[Cite as McFadden v. Discerni, 2023-Ohio-1086.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY
PERRY W. MCFADDEN, JR., CASE NO. 2022-T-0019
Plaintiff-Appellant, Civil Appeal from the - vs - Court of Common Pleas
JOSEPH DISCERNI, et al., Trial Court No. 2021 CV 00102 Defendants-Appellees.
OPINION
Decided: March 31, 2023 Judgment: Affirmed in part, reversed in part, and remanded
Michael A. Ognibene, 204 Monroe Street, N.W., P.O. Box 4273, Warren, OH 44482 (For Plaintiff-Appellant).
Adam E. Carr and Eric K. Grinnell, Carr Law Office, LLC, 5824 Akron-Cleveland Road, Suite A, Hudson, OH 44236 (For Defendants-Appellees).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Perry W. McFadden, appeals the trial court’s judgment entry
granting summary judgment in favor of Appellees, Joseph Discerni and Katherine Miskov,
on McFadden’s claim for negligence.
{¶2} On January 27, 2021, McFadden filed a Complaint against Discerni and
Miskov. The Complaint alleged that he was an invitee to their house and, while leaving
the residence, exterior steps collapsed causing him to sustain an injury. It alleged they
were negligent in failing to maintain or repair the stairs and failing to warn him of the
hazardous condition. Appellees filed an Answer on March 16, 2021. {¶3} Appellees filed a Motion for Summary Judgment on October 20, 2021, in
which they argued that there was no genuine issue of material fact since there was no
visible defect in the stairs or other indication that the stairs presented a danger. They
further contended that, if there was a dangerous condition, McFadden was aware of it,
thus preventing a negligence claim through the open and obvious doctrine. McFadden
filed a Memorandum in Opposition, in which he argued that he had made Discerni aware
of an issue with the stairs and Discerni led him to believe the steps would be inspected.
{¶4} The following was established through deposition testimony. McFadden
and Discerni were friends for a number of years. McFadden had been to Discerni and
his wife, Miskov’s, residence many times and, according to McFadden, he visited about
once a week. McFadden testified that he went to the house on August 3, 2019, because
he had purchased corn, stating: “I was going there to bring --- just a visit, but at the time
I bought a bunch of corn and gave some to them.” When arriving at the residence,
McFadden used the outdoor staircase leading to the deck and a sliding glass door on the
back side of the house. He walked up the steps, gave the corn to Miskov, made “small
talk,” and then walked back down the steps. At that time, a step “gave way.” He suffered
a foot injury requiring surgery. Discerni confirmed that he was aware McFadden had
visited his home that day to bring corn and that the stair gave way during that visit.
{¶5} McFadden testified that he had concerns with the step through which he fell
on prior visits, observing that it had been “a little shaky” and when he stepped on it, “it
kind of would rock back and forth * * * just a little bit * * * on the front and the back side of
the step it would rock a little bit. It wasn’t sturdy.” He talked to Discerni about the stairs
and said that he “ought to take a look at that step. It might be getting a little squeaky on
Case No. 2022-T-0019 us.” In his affidavit, McFadden stated that he used the steps because he believed that
“by that time, * * * Discerni had the steps inspected and determined they were safe.”
{¶6} Discerni testified that the wooden deck and stairs where the incident
occurred existed when he purchased the house in 2012 and he had not done
maintenance on them. Discerni testified that McFadden had “mentioned” the steps to him
in the past, stating that he should check them. Discerni did not believe the issue needed
to be resolved, the steps did not seem loose, and he had no intention of having them
inspected. He believed McFadden may have caused the stairs to creak because “he is
a big guy.” Discerni stated that he had no knowledge they would break, used the stairs
while carrying his son, and had a party with people on the deck three months prior and
had no problems.
{¶7} An affidavit of Jon Pina, a “safety professional,” was attached to the
response to summary judgment. Pina observed that the steps appeared to be “badly
weathered with cracks and peeling lumber” and noted that the hazardous nature of the
steps would be apparent to building inspectors or contractors.
{¶8} On February 11, 2022, the court issued a Judgment Entry granting
summary judgment in favor of appellees. In the entry, the court found that even if the
creaky stair gave rise to a hazardous condition requiring appellees to warn guests, “the
duty to warn was obviated by the open and obvious doctrine.” It found it “would be unfair
to charge Defendants with constructive knowledge of the danger, while at the s[a]me time
absolving Plaintiff of taking appropriate measures to protect himself based upon that
same knowledge.”
{¶9} McFadden timely appeals and raises two assignments of error.
Case No. 2022-T-0019 {¶10} “[1.] The trial court erred in granting defendants-appellees’ motion for
summary judgment where genuine issues of material fact exist as to whether the condition
causing plaintiff-appellant’s injuries was an open and obvious danger.
{¶11} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the
evidence shows “that there is no genuine issue as to any material fact” 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 that conclusion
is adverse to the party against whom the motion for summary judgment is made, that
party being entitled to have the evidence * * * construed most strongly in the party’s favor.”
{¶12} A trial court’s decision to grant summary judgment is reviewed by an
appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate court
to conduct an independent review of the evidence before the trial court without deference
to the trial court’s decision.” Peer v. Sayers, 11th Dist. Trumbull No. 2011-T-0014, 2011-
Ohio-5439, ¶ 27.
{¶13} “[I]n order to establish a cause of action for negligence, the plaintiff must
show (1) the existence of a duty, (2) a breach of duty, and (3) an injury proximately
resulting therefrom.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573,
788 N.E.2d 1088, ¶ 8. “While negligence actions involve both questions of law and fact,
the existence of a duty is in the first instance a question of law for the trial court.” Frano
v. Red Robin Internatl., Inc., 11th Dist. No. 2008-L-124, 181 Ohio App.3d 13, 2009-Ohio-
685, 907 N.E.2d 796, ¶ 65, citing Clemets v. Heston, 20 Ohio App.3d 132, 485 N.E.2d
287 (6th Dist.1985) at paragraph one of the syllabus.
Case No. 2022-T-0019 {¶14} In his first assignment of error, McFadden argues that whether the danger
was open and obvious is a factual determination that should not have been decided at
this stage of the proceedings since whether a creaky step poses a danger is a fact-driven
inquiry best decided by a jury. He also contends that even if the stairs presented an open
and obvious danger, attendant circumstances prevent the application of the doctrine.
{¶15} Under the open and obvious doctrine, the “nature of the hazard itself is
sufficient warning” and no duty is imposed on the homeowner because he “may
reasonably expect individuals encountering the condition to discover the danger and take
appropriate measures to protect themselves from it.” Watson v. Bradley, 2017-Ohio-431,
84 N.E.3d 97, ¶ 18 (11th Dist.), citing Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642,
644, 597 N.E.2d 504 (1992); accord Costilla v. LeMC Enterprises, 11th Dist. Portage No.
2003-P-0116, 2004-Ohio-6944, ¶ 12. “A finding that the open and obvious doctrine
applies would, by itself, warrant a grant of summary judgment since it negates any duty
owed by the defendant.” Hamrock v. Ams, 2020-Ohio-1335, 153 N.E.3d 506, ¶ 25 (11th
Dist.). “Whether a person owes a duty of care to protect individuals against an open and
obvious danger is generally for a court to decide. However, whether the hazard in a case
is open and obvious is a fact-driven issue that ‘may involve a genuine issue of material
fact, which a trier of fact must resolve.’” Gaffney v. Soukup, 11th Dist. Geauga No. 2016-
G-0104, 2017-Ohio-7362, ¶ 16, quoting Henry v. Dollar Gen. Store, 2nd Dist. Greene No.
2002-CA-47, 2003-Ohio-206, ¶ 10.
{¶16} The open and obvious test “properly considers the nature of the dangerous
condition itself, as opposed to the nature of the plaintiff’s conduct in encountering it.”
Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 13.
Case No. 2022-T-0019 It has been held, however, that “[e]vidence that a plaintiff actually knew of the allegedly
dangerous condition can be used in evaluating the open and obvious doctrine.” Mayhew
v. Massey, 2017-Ohio-1016, 86 N.E.3d 758, ¶ 17 (7th Dist.). The doctrine has been
applied not only where a person would be expected to discover a hazard, but also where
the plaintiff “had actual knowledge of a particular hazard or condition.” St. Germain v.
Newell, 3d Dist. Marion No. 9-5-14, 2015-Ohio-3713, ¶ 18-24 (rejecting appellant’s claim
that a loose railing was “not objectively open and obvious” when he knew of the railing’s
condition). Stewart v. AMF Bowling Ctrs., Inc., 3d Dist. Hancock No. 5-10-16, 2010-Ohio-
5671, ¶ 16-17. This court has found that “when a guest admits ‘knowing of the danger,
summary judgment is easily granted. Clearly, the danger is open and obvious when the
invitee admits to having had actual knowledge of the danger prior to being injured by that
danger.’” Gaffney at ¶ 18, citing Zuzan v. Shutrump, 155 Ohio App.3d 589, 2003-Ohio-
7285, 802 N.E.2d 683, ¶ 6 (7th Dist.).
{¶17} Here, there is a genuine issue of material fact of whether McFadden knew
there was a danger. Even though McFadden knew a step was “creaky,” and had
mentioned it to Discerni on a prior visit, it is not clear whether he knew the steps were
“dangerous;” he only knew one of them was “creaky” and “a little shaky” when he used it.
It is not, on this record, “open and obvious” that a creaky or shaky step is dangerous or
that McFadden knew it to be. He only suggested that Discerni have the steps looked at,
but there is no clear evidence that he found the steps “dangerous” or that he stopped
using them. Contrary to McFadden’s argument otherwise, there is also no evidence that
Discerni or Miskov perceived the steps as dangerous because they testified to frequently
using them while holding their baby.
Case No. 2022-T-0019 {¶18} In this instance, the facts demonstrate that reasonable minds could reach
different conclusions about the obviousness of the danger and whether McFadden had
“actual knowledge” of a danger. A reasonable factfinder could conclude that he did not
perceive the steps as “dangerous” because he continued using them after hearing them
creak weeks earlier. Similarly, a reasonable factfinder could alternatively conclude that
he did perceive the steps as “dangerous” because he told Discerni on a prior visit that he
had “concerns” about the steps. Lastly, a reasonable factfinder could also conclude that
the steps were not openly and obviously “dangerous” because the homeowners
frequently used them and did not consider them a “danger”. However, those are
questions of fact for the jury.
{¶19} This is not to suggest that every case involving the open and obvious
doctrine survives a motion for Summary Judgment. This case is heavily fact-driven and
involves a genuine issue of material fact, which a trier of fact must resolve. McFadden’s
“actual knowledge” of the steps’ condition and whether a reasonable person exercising
ordinary care in the same circumstances would perceive the steps as a “danger” are
questions of fact for a jury. In other words, whether McFadden had “sufficient warning”
either from the steps’ condition or from his knowledge of the steps is a genuine issue of
material fact. Summary Judgment was not proper because there are genuine issues of
material fact as to whether the steps were “open and obviously” “dangerous” and whether
McFadden had “actual knowledge” that the steps were “dangerous.”
{¶20} Appellant’s first assignment of error is with merit. We reverse and remand
to the trial court consistent with this opinion.
{¶21} “[2.] The trial court erred in not finding plaintiff-appellant Perry McFadden
Case No. 2022-T-0019 to be an invitee upon defendants-appellees’ premises at the time of the injury.”
{¶22} “A social guest is someone the owner or occupier of land invites onto the
property for the purpose of social interaction.” Gaffney, 2017-Ohio-7362, at ¶ 12. By
contrast, the Ohio Supreme Court “has defined a business invitee as
‘one rightfully on the premises of another for the purposes in which the possessor of the
premises has a beneficial interest.’” Bishop v. Nelson Ledges Quarry Park, Ltd., 11th
Dist. Portage No. 2004-P-0008, 2005-Ohio-2656, ¶ 34, quoting Sheibel v. Lipton (1951),
156 Ohio St. 308, 102 N.E.2d 453, at paragraph one of the syllabus.
{¶23} “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.” Sorensen v. DeFranco, 11th Dist. No. 2013-L-038,
2013-Ohio-5829, 6 N.E.3d 664 at ¶ 40, citing Scheibel at paragraph three of the syllabus.
{¶24} In the present matter, we find that the record supports a conclusion that
McFadden was present at the property as a social guest for the purpose of social
interaction rather than an invitee. The testimony demonstrated unequivocally that
McFadden was friends with the appellees and visited their home on a frequent basis.
McFadden testified that, on the particular occasion in question, he had purchased corn
and was bringing some to give to appellees. No testimony suggested that McFadden had
brought the corn at the request of Miskov. While the gift of corn was a small benefit, it
Case No. 2022-T-0019 was part of a social interaction with good friends which included small talk with Miskov
while delivering the corn. In similar circumstances, where a benefit was construed in the
context of a friendship, courts have found there is a social guest relationship. This court
found that a longtime friend who was housesitting for a homeowner free of charge was a
social guest rather than an invitee, observing that the house sitter was not on the property
“for any business purpose.” Sorensen at ¶ 42; Accord Saliba v. Miley, 7th Dist. Noble No.
21 NO 0481, 2021-Ohio-3638, ¶ 22-23 (social guest relationship existed where plaintiff
“had been stopping by to have Michael weld an item for him and check on an electrical
issue,” and the parties were friends who spent time at each other’s houses socially and
did welding and electronic jobs for each other without pay).
{¶25} We observe that while invitees have been characterized as “business
visitors,” an invitee relationship has been found in some circumstances that would not
typically be characterized as a “business” relationship. For example, this court has held
that where a brother-in-law was visiting the home to give him a ride to a doctor’s
appointment, an invitee relationship existed. Fabian v. May, 11th Dist. Trumbull No.
2020-T-0071, 2021-Ohio-2882, ¶ 8; Bullucks v. Moore, 1st Dist. Hamilton No. C-020187,
2002-Ohio-7332, ¶ 8 (an issue of fact existed as to whether the plaintiff was an invitee
where the purpose for visiting the home was to take her mother to the store). We find
these cases distinguishable and they do not support a holding that an invitee relationship
existed in the present case. In those cases, there is a lack of evidence to show a social
interaction during the visit and the invitee was present for the express purpose of
providing the benefit of the ride. Here, although a “benefit” was bestowed, McFadden
was giving an unrequested gift as part of his social relationship with the defendants and
Case No. 2022-T-0019 stated that his purpose for being there was to “visit.” In circumstances where a minor
benefit that was not requested by the homeowner was given, it has been determined that
visitor was not an invitee. Karlovich v. Nicholson, 11th Dist. Lake No. 98-L-097, 1999 WL
960583, *4 (Sept. 30, 1999) (where the plaintiff provided care for horses at the property
and she was not asked to perform this activity, her actions were “admittedly voluntary with
no expectation of compensation or other return,” and, thus, she was not an invitee);
Scherting v. St. Patrick’s of Heathersdowns Parish, 6th Dist. Lucas No. L-95-239, 1996
WL 38811, *2 (Feb. 2, 1996) (plaintiff’s intention to perform volunteer tasks at a school
did not make her an invitee since there was nothing to suggest she provided this
assistance at the request of the defendant and it was “too attenuated to classify her as a
business invitee”). Further, if we accepted a broad definition of bestowing a “benefit”
upon the landowner, it could be maintained that even visiting and talking with a friend falls
under this term, which would eliminate the social guest classification entirely. Reddick v.
Said, 11th Dist. Lake No. 2011-L-067, 2012-Ohio-1885, ¶ 41 (“a social guest is thought
to be on the premises presumably giving the possessor some personal benefit, intangible
though it may be. Ard v. Fawley, 135 Ohio App.3d 566, 571, 735 N.E.2d 14 (3rd
Dist.1999).”) We decline to apply this status as narrowly as McFadden requests and
determine that he was a social guest.
{¶26} The trial court did not commit error in finding McFadden to be a social guest
at the time of the injury.
{¶27} McFadden’s second assignment of error is without merit.
Case No. 2022-T-0019 {¶28} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, granting summary judgment in favor of Discerni and Miskov, is affirmed
in part, reversed in part, and remanded.
MARY JANE TRAPP, J., concurs,
MATT LYNCH, J., dissents with a Dissenting Opinion.
{¶29} I dissent from the majority’s decision to remand this matter to the trial court
for further proceedings based on a conclusion that the danger posed to McFadden was
not open and obvious. Since a homeowner cannot reasonably be expected to warn a
social guest of a condition that the homeowner did not consider dangerous and of which
the social guest was already aware, summary judgment was properly granted and it is
unnecessary for this matter to be prolonged given that there are no remaining factual
issues to be resolved.
{¶30} As the majority correctly concludes, McFadden was a social guest at the
Discerni and Miskov residence. A homeowner owes a social guest the duty “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.” (Emphasis added.) Scheibel v. Lipton, 156 Ohio St.
Case No. 2022-T-0019 308, 102 N.E.2d 453 (1951), paragraph three of the syllabus. There is no factual dispute
that the only condition known to the homeowners, Discerni and Miskov, was exactly the
one about which McFadden had advised them: the creaky or shaky step. At most, they
could only be required under the law to advise him of that condition. However, they were
only required to make such an advisement if they had reason to believe McFadden was
not aware of such condition, which is obviously not the case here. Defendants have a
duty to warn plaintiffs only of conditions they “had reason to believe the [plaintiffs] did not
know about and could not discover.” Ochall v. McNamer, 2016-Ohio-8493, 79 N.E.3d
1215, ¶ 71 (10th Dist.).
{¶31} It is evident McFadden was aware of the exact information he
communicated to Discerni. There can be no reasonable question as to whether it was
necessary to advise McFadden of the condition as a reminder or to ensure his knowledge
since McFadden testified that he visited the house on a weekly basis. To hold otherwise
would place an unreasonable requirement upon homeowners. It can hardly be said that
we should develop a standard where a homeowner needs to advise a weekly guest that
there might be a danger due to a condition that guest knows about because that guest is
the only one who believes it presents a concern. Discerni did not believe there was a
danger with the step while McFadden expressed that someone “ought to take a look at”
it.
{¶32} Even presuming that the question about whether the condition of the step
was actually known by the parties to be dangerous is subject to dispute, this does not
change the analysis as to this issue. In these circumstances, although unique, common
sense dictates the appropriate outcome. A homeowner does not owe a duty to a social
Case No. 2022-T-0019 guest to investigate potential sources of danger or insure the safety of the guests on their
premises; their duty relates to ensuring that visitors are aware of known conditions.
Estate of Vince v. Estate of Smallwood, 11th Dist. Trumbull No. 2005-T-0017, 2006-Ohio-
1697, ¶ 21, citing Scheibel at paragraph two of the syllabus. McFadden was clearly and
unquestionably aware of the same facts as Discerni and Miskov. What more is there to
be determined at trial? If the step is found not to be a dangerous condition, then there
was no duty to warn McFadden. If it is found to be a dangerous condition, it does not
follow that the defendants knew of its danger such that they could have advised
McFadden. Presuming we cannot determine the danger of the step based on the facts
before us, it follows that we cannot impart Miskov and Discerni with knowledge of such a
danger (or reasonable belief of a danger) while simultaneously finding that McFadden did
not have any knowledge of such danger.
{¶33} In any event, Discerni and Miskov are simply not required to transmit
information of which they are unaware to a social guest. “Liability in premises liability
cases stems from superior knowledge of the condition of the premises.” (Citation
omitted.) Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn.2004). Where there is no
superior knowledge, it is unreasonable to hold the defendants liable. See Rutkai v.
Freeland, 9th Dist. Summit No. 24267, 2008-Ohio-6440, ¶ 45 (there was no breach of a
duty of care to a social guest where there was a lack of evidence to show that the
defendant had superior knowledge about the danger posed to plaintiff). The evidence
does not indicate that the defendants had any superior knowledge of the danger. Discerni
testified that he did not believe there was a danger and the defendants continued to use
the steps, transporting their child up these steps, after McFadden advised them of the
Case No. 2022-T-0019 creaky sound. It has been held that a defendant met his burden in regard to a social
guest where he warned the plaintiff “regarding the only situation that he believed might
be dangerous.” Id. at ¶ 41. Even where the danger of the situation is unclear, the property
owner is absolved of liability where the plaintiff is aware of the potential danger.
{¶34} The majority focuses primarily on the danger posed for the purposes of
applying the open and obvious doctrine. It concludes that while the step’s condition was
known to McFadden, the danger this condition presented was not known. It is not
necessary to determine whether there was an open and obvious danger since, as noted
above, there was no violation of the duty owed to a social guest in these circumstances.
Since McFadden actually knew of the step’s condition, we do not need to find that there
was an open and obvious danger.
{¶35} Nonetheless, too fine of a line is being drawn as to when a condition
presents an open and obvious danger. When a person observes darkness or ice, they
are presumed to know that some danger is associated with these conditions, even if the
danger is associated with failing to proceed with caution rather than solely due to the
condition itself. Although McFadden did not know exactly what outcome might occur if
he used the step, he knew there was a squeak when he utilized it and in fact had some
concern with the condition such that he advised the homeowners of the need to
investigate it further. It has been held that “‘awareness of a general unsafe condition’”
and recognition of a “potential for danger” in a condition satisfies the open and obvious
doctrine. (Citation omitted.) Cornell v. Mississippi Lime Co., 95 N.E.3d 923, 2017-Ohio-
7160, ¶ 70-71 (7th Dist.).
Case No. 2022-T-0019 {¶36} This situation can be compared to those in which a party claims “a defect
was so insubstantial so as to go unnoticed upon entering a premises and then conversely
claim[s] that the condition was unreasonably dangerous so as to impose liability for a fall
occurring upon leaving the premises.” Such a claim has been found to lack merit. Zuzan
v. Shutrump, 155 Ohio App.3d 589, 2003-Ohio-7285, 802 N.E.2d 683, ¶ 12 (7th Dist.).
McFadden cannot successfully advance an argument that the danger was not known to
him but that it was also simultaneously known to the homeowners for the purposes of
imposing liability.
{¶37} Based on the foregoing, and when construing the evidence in a light most
favorable to McFadden, there are no factual issues to resolve. Under the majority’s
interpretation, the homeowners must undergo the expense of continued litigation and a
trial because the plaintiff was injured on a step that he believed to pose a risk yet chose
to use anyway. Since the homeowners unquestionably did not have any superior
knowledge of the condition which they failed to provide to McFadden, there was no breach
of a duty that could justify a verdict in his favor. For these reasons, I respectfully dissent.
Case No. 2022-T-0019