hines had a “duty to maintain the water system so that it [did] not cause 

damage whether the failure results from lack of maintenance or inspection or the 
OHIO FIRST DISTRICT COURT OF APPEALS

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actions of a third party.” Although Michnowicz does not use the words “absolute 

liability” to characterize the standard underlying his theory of recovery, we can only 

conclude that “absolute liability” is what he means. 

{¶14} Moreover, we conclude that the trial court imposed absolute liability 

based on the failure of the water pipe and that the court did not impose liability 

based on Hines’s violation of the duty to maintain, as set forth in the declaration. In 

explaining its decision to remove the case from the jury, the court stated the 

following: 

Basically, in this particular case, the plaintiff is a sitting 

duck. * * * [I]t is only fair that the upper dominant 

landowner who had exclusive control over this situation, 

within his own unit, within his own vanity, and the fact 

that it is, shall I say glued to the pipes, is of * * * no 

concern. His testimony was that yes with a hammer, I 

could have taken this vanity out. I can see my own 

pipes. It’s his responsibility. He could have taken it off. 

And he, the defendant * * * will be held liable for any 

and all damages caused by the flow of water. 

{¶15} We are unable to agree, however, with Michnowicz and the trial court, 

that the condominium association’s instruments and R.C. 5311.23(A) give rise to a 

cause of action in absolute liability against a condominium unit owner for property 

damage to other units caused by the failure of a component for which the owner had 

the responsibility to maintain. 

A. Ohio’s Condominium Act 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶16} Our analysis of this issue begins with a short summary of the 

condominium as a form of real property. Condominium ownership is a statutory 

creation. See R.C. Chapter 5311 (codifying Ohio’s Condominium Act and its 

amendments). 

{¶17} Under the unique condominium “regime,” real estate is divided into 

separate spaces, known as “units.” Kuehnle and Williams, Ohio Condomium Law, 

Section 1:1, at 1 (2011); see also R.C. 5311.03. The owners of the units also own an 

undivided interest as tenants in common with all of the other owners of units in the 

“common elements,” which is generally comprised of the remainder of the property 

that is not within one of the units. Id. 

{¶18} All owners of units in a condominium property belong to the 

condominium’s “[u]nit owners association.” R.C. 5311.01(DD). This association 

“administers” the condominium property. Id.; R.C. 5311.08(A)(1). The 

condominium instruments set forth the plan for condominium ownership of the 

property, including defining the unit and its components and the maintenance and 

repair responsibilities of the association and the unit owner. See R.C. 5311.01(M). 

{¶19} The statutory section that Michnowicz relies upon in his claim for 

relief, R.C. 5311.23(A), provides that “a declarant, developer, agent, or unit owner

or any person entitled to occupy a unit is liable in damages in a civil action for 

harm caused to any person or to the unit owners association by that 

individual’s failure to comply with any lawful provision of the 

condominium instruments.” (Emphasis added.) Subdivisions (B) and (C) of 

R.C. 5311.23 generally provide a statutory right to a declaratory judgment action to 

determine legal rights under the condominium instruments or to obtain an 

injunction, and a statutory right to a class action by unit owners. Subdivision (D) 
OHIO FIRST DISTRICT COURT OF APPEALS

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authorizes the unit owners association to bring an action under the section “in its 

own name, in the name of the board of directors, or in the name of the association’s 

managing agent.” 

B. The Condominium’s Instruments 

{¶20} “The Declaration for the Residences at Summit View Condominium” 

is part of the condominium’s instruments. See R.C. 5311.01(M). Article XI of that 

declaration reads as follows: 

Section 1. Association Responsibility. The Association 

shall maintain and repair the Common Areas, including 

and not limited to utility facilities serving more than one 

(1) Unit, utility lines in the Common Areas, lawns, 

shrubs, trees, walkways, the balconies, and all the 

buildings which are part of the Common Areas, 

provided, however, that the Association shall not be 

required to perform normal cleaning of the individual 

unit balconies. 

Section 2. Individual Responsibility. Each Unit Owner 

shall repair and maintain the Unit or Units, and all 

components thereof, owned by that Unit Owner, and the 

balconies appurtenant to a Unit to the extent not the 

obligation of the Association. Without limiting the 

generality of the foregoing, this repair and maintenance 

responsibility shall include repair and maintenance of 

all windows, screens and doors, including the frames, 

sashes and jambs, and the hardware therefor; and 
OHIO FIRST DISTRICT COURT OF APPEALS

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cleaning of the balconies. In the event a Unit Owner 

shall fail to keep such balcony area clean, or in the event 

the need for maintenance or repair of any part of the 

Common Areas or Limited Common Areas is caused by 

the negligent or intentional act of any Unit Owner or 

Occupant, and the cost of repair is not covered by 

insurance, the cost of such maintenance and repair shall 

constitute a Special Individual Unit Assessment, as 

hereinafter defined, on the Unit owned by such Unit 

Owner. The determination that such maintenance or 

repair is necessary, or has been so caused, shall be made 

by the Board. 

{¶21} Upon our review, we hold that the trial court erred by interpreting 

Article XI, Section 2 and R.C. 5311.23(A) to impose on Hines absolute liability for 

any damages to Michnowicz caused by the failure of a component in Hines’s unit that 

Hines had the responsibility to maintain. Article XI, Section 2 merely sets forth the 

responsibility of the owner to maintain the unit and its components, but it does not 

define the scope of the duty to maintain. 

{¶22} And R.C. 5311.23(A) simply subjects unit owners to statutory liability 

to others for damages caused by the failure to comply with a provision of the 

association’s instruments. The trial court effectively eliminated this element of 

proximate cause. Further, R.C. 5311.23(A) does not define a standard of care for the 

underlying violation of a provision, and we do not believe the General Assembly 

intended it to. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶23} Thus, to prevail on his cause of action under R.C. 5311.23(A), 

Michnowicz must establish (1) Hines’s responsibility to maintain the water pipe 

under Article XI, Section 2 of the condominium declaration, (2) Hines’s failure “to 

maintain” it, as contemplated by this provision, (3) and an injury proximately caused 

by this failure to comply with this provision. 

{¶24} The trial court erred by applying an absolute liability standard. And, 

even if the trial court had applied the correct rule, we hold that the evidence would 

not have support a directed verdict in favor of Michnowicz. See Civ.R. 50(A)(4). 

Accordingly, we sustain the first assignment of error. 

III. Damages 

{¶25} In his second assignment of error, Hines argues that the trial court 

applied the wrong measure of damages. This assignment of error is rendered moot 

by our disposition of the first assignment of error, and we decline to address it. See 

App.R. 12(A)(1)(c). 

{¶26} Accordingly, we reverse the judgment of the trial court, and we 

remand the case for further proceedings in accordance with law and consistent with 

this decision. 

Judgment reversed and cause remanded. 

HENDON, P.J., and FISCHER, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this decision.