Mullens v. Binsky

• Citation: 130 Ohio App.3d 64,719 NE 2d 599
• Decision Date: 24 September 1998
• Docket Number: No. 97APE11-1451.,97APE11-1451.
• Parties: MULLENS, Admr., Appellant, v. BINSKY, Appellee, et al.
• Court: Ohio Court of Appeals

130 Ohio App.3d 64

719 NE 2d 599

MULLENS, Admr., Appellant, v. BINSKY, Appellee, et al.

No. 97APE11-1451.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided September 24, 1998.

Delena G. Edwards; Garey, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando and Madison B. McClellan, for appellant.

Richard Overstud, for appellee Beatrice Binsky.

DESHLER, Presiding Judge.

This is an appeal by plaintiff, Debra Mullens, from a summary judgment entered by the Franklin County Court of Common Pleas in favor of defendant, Beatrice Binsky.

On May 20, 1996, plaintiff Debra Mullens, administrator of the estate of Eric Mullens-Steele, filed a complaint, naming as defendants Beatrice Binsky, Bob Binsky, Frederick Meister, Kay Meister, Edward Newman, Elaine Newman, Phillip Paul and "Mrs. Phillip Paul." ¹ The complaint alleged that on June 5, 1994, Eric Mullens-Steele ("decedent"), was an invited guest at a graduation party on residential property owned by Beatrice Binsky and Bob Binsky. The complaint further alleged that defendants were negligent in failing to exercise reasonable care in supervising guests swimming in a pool on the property, resulting in the drowning of decedent. On June 20, 1996, defendants Beatrice Binsky and Bob Binsky filed a motion for summary judgment. Motions for summary judgment were subsequently filed by defendants Fred Meister, Kay Meister, Edward Newman, and Elaine Newman.

By decision filed November 14, 1997, the trial court granted summary judgment in favor of defendant Bob Binsky, on the basis that Binsky had no ownership interest in the premises (by virtue of a divorce) and that he was not present at the time of the incident. On September 24, 1997, the trial court rendered a decision granting summary judgment in favor of defendant Beatrice Binsky. The decision of the trial court was journalized by judgment entry filed on October 6, 1997. The judgment entry contained a Civ.R. 54(B) certification of "no just reason for delay."

Plaintiff appeals from the trial court's judgment entry of October 6, 1997, granting summary judgment in favor of defendant Beatrice Binsky, and sets forth the following assignments of error for review:

"Assignment of Error Number One

"The Common Pleas Court erred by awarding summary judgment in favor of Defendants-Appellees where the record demonstrated genuine issues of material fact regarding all elements of Plaintiff's negligence claims.

"Assignment of Error Number Two

"The Common Pleas Court erred by applying an erroneous definition of proximate cause in granting summary judgment in favor of Defendants-Appellees.

"Assignment of Error Number Three

"The Common Pleas Court erred by finding that Plaintiffs decedent assumed the risk of his injuries and death."

The facts of this case indicate that on June 5, 1994, decedent, age eighteen, attended a graduation party at a residence in Bexley owned by defendant Beatrice Binsky ("defendant"). Guests began arriving at the party at approximately 3:00 p.m. The defendant estimated that between seventy-five and eighty people attended the party throughout the afternoon. During the party, a number of the guests went swimming in the defendant's in-ground swimming pool. The deepest part of the pool is approximately eight and one half feet, while the most shallow point in the pool is forty-two inches. The pool has one set of stairs but no ladder. At approximately 6:00 p.m., decedent's body was discovered in the deep end of the pool. Immediate efforts to resuscitate the decedent were undertaken but to no avail. The evidence further indicates that, while there were a number of people in and around the pool area on the day of the party, nobody observed what happened to the decedent; specifically, none of the guests observed how the decedent got into the deep end of the water or where he first went down under the water at the time of the accident, nor did anyone notice any struggle or disturbance prior to the discovery of his body at the bottom of the pool.

Trevor Cooke, a guest at the party, pulled decedent from the pool. Cooke stated in his deposition that he last observed the decedent "in the water with his arms resting, leaning against the back of the pool." Daniel Meister, one of the graduates who attended the party, observed the decedent during the party standing in the shallow end of the pool. Cory Neugebauer, a high school student who attended the party, stated in an affidavit that he left the party at approximately 5:30 p.m. and that, when he left, the decedent "was standing in the shallow end against the side of the pool."

Plaintiff's three assignments of error are interrelated and will be addressed together. Plaintiff contends that summary judgment was inappropriate because genuine issues of material fact exist, including whether defendant breached a duty of care by allowing horseplay around the pool and failing to properly supervise the activities, whether the breakpoint in the pool constituted a hidden danger, whether defendant was negligent in failing to utilize a rope and float line and whether the failure to maintain proper water clarity prevented or hindered the timely rescue of the decedent. Plaintiff also argues that the trial court erred by applying an erroneous definition of proximate cause and in finding that the decedent assumed the risk of his death.

In Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274, the Ohio Supreme Court noted the applicable standard in ruling on a motion for summary judgment, stating:

"Civ.R. 56(C) specifically provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (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 viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party."

In order to defeat a motion for summary judgment brought in a negligence action, it is incumbent upon the plaintiff to identify a duty owed to plaintiff by the defendant; further, there must be sufficient evidence, "considered most favorably to the plaintiff, to allow reasonable minds to infer that the duty was breached, that the breach of that duty was the proximate cause of the plaintiff's injury and that the plaintiff was injured." Nagy v. Wallis (Apr. 27, 1995), Cuyahoga App. No. 66989, unreported, 1995 WL 248524. In order "[t]o warrant a finding that the negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence alleged and that it was such as ought to have been foreseen in the light of the attending circumstances." Id. Under Ohio law, "[a]n inference of negligence can arise only upon the proof of some fact from which such inference can be reasonably drawn and it can never arise from mere guess, speculation, or wishful thinking." Parras v. Standard Oil Co. (1953), 160 Ohio St. 315, 52 O.O. 206, 116 N.E.2d 300, paragraph two of the syllabus.

As noted above, plaintiff argues that genuine issues of material fact exist, including whether the defendant, as host of the party, negligently allowed horseplay around the pool and failed to properly supervise the guests. We begin with the proposition that "[t]he measure of any duty owed to an injured party is dependent upon the status of that party with respect to the possessor of the premises." Easterling v. Am. Olean Tile Co., Inc. (1991), 75 Ohio App.3d 846, 853, 600 N.E.2d 1088, 1093. The parties in this case do not dispute the fact that the decedent was a social guest at defendant's residence.

In Scheibel v. Lipton (1951), 156 Ohio St. 308, 46 O.O. 177, 102 N.E.2d 453, paragraphs two and three of the syllabus, the Ohio Supreme Court held the following regarding a host's duty to a social guest:

"2. A host is not an insurer of the safety of a guest while upon the premises of the host and there is no implied warranty on the part of a host that the premises to which a guest is invited by him are in safe condition.

"3. A host who invites a social guest to his premises owes the guest the duty (1) to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition."

Thus, the defendant "owed a duty of ordinary care to appellant only to refrain from an act of negligence and to warn of concealed or hidden dangers upon the premises." Hager v. Griesse (1985) 29 Ohio App.3d 329, 331, 29 OBR 456, 458, 505 N.E.2d 982, 985. Further, it is well settled that "[a]n owner or occupier of land owes no duty to warn invitees entering the property of an open and obvious danger on its property." Musa v. Musa (Dec. 10, 1996), Franklin App. No. 96APE07-831, unreported, 1996 WL 715473. The rationale behind this rule is that an open and obvious danger itself serves as a warning and the owner may reasonably expect that individuals entering the premises will discover such danger and take appropriate measures to protect themselves. Id.

The decision in Hager, supra, raised the issue of the duty owed by a host to supervise social guests during a swimming pool party where horseplay resulted in serious injury to a guest. In Hager, the plaintiff, a guest of the defendants, had been drinking and engaged in horseplay with another guest, leading to that individual being thrown into the pool. The plaintiff left for a short time to obtain more...