[Cite as Davis v. Smith, 2017-Ohio-113.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
MARILYN J. DAVIS : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff - Appellant : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. -vs- : : ELWARD TEASLEY SMITH, JR., : Case No. 16-CA-50 ADMINISTRATOR OF THE ESTATE OF : MARY E. SMITH, ET AL. : : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 15CV0091
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 9, 2017
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
STEPHEN B. WILSON STEVEN G. CARLINO 35 South Park Place, Suite 150 JOSHUA C. BERNS Newark, Ohio 43055 10 West Broad Street, Suite 2400 Columbus, Ohio 43215 Licking County, Case No. 16-CA-50 2
Baldwin, J.
{¶1} Plaintiff-appellant Marilyn J. Davis appeals from the June 30, 2016
Judgment Entry of the Licking County Court of Common Pleas granting the Motion for
Summary Judgment filed by defendant-appellee Estate of Mary E. Smith.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Marilyn J. Davis is the daughter of Mary E. Smith. On August 17,
2013, appellant went to her mother’s house to assist her mother who had fractured her
hip. While at the residence, appellant fell through a wooden front porch deck as she
walked across the same and a porch board gave way.
{¶3} Mary E. Smith died on January 31, 2014. On January 29, 2015, appellant
had filed a complaint for personal injuries against her mother and against Auto-Owners
Insurance Company, which had issued homeowner’s liability coverage to her mother.
Appellant, on April 13, 2015, filed an amended complaint substituting the administrator of
the estate of her mother as a defendant. Pursuant to a Judgment Entry filed on July 9,
2015, the trial court dismissed appellant’s amended complaint as to Auto-Owners
Insurance Company and Mary E. Smith, the decedent.
{¶4} Appellee Estate of Mary E. Smith, on May 13, 2016, filed a Motion for
Summary Judgment. Appellant filed a memorandum in opposition to the same on June
15, 2016 and appellee filed a reply brief on June 23, 2016.
{¶5} As memorialized in a Judgment Entry filed on June 30, 2016, the trial court
granted appellee’s Motion for Summary Judgment. The trial court, in its Judgment Entry,
found that appellant was a social guest/ licensee and that she had come forth with no Licking County, Case No. 16-CA-50 3
evidence that the decedent was aware that the front porch was in a dangerous condition
or that she should have known it was in a dangerous condition.
{¶6} Appellant now appeals from the trial court’s June 30, 2016 Judgment Entry,
raising the following assignment of error on appeal:
{¶7} THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE’S
MOTION FOR SUMMARY JUDGMENT.
I
{¶8} Appellant, in her sole assignment of error, argues that the trial court erred
in granting appellee’s Motion for Summary Judgment. We disagree.
{¶9} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which
provides, in pertinent part, as follows:
Summary judgment shall be rendered forthwith if the pleading,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.* * * A
summary judgment shall not be rendered unless it appears from such
evidence or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence or stipulation construed
most strongly in the party's favor. Licking County, Case No. 16-CA-50 4
{¶10} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element of
the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107,
662 N.E.2d 264. The nonmoving party then has a reciprocal burden of specificity and
cannot rest on the allegations or denials in the pleadings, but must set forth “specific facts”
by the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.
Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).
{¶11} Pursuant to the above rule, a trial court may not enter summary judgment if
it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,
1997-Ohio-259, 674 N.E.2d 1164, citing Dresher, supra.
{¶12} The issue in this case is whether the decedent was negligent. In order to
establish a claim for negligence, a plaintiff must show: (1) a duty on the part of the
defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury
proximately resulting from the breach. Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539
N.E.2d 614 (1989).
{¶13} In a premises liability case, the relationship between the owner or occupier
of the premises and the injured party determines the duty owed. Gladon v. Greater
Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996–Ohio–137, 662 N.E.2d
287; Shump v. First Continental–Robinwood Assocs., 71 Ohio St.3d 414, 417, 1994-Ohio-
427, 644 N.E.2d 291. Ohio adheres to the common-law classifications of invitee, licensee,
and trespasser in cases of premises liability. Shump, supra. Licking County, Case No. 16-CA-50 5
{¶14} Appellant argues that she was an invitee. An invitee is defined as a visitor
who rightfully enters and remains on the premises of another at the express or implied
invitation of the owner and for a purpose beneficial to the owner. Broka v. Cornell's IGA
Foodliner Inc., 5th Dist. Richland No. 12CA100, 2013–Ohio–2506, ¶ 20 citing Gladon,
supra at 315, 662 N.E.2d 287. Appellee, however, argues that appellant was a licensee.
A licensee is a person who enters another's property “by permission or acquiescence, for
his own pleasure or benefit, and not by invitation.” Light v. Ohio Univ., 28 Ohio St.3d 66,
68, 502 N.E.2d 611 (1986).
{¶15} Despite the fact that a social guest is normally “invited” to the property, he
or she is not an invitee within the legal meaning of the term, as his use of the premises is
extended merely as a personal favor, and is not for a business purpose of the landowner.
Hager v. Griesse, 29 Ohio App.3d 329, 330, 505 N.E.2d 982 (1985). Thus, a social guest
is a licensee. Id.
{¶16} We concur with the trial court that appellant was not an invitee, but rather
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[Cite as Davis v. Smith, 2017-Ohio-113.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
MARILYN J. DAVIS : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff - Appellant : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. -vs- : : ELWARD TEASLEY SMITH, JR., : Case No. 16-CA-50 ADMINISTRATOR OF THE ESTATE OF : MARY E. SMITH, ET AL. : : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 15CV0091
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 9, 2017
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
STEPHEN B. WILSON STEVEN G. CARLINO 35 South Park Place, Suite 150 JOSHUA C. BERNS Newark, Ohio 43055 10 West Broad Street, Suite 2400 Columbus, Ohio 43215 Licking County, Case No. 16-CA-50 2
Baldwin, J.
{¶1} Plaintiff-appellant Marilyn J. Davis appeals from the June 30, 2016
Judgment Entry of the Licking County Court of Common Pleas granting the Motion for
Summary Judgment filed by defendant-appellee Estate of Mary E. Smith.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Marilyn J. Davis is the daughter of Mary E. Smith. On August 17,
2013, appellant went to her mother’s house to assist her mother who had fractured her
hip. While at the residence, appellant fell through a wooden front porch deck as she
walked across the same and a porch board gave way.
{¶3} Mary E. Smith died on January 31, 2014. On January 29, 2015, appellant
had filed a complaint for personal injuries against her mother and against Auto-Owners
Insurance Company, which had issued homeowner’s liability coverage to her mother.
Appellant, on April 13, 2015, filed an amended complaint substituting the administrator of
the estate of her mother as a defendant. Pursuant to a Judgment Entry filed on July 9,
2015, the trial court dismissed appellant’s amended complaint as to Auto-Owners
Insurance Company and Mary E. Smith, the decedent.
{¶4} Appellee Estate of Mary E. Smith, on May 13, 2016, filed a Motion for
Summary Judgment. Appellant filed a memorandum in opposition to the same on June
15, 2016 and appellee filed a reply brief on June 23, 2016.
{¶5} As memorialized in a Judgment Entry filed on June 30, 2016, the trial court
granted appellee’s Motion for Summary Judgment. The trial court, in its Judgment Entry,
found that appellant was a social guest/ licensee and that she had come forth with no Licking County, Case No. 16-CA-50 3
evidence that the decedent was aware that the front porch was in a dangerous condition
or that she should have known it was in a dangerous condition.
{¶6} Appellant now appeals from the trial court’s June 30, 2016 Judgment Entry,
raising the following assignment of error on appeal:
{¶7} THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE’S
MOTION FOR SUMMARY JUDGMENT.
I
{¶8} Appellant, in her sole assignment of error, argues that the trial court erred
in granting appellee’s Motion for Summary Judgment. We disagree.
{¶9} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which
provides, in pertinent part, as follows:
Summary judgment shall be rendered forthwith if the pleading,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.* * * A
summary judgment shall not be rendered unless it appears from such
evidence or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence or stipulation construed
most strongly in the party's favor. Licking County, Case No. 16-CA-50 4
{¶10} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element of
the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107,
662 N.E.2d 264. The nonmoving party then has a reciprocal burden of specificity and
cannot rest on the allegations or denials in the pleadings, but must set forth “specific facts”
by the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.
Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).
{¶11} Pursuant to the above rule, a trial court may not enter summary judgment if
it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,
1997-Ohio-259, 674 N.E.2d 1164, citing Dresher, supra.
{¶12} The issue in this case is whether the decedent was negligent. In order to
establish a claim for negligence, a plaintiff must show: (1) a duty on the part of the
defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury
proximately resulting from the breach. Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539
N.E.2d 614 (1989).
{¶13} In a premises liability case, the relationship between the owner or occupier
of the premises and the injured party determines the duty owed. Gladon v. Greater
Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996–Ohio–137, 662 N.E.2d
287; Shump v. First Continental–Robinwood Assocs., 71 Ohio St.3d 414, 417, 1994-Ohio-
427, 644 N.E.2d 291. Ohio adheres to the common-law classifications of invitee, licensee,
and trespasser in cases of premises liability. Shump, supra. Licking County, Case No. 16-CA-50 5
{¶14} Appellant argues that she was an invitee. An invitee is defined as a visitor
who rightfully enters and remains on the premises of another at the express or implied
invitation of the owner and for a purpose beneficial to the owner. Broka v. Cornell's IGA
Foodliner Inc., 5th Dist. Richland No. 12CA100, 2013–Ohio–2506, ¶ 20 citing Gladon,
supra at 315, 662 N.E.2d 287. Appellee, however, argues that appellant was a licensee.
A licensee is a person who enters another's property “by permission or acquiescence, for
his own pleasure or benefit, and not by invitation.” Light v. Ohio Univ., 28 Ohio St.3d 66,
68, 502 N.E.2d 611 (1986).
{¶15} Despite the fact that a social guest is normally “invited” to the property, he
or she is not an invitee within the legal meaning of the term, as his use of the premises is
extended merely as a personal favor, and is not for a business purpose of the landowner.
Hager v. Griesse, 29 Ohio App.3d 329, 330, 505 N.E.2d 982 (1985). Thus, a social guest
is a licensee. Id.
{¶16} We concur with the trial court that appellant was not an invitee, but rather
was a social guest/licensee. As noted by the trial court, appellant “was a member of
decedent’s family….This is not analogous to the invitee who is invited onto the premises
for a business transaction.”
{¶17} The Ohio Supreme Court, in Scheibel v. Lipton, 156 Ohio St. 308, 102
N.E.2d 453 (1951) held in paragraph three of the syllabus as follows:
A host owes a social guest the duty “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 “to warn the guest of
any condition of the premises which is known to the host and which one of Licking County, Case No. 16-CA-50 6
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.”
{¶18} A host, however, is not an insurer of the safety of a guest, 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. Id. at paragraph two of the syllabus. Rather, a guest assumes the
ordinary risks which attach to the premises.
{¶19} Thus, in the case sub judice, the decedent’s duty was to “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 “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.”
{¶20} In the case sub judice, appellant testified during her deposition that her
mother did not use the front porch, but rather went out the back. She further testified that
the front porch did not look unsafe and that “it seemed solid whenever you walked on it.”
Deposition at 41. The following is an excerpt from her deposition testimony:
{¶21} Q: Do you recall when you walked on it that day or the week earlier when
you had mowed the yard, and I’m going to use those two times because it doesn’t really
sound, again, that you or anybody else regularly used this porch, do you recall if it creaked
or made any noises?
{¶22} A: Not that I can remember, no.
{¶23} Q: Okay. As you walked across it, did it feel uneasy or did it feel relatively
solid? Licking County, Case No. 16-CA-50 7
{¶24} A: It felt solid, yes.
{¶25} Q: So you walked out this porch, this door right here at the bottom of Exhibit
1 on August 17th, 2013?
{¶26} A: Yes.
{¶27} Q: To check on Aydin because he needed his shoe tied. You took a few
steps, it appeared solid, and then when you reached this step here at the bottom of Exhibit
1 where there’s a plank missing in the photograph you went straight through?
{¶28} A: Exactly.
{¶29} Deposition at 43.
{¶30} As noted by the trial court, appellant has not produced any evidence that
the decedent was aware that the front porch was in a dangerous condition or that she
should have known that it was in a dangerous condition.
{¶31} Based on the foregoing, we find that the trial court did not err in granting
appellee’s Motion for Summary Judgment because reasonable minds can come to but
one conclusion and that conclusion is adverse to appellant, the party against whom the
motion for summary judgment is made.
{¶32} Appellant’s sole assignment of error is, therefore, overruled. Licking County, Case No. 16-CA-50 8
{¶33} Accordingly, the judgment of the Licking County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Farmer, P.J. and
Gwin, J. concur.