[Cite as Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495.] 

LANG, APPELLANT, v. HOLLY HILL MOTEL, INC. ET AL., APPELLEES. 

[Cite as Lang v. Holly Hill Motel, Inc., 

122 Ohio St.3d 120, 2009-Ohio-2495.] 

Torts — Premises liability — Liability for open and obvious hazards — Building 

code violations — Violations of administrative rules do not constitute 

negligence per se. 

(Nos. 2007-1222 and 2007-1370 — Submitted February 17, 2009 — Decided 

June 3, 2009.) 

APPEAL from and CERTIFIED by the Court of Appeals for Jackson County, 

No. 06CA18, 2007-Ohio-3898. 

__________________ 

SYLLABUS OF THE COURT

The open-and-obvious doctrine may be asserted as a defense to a claim of liability 

arising from a violation of the Ohio Basic Building Code. 

__________________ 

MOYER, C.J. 

I 

{¶ 1} The Fourth District Court of Appeals certified this case pursuant to 

Section 3(B)(4), Article IV, Ohio Constitution and App.R. 25. The court of 

appeals found its judgment to be in conflict with the judgments of the First and 

Tenth District Courts of Appeals1 on the following issue: “[w]hether a violation of 

an administrative building code provision prohibits the application of the open 

 

1. See Christen v. Don Vonderhaar Mkt. & Catering, Inc., 1st Dist. No. C-050125, 2006-Ohio715; Francis v. Showcase Cinema Eastgate, 155 Ohio App.3d 412, 2003-Ohio-6507, 801 N.E.2d 

535; Uddin v. Embassy Suites Hotel, 165 Ohio App.3d 699, 2005-Ohio-6613, 848 N.E.2d 519, 

appeal allowed, 109 Ohio St.3d 1455, 2006-Ohio-2226, 847 N.E.2d 5, appeal dismissed as 

improvidently allowed, 113 Ohio St.3d 1249, 2007-Ohio-1791, 864 N.E.2d 638. 
SUPREME COURT OF OHIO

2 

and obvious doctrine and precludes summary judgment on a negligence claim.” 

We accepted plaintiff-appellant Dorothy Lang’s discretionary appeal on the same 

issue. 

{¶ 2} For the following reasons, we affirm the judgment of the court of 

appeals and hold that the open-and-obvious doctrine remains applicable in cases 

where the defendant violated the Ohio Basic Building Code. 

II 

{¶ 3} Appellant Dorothy Lang is the executor of the estate of her 

husband, Albert Lang. One evening in early April 1999, the Langs arrived at the 

Holly Hill Motel, owned by appellee Holly Hill Motel, Inc., and asked to rent a 

room. Because Mr. Lang was 78 years old, suffered from emphysema, and 

carried a portable oxygen tank, Mrs. Lang requested a handicapped-accessible 

room. The motel did not have any such rooms available, but the front desk clerk 

informed Mrs. Lang that they could have a room that would require them to climb 

only one step. The Langs rented that room and parked their car outside of it. 

{¶ 4} After exiting the car, they discovered that they would actually have 

to climb two steps to get into the room, and that the steps had no handrails. Mr. 

Lang successfully climbed the first step with assistance from Mrs. Lang. 

However, as he attempted to climb the second step, also with Mrs. Lang’s 

assistance, he fell and broke his hip. Mr. Lang ultimately died a little over three 

months after his fall. 

{¶ 5} Mrs. Lang sued the motel for negligence. In her complaint, she 

alleged that the step Mr. Lang tripped over exceeded the height limitations in the 

Ohio Basic Building Code and that this violation created a dangerous condition 

that was exacerbated by the absence of handrails, which were also required under 

the Building Code. According to Mrs. Lang’s expert witness, the first step, which 

Mr. Lang successfully climbed, was at its lowest point 3.5 inches higher than was 

permissible under the Building Code and the second step, over which Mr. Lang 
January Term, 2009 

3 

fell, was at its lowest point 2.375 inches higher than permissible. The motel filed 

a third-party complaint against appellee Rodney McCorkle, d.b.a. McCorkle 

Builders, who allegedly had constructed the part of the motel, including the steps, 

where this incident occurred. 

{¶ 6} The motel and McCorkle moved for summary judgment, arguing 

that even if the step was constructed in violation of the Building Code, it was 

nonetheless an open and obvious condition and that they therefore owed no duty 

of care to the Langs. Mrs. Lang appealed the trial court order of summary 

judgment for defendants, arguing, inter alia, that the open-and-obvious doctrine is 

inapplicable and summary judgment is improper when the condition at issue is in 

violation of the Building Code. 

{¶ 7} The court of appeals first determined that the step was an open and 

obvious condition and that there were no attendant circumstances that distracted 

the Langs from appreciating the danger of the condition. Lang v. Holly Hill 

Motel, Inc., 4th Dist. No. 06CA18, 2007-Ohio-3898, ¶ 26–28. The court then 

recognized that there was a conflict among the appellate districts regarding 

whether Building Code violations preclude summary judgment when a condition 

is open and obvious. Id. ¶ 29. After reviewing this court’s opinion in Chambers 

v. St. Mary’s School (1998), 82 Ohio St.3d 563, 697 N.E.2d 198, and decisions 

from the various districts in conflict, the court of appeals held that a Building 

Code violation does not negate the application of the open-and-obvious doctrine. 

Id. ¶ 34. It therefore affirmed the judgment of the trial court entering summary 

judgment for the defendants. Id. ¶ 35. 

{¶ 8} The court then certified its decision as being in conflict with 

decisions from the First and Tenth District Courts of Appeals. We accepted 

Lang’s discretionary appeal and recognized the certified conflict. 115 Ohio St.3d 

1407, 2007-Ohio-4884, 873 N.E.2d 1313; 115 Ohio St.3d 1408, 2007-Ohio-4884, 

873 N.E.2d 1314. 
SUPREME COURT OF OHIO

4 

III 

{¶ 9} This case requires us to determine whether the open-and-obvious 

doctrine is applicable to a premises-liability action when the condition that caused 

the injury violates the Ohio Basic Building Code. 

A. The open-and-obvious doctrine 

{¶ 10} To prevail in a negligence action, a plaintiff must demonstrate that 

(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached 

that duty, and (3) the defendant’s breach proximately caused the plaintiff to be 

injured. Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 

1195, ¶ 21, citing Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St.3d 75, 

77, 15 OBR 179, 472 N.E.2d 707. When the alleged negligence occurs in the 

premises-liability context, the applicable duty is determined by the relationship 

between the landowner and the plaintiff. Gladon v. Greater Cleveland Regional 

Transit Auth. (1996), 75 Ohio St.3d 312, 315, 662 N.E.2d 287. It is undisputed in 

this case that the Langs were business invitees of the Holly Hill Motel, and thus 

the motel had a duty “to exercise ordinary care and to protect the [Langs] by 

maintaining the premises in a safe condition.” Light v. Ohio Univ. (1986), 28 

Ohio St.3d 66, 68, 28 OBR 165, 502 N.E.2d 611. 

{¶ 11} However, this duty does not require landowners to insure the 

safety of invitees on their property. As we have repeatedly recognized, “[t]he 

open-and-obvious doctrine remains viable in Ohio. Where a danger is open and 

obvious, a landowner owes no duty of care to individuals lawfully on the 

premises.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 

788 N.E.2d 1088, syllabus, approving and following Sidle v. Humphrey (1968), 

13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589. “[T]he owner or occupier may 

reasonably expect that persons entering the premises will discover those dangers 

and take appropriate measures to protect themselves.” Simmers v. Bentley Constr. 

Co. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504. Thus, when a plaintiff is 
January Term, 2009 

5 

injured by an open and obvious danger, summary judgment is generally 

appropriate because the duty of care necessary to establish negligence does not 

exist as a matter of law. Armstrong ¶ 14–15. 

B. Exception to the open-and-obvious doctrine 

{¶ 12} Mrs. Lang has not appealed the court of appeals’ determination 

that the step was open and obvious. She argues instead that the open-and-obvious 

doctrine does not eliminate the landowner’s duty of care, and thus summary 

judgment is inapplicable, when the dangerous condition at issue violates the 

Building Code. In short, she is asking for an exception to the open-and-obvious 

doctrine when the condition that allegedly caused an injury violates the Building 

Code. 

{¶ 13} We recently addressed whether such an exception should exist for 

cases in which a landowner’s failure to comply with a statutory duty creates an 

open and obvious danger. Robinson, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 

N.E.2d 1195. In Robinson, the plaintiff was injured when she fell in the driveway 

of a residence that she rented from the defendant. Id. ¶ 2. The trial court 

determined that the driveway, which was under repair at the time, was an open 

and obvious danger and accordingly entered a directed verdict for the defendant. 

Id. ¶ 3. 

{¶ 14} Upon appeal from the court of appeals, we held that although the 

open-and-obvious doctrine can excuse a defendant’s breach of a common-law 

duty of care, it does not override statutory duties. Id. ¶ 25. The distinction 

between the two types of duties lies in the fact that the violation of a statutory 

duty constitutes negligence per se. Id. ¶ 23–25. See also Chambers, 82 Ohio 

St.3d at 565, 697 N.E.2d 198, citing Eisenhuth v. Moneyhon (1954), 161 Ohio St. 

367, 53 O.O. 274, 119 N.E.2d 440. (“Where a legislative enactment imposes a 

specific duty for the safety of others, failure to perform that duty is negligence per 

se”). 
SUPREME COURT OF OHIO

6 

{¶ 15} The concept of negligence per se allows the plaintiff to prove the 

first two prongs of the negligence test, duty and breach of duty, by merely 

showing that the defendant committed or omitted a specific act prohibited or 

required by statute; no other facts are relevant. Chambers at 565–566, 697 N.E.2d 

198, citing Swoboda v. Brown (1935), 129 Ohio St. 512, 522, 2 O.O. 516, 196 

N.E. 274. We have recognized that when the General Assembly has enacted 

statutes the violations of which constitute negligence per se, the open-and-obvious 

doctrine will not protect a defendant from liability. Robinson, 112 Ohio St.3d 17, 

2006-Ohio-6362, 857 N.E.2d 1195, ¶ 25; Chambers, 82 Ohio St.3d at 567–568, 

697 N.E.2d 198. 

C. Administrative-rule violations and the open-and-obvious doctrine 

{¶ 16} In requesting an exception from the application of the open-andobvious doctrine for Building Code violations, Mrs. Lang is essentially asking us 

to elevate administrative-rule violations to the level of negligence per se that we 

applied to statutory violations in Robinson. 

{¶ 17} However, we rejected this argument in Chambers, in which the 

plaintiff slipped and fell on icy steps and alleged that the defendant had 

committed several Building Code violations that created the dangerous condition. 

Chambers, 82 Ohio St.3d at 564, 697 N.E.2d 198. He urged us to hold that a 

violation of the Building Code constitutes negligence per se. Id. 

{¶ 18} In resolving the issue, we distinguished between duties arising 

from statutes, which reflect public policy, and duties arising from administrative 

rules, which are created by administrative agency employees who act to 

implement the General Assembly’s public-policy decisions. Chambers, 82 Ohio 

St.3d at 564, 566-567, 697 N.E.2d 198. “If we were to rule that a violation of the 

[Building Code] (an administrative rule) was negligence per se, we would in 

effect bestow upon administrative agencies the ability to propose and adopt rules 

which alter the proof requirements between litigants. Altering proof requirements 
January Term, 2009 

7 

is a public policy determination more properly determined by the General 

Assembly * * *.” Id. at 568. 

{¶ 19} We also noted that there are innumerable administrative rules 

adopted each year and that it would be virtually impossible to comply with all of 

them. Id. Applying negligence per se in this context would thus in effect turn 

those subject to administrative rules into insurers of third-party safety, something 

that violates the basic principle of the open-and-obvious doctrine. Id. “Only 

those relatively few statutes which this court or the General Assembly has 

determined, or may determine, should merit application of negligence per se

should receive such status.” (Emphasis sic.) Id. 

{¶ 20} For those reasons, we declined to extend negligence per se to 

administrative-rule violations, holding instead that such violations could be 

admissible as evidence of negligence, but nothing further. Id. 

{¶ 21} Our holding there resolves the present issue. Because 

administrative-rule violations do not create a per se finding of duty and breach of 

duty, the plaintiff must present evidence to establish those two prongs of the 

negligence test. While a violation of the Building Code may serve as strong 

evidence that the condition at issue was dangerous and that the landowner 

breached the attendant duty of care by not rectifying the problem, the violation is 

mere evidence of negligence and does not raise an irrebuttable presumption of it. 

As is the case with all other methods of proving negligence, the defendant may 

challenge the plaintiff’s case with applicable defenses, such as the open-andobvious doctrine. The plaintiff can avoid such defenses only with a per se finding 

of negligence, which we declined to extend to this context in Chambers. 

{¶ 22} Mrs. Lang argues that applying the open-and-obvious doctrine in 

this manner negates the importance of the regulations and eliminates the penalties 

for noncompliance. We disagree. Her argument assumes that there will be no 

circumstances in which a dangerous condition created by a Building Code 
SUPREME COURT OF OHIO

8 

violation is not open and obvious. This decision applies only to those cases in 

which an alleged Building Code violation creates an alleged danger that is 

allegedly open and obvious to the plaintiff. There is little difference in this regard 

between an open and obvious condition that arises from an administrative-rule 

violation and one that arises from other circumstances; in either case, the plaintiff 

is responsible for his or her own decision to proceed through a known danger. 

{¶ 23} Moreover, this decision will not provide a disincentive for 

landowners to comply with the Building Code. In addition to the possibility that a 

condition arising from a violation will not be open and obvious, there are 

numerous statutory penalties that may be levied against landowners who commit 

violations. See R.C. 3781.15 (providing for injunctions for violations of the 

Building Code) and 3781.99(B) and (C) (providing for fines and criminal 

penalties for such violations). The potential for civil liability and the threat of 

statutory penalties for noncompliance are powerful disincentives to landowners 

who contemplate violating the Building Code. 

{¶ 24} Therefore, we hold that the open-and-obvious doctrine may be 

asserted as a defense to a claim of liability arising from a violation of the Ohio 

Basic Building Code. 

IV 

{¶ 25} For the foregoing reasons, we affirm the judgment of the court of 

appeals. 

Judgment affirmed. 

 LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur. 

 O’CONNOR and LANZINGER, JJ., concur in judgment only. 

 PFEIFER, J., dissents. 

__________________ 

LANZINGER, J., concurring in judgment only. 
January Term, 2009 

9 

{¶ 26} Today, the majority holds that the open-and-obvious doctrine may 

be asserted as a defense to a claim of liability arising from a violation of the Ohio 

Basic Building Code. In reality, this is more than a defense—it is a complete bar 

to a claim of negligence. 

{¶ 27} 2 Restatement of the Law 2d, Torts (1965), Section 343A(1), 

states, “A possessor of land is not liable to his invitees for physical harm caused 

to them by any activity or condition on the land whose danger is known or 

obvious to them, unless the possessor should anticipate the harm despite such 

knowledge or obviousness.” (Emphasis added.) Comment f further explains: 

“There are, however, cases in which the possessor of land can and should 

anticipate that the dangerous condition will cause physical harm to the invitee 

notwithstanding its known or obvious danger. In such cases the possessor is not 

relieved of the duty of reasonable care which he owes to the invitee for his 

protection. This duty may require him to warn the invitee, or to take other 

reasonable steps to protect him, against the known or obvious condition or 

activity, if the possessor has reason to expect that the invitee will nevertheless 

suffer physical harm.” 

{¶ 28} Courts from other jurisdictions have adopted the foreseeability rule 

of Section 343A.2

 These courts have abolished the traditional common-law 

defense of open and obvious danger, which completely bars recovery if the 

danger is known by, or is obvious to, the plaintiff. This court, however, rejected 

the view expressed in Section 343A in Armstrong v. Best Buy Co., Inc., 99 Ohio 

St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 13. While I believe that Section 

 

2. Kremer v. Carr's Food Ctr., Inc. (Alaska 1969), 462 P.2d 747; Courtney v. Allied Filter Eng., 

Inc. (1989), 181 Ill.App.3d 222, 536 N.E.2d 952; Douglass v. Irvin (Ind.1990), 549 N.E.2d 368; 

Konicek v. Loomis Bros., Inc. (Iowa 1990), 457 N.W.2d 614; Murray v. E. Maine Med. Ctr. 

(Me.1982), 447 A.2d 465; Riddle v. McLouth Steel Prods. Corp. (1992), 440 Mich. 85, 485 

N.W.2d 676; Adee v. Evanson (Minn.1979), 281 N.W.2d 177; Burns v. Veterans of Foreign Wars 

(1989), 231 Neb. 844, 438 N.W.2d 485; Klopp v. Wackenhut Corp. (1992), 113 N.M. 153, 824 

P.2d 293; S. Ry. Co. v. ADM Milling Co. (1982), 58 N.C.App. 667, 294 S.E.2d 750; Carrender v. 

Fitterer (1983), 503 Pa. 178, 469 A.2d 120. 
SUPREME COURT OF OHIO

10 

343A is the better rule, stare decisis demands that our precedent to the contrary 

must be respected. 

{¶ 29} I also agree with the sentiment recently expressed by the dissent in 

Uddin v. Embassy Suites Hotel, 113 Ohio St. 3d 1249, 2007-Ohio-1791, 864 

N.E.2d 638, ¶ 16 (O’Connor, J., dissenting): “As the lead opinion of the court of 

appeals recognized, ‘[w]hen we are considering a motion for summary judgment, 

to ignore a party's purported violation of an administrative rule that is supported 

by some evidence would vitiate the legal significance of an administrative rule. 

For instance, in a case wherein summary judgment is sought and application of 

the open-and-obvious rule is disputed, if a defendant's purported violation of the 

administrative code that was supported by some evidence were ignored, a party 

could violate an administrative rule, thereby possibly endangering public safety, 

yet be insulated from liability because such a violation constituted an open-andobvious condition.’ 165 Ohio App.3d 699, 2005-Ohio-6613, 848 N.E.2d 519, ¶ 

37. To hold otherwise, we would have to defy the legal significance of 

administrative rules and suspend common sense.” 

{¶ 30} Appellant Dorothy Lang does not contest in this court the 

determinations of the trial court and court of appeals that the steps upon which her 

husband fell were an open and obvious condition. If she had, in my view this case 

would not have been appropriate for resolution by summary judgment. The 

alleged building code violations combined with other factors (that it was night, 

that the steps and sidewalk were uniform in color) would have created a genuine 

issue over whether the condition was indeed open and obvious. And simply 

allowing the jury to consider evidence of the alleged building code violations 

would not establish negligence per se. As the majority notes, “[w]hile a violation 

of the Building Code may serve as strong evidence that the condition at issue was 

dangerous and that the landowner breached the attendant duty of care by not 
January Term, 2009 

11 

rectifying the problem, the violation is mere evidence of negligence, and does not 

raise an irrebuttable presumption of it.” (Emphasis added.) Majority opinion, ¶ 21. 

{¶ 31} I believe that the facts in this case come within the exception to the 

lack of duty as set forth in Restatement of the Law 2d, Torts (1965), Section 

343A(1), that being the concept of anticipated harm from an obvious condition. 

Nevertheless, because this court has not adopted that exception, and based on this 

court’s earlier holding in Armstrong that an open and obvious condition bars a 

negligence action because of lack of duty, I concur in judgment only. 

 O’CONNOR, J., concurs in the foregoing opinion. 

__________________ 

 PFEIFER, J., dissenting. 

{¶ 32} Albert Lang was injured while on the premises of the Holly Hill 

Motel, allegedly, at least in part, because of building code violations. This court 

today decides that Mr. Lang’s widow cannot proceed with a lawsuit, because the 

building code violations that allegedly caused, at least in part, Mr. Lang’s injuries, 

and hastened his death, were open and obvious. This court again embraces the 

legal concept that “ ‘[w]here a danger is open and obvious, a landowner owes no 

duty of care to individuals lawfully on the premises,’ ” quoting Armstrong v. Best 

Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus. In 

doing so, this court clings to the past and ignores a modern trend in the law. 

{¶ 33} The open-and-obvious doctrine is a holdover from the days of 

contributory negligence. Id. at ¶ 17 (Pfeifer, J., dissenting). Now that 

contributory negligence has been replaced by the General Assembly with 

comparative fault, R.C. 2315.32 through 2315.36, the open-and-obvious doctrine 

should not be an absolute bar to recovery. 1 Comparative Negligence Manual (3d 

Ed.1995 & Supp.2003), Section 1:23 (“several jurisdictions have concluded that 

the adoption of comparative negligence requires abolition of the ‘no duty’ rule 

providing that a possessor of land owes no duty to warn a person on the premises, 
SUPREME COURT OF OHIO

12 

such as an invitee or a licensee, of open and obvious dangers. The rationale is that 

this rule is incompatible with comparative negligence principles, since its effect 

would be to resurrect contributory negligence as an absolute bar to recovery in 

certain cases involving premises liability” [footnote omitted]). 

{¶ 34} The unfairness of the open-and-obvious doctrine has been 

recognized by many commentators and courts. One commentator has stated that 

“[a]n undeniable legal error is committed every time a court bars recovery to an 

injured person based solely on the fact that the perilous nature of the alleged cause 

of harm was ‘apparent to all,’ without any consideration of the multitude of other 

factors which may justify or excuse the plaintiff's conduct.” Phillips, Assumption 

of the Risk Returns in Disguise as the Open and Obvious Doctrine Defense, 30 

ISBA Tort Trends (1995) 4, 10. The modern trend is away from application of 

the open-and-obvious doctrine. Tharp v. Bunge Corp. (Miss.1994), 641 So.2d 20, 

24 (“Emerging from other jurisdictions is a modern trend toward holding that the 

obviousness of a danger does not necessarily relieve the owner’s duty of care”); 

Ward v. K Mart Corp. (1990), 136 Ill.2d 132, 150, 554 N.E.2d 223 (“The 

manifest trend of the courts in this country is away from the traditional rule 

absolving, ipso facto, owners and occupiers of land from liability for injuries 

resulting from known or obvious conditions”). In Coln v. Savannah (Tenn.1998), 

966 S.W.2d 34, 43, overruled on other grounds, Cross v. Memphis (Tenn.2000), 

20 S.W.3d 642, 644, the Supreme Court of Tennessee joined this trend in 

concluding that an open and obvious danger “does not, ipso facto, relieve a 

defendant of a duty of care. Instead, the duty issue must be analyzed with regard 

to foreseeability and gravity of harm, and the feasibility and availability of 

alternative conduct that would have prevented the harm.” 

{¶ 35} I agree with the Supreme Court of New Mexico that “[a] risk is not 

made reasonable simply because it is made open and obvious to persons 

exercising ordinary care.” Klopp v. Wackenhut Corp. (1992), 113 N.M. 153, 157, 
January Term, 2009 

13 

824 P.2d 293. I also agree with that court’s holding that “it is for the jury to 

decide in virtually every case whether a dangerous condition on the premises 

involved ‘an unreasonable risk of danger to a business visitor’ and whether the 

occupier ‘should reasonably anticipate that the business visitor will not discover 

or realize the [obvious] danger.’ ” Id. at 158-159, quoting New Mexico Uniform 

Jury Instructions, 13–1310, citing Harrison v. Taylor (1989), 115 Idaho 588, 768 

P.2d 1321 (abolishing open-and-obvious-danger doctrine in light of adoption of 

comparative negligence); Cox v. J.C. Penney Co. (Miss.1987), 741 S.W.2d 28 

(same); Woolston v. Wells (1984), 297 Or. 548, 687 P.2d 144 (same); Parker v. 

Highland Park, Inc. (Tex.1978), 565 S.W.2d 512 (same); Hale v. Beckstead (Utah 

2005), 116 P.3d 263 (same); O’Donnell v. Casper (Wyo.1985), 696 P.2d 1278 

(same). I would abrogate the open-and-obvious doctrine. 

{¶ 36} In the case before us, the dangers were open because they were not 

hidden, but they were not obvious. The presence or absence of a handrail is not 

obvious until one reaches for it and it is either there or not. The proper height of a 

step, as prescribed by building codes, is not obvious, especially to a 

nonprofessional, without taking measurements. The building code violations that 

allegedly caused Mr. Lang’s injuries were open, but they were not obvious. This 

case presents an example of why the open-and-obvious doctrine should be 

abrogated: it does not allow the consideration of all the factors that are relevant to 

determine negligence or fault. 

{¶ 37} Even so, it is not necessary to abrogate the open-and-obvious 

doctrine to properly resolve this case. Building code violations are different from 

other open and obvious dangers because building codes are administrative rules 

and therefore “are to be given the force and effect of law.” Doyle v. Ohio Bur. of 

Motor Vehicles (1990), 51 Ohio St.3d 46, 554 N.E.2d 97, paragraph one of the 

syllabus. This is so because “ ‘[t]he purpose of administrative rulemaking is to 

facilitate the administrative agency’s placing into effect the policy declared by the 
SUPREME COURT OF OHIO

14 

General Assembly in the statutes to be administered by the agency. In other 

words, administrative agency rules are an administrative means for the 

accomplishment of a legislative end.’ ” Id. at 47, quoting Carroll v. Dept. of 

Adm. Servs (1983), 10 Ohio App.3d 108, 110, 10 OBR 132, 460 N.E.2d 704. See 

Youngstown Sheet & Tube Co. v. Lindley (1988), 38 Ohio St.3d 232, 234, 527 

N.E.2d 828, quoting Kroger Grocery & Baking Co. v. Glander (1948), 149 Ohio 

St. 120, 125, 36 O.O. 471, 77 N.E.2d 921 (“An administrative rule, ‘* * * issued 

pursuant to statutory authority, has the force and effect of law unless it is 

unreasonable or is in clear conflict with statutory enactment governing the same 

subject matter’ ”). The majority opinion minimizes the standing of administrative 

rules, relying on Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563, 697 

N.E.2d 198, and clearly considers them not worthy of the force and effect of law. 

There is even the suggestion that because administrative rules are changed so 

frequently, compliance with them is virtually impossible and, therefore, 

apparently optional. I do not have such a blasé attitude toward administrative 

rules. They are the law, unless unreasonable or contrary to statute, and 

compliance with them is mandatory; the failure to comply with them should have 

consequences. 

{¶ 38} I agree with the majority opinion that the violation of an 

administrative rule, in this case, a building code, should not be negligence per se. 

See id. at 568, 697 N.E.2d 198 (“we hold that the violation of an administrative 

rule does not constitute negligence per se”). Because administrative rules are law, 

however, I do not believe that this court should, in essence, look the other way 

when the violation of a building code provision allegedly results in injury. 

Instead, I believe that when a material building code violation allegedly causes an 

injury, the building code violation is evidence of negligence sufficient to get the 

plaintiff past summary judgment, even when the defendant asserts the 

anachronistic open-and-obvious doctrine. I dissent. 
January Term, 2009 

15 

__________________ 

Manley Burke, L.P.A., Emily T. Supinger, and Matthew W. Fellerhoff, for 

appellant. 

Sowash, Carson & Ferrier, L.P.A., Herman A. Carson, and Beth B. 

Ferrier, for appellee Holly Hill Motel. 

Weston Hurd, L.L.P, Kevin R. Bush, and Steven G. Carlino, for appellee 

Rodney McCorkle. 

Gallagher Sharp and Timothy J. Fitzgerald, urging affirmance for amicus 

curiae, Ohio Association of Civil Trial Attorneys. 

__________________