[Cite as Riley v. Alston, 2013-Ohio-5769.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IRMA RILEY, )
)
PLAINTIFF-APPELLANT, )
) CASE NO. 12 MA 42
V. )
) OPINION
DAVID ALSTON, et al., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 09CV2836
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellant Attorney Matthew T. Fekete
725 Boardman-Canfield Rd., Unit L-1
Youngstown, Ohio 44512
For Defendants-Appellees Attorney Margo S. Meola
100 Federal Plaza East, Suite 926
Youngstown, Ohio 44503-1811
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: December 30, 2013
[Cite as Riley v. Alston, 2013-Ohio-5769.]
DONOFRIO, J.
{¶1} Plaintiff-appellant, Irma Riley, appeals from a Mahoning County
Common Pleas Court judgment granting summary judgment to defendants-
appellees, David and Cora Alston, on Riley’s negligence claim.
{¶2} On Thanksgiving Day in 2008, Riley went to the Alstons’ house after
speaking to Cora Alston and learning that she was making sweet potato pie. Riley
had been friends with the Alstons for many years and, according to Cora, Riley was
always welcome at their house. Riley arrived around 2:00 p.m. She went up the
Alstons’ front steps onto their porch and went into the house through their front door.
Riley stayed and visited with the Alstons for approximately 20 minutes. When Riley
was ready to leave, Cora walked with her to the front porch. As Riley attempted to
step down the porch steps, she fell down the steps to the pavement. Her fall resulted
in injuries to her elbow and shoulder. Riley asserted that one of the floorboards was
weak and caught her shoe causing her to lose her balance.
{¶3} Riley filed a complaint against the Alstons alleging they negligently
failed to construct and/or maintain their porch and she was injured as a result of their
negligence.
{¶4} The Alstons filed a motion for summary judgment asserting there were
no genuine issues of material fact, Riley was a social guest at their home, there was
no actionable defect on the premises, and any condition on the steps was open and
obvious. In support of their motion, the Alstons relied on Riley’s and Cora’s
depositions. Riley filed an opposing memorandum. She relied on her affidavit as
well as the affidavits and expert witness reports of architect Richard Zimmerman.
{¶5} The trial court granted the Alstons’ motion for summary judgment. It
found Riley was a social guest at appellees’ home. The court found Zimmerman’s
report did not have any bearing on the ultimate issues in this case. It found Riley’s
admission that the floorboard, when pressed down, “did not go down very much”
established that the defect was not one which the Alstons should have considered to
be dangerous or a condition which the Alstons should have had reason to believe
Riley would not know about or discover herself. At best, the court concluded, the
defect was a minor or trivial imperfection on the property. Additionally, the court
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found that there was no liability because Riley was deemed to have knowledge of the
condition of the steps since she traversed this “hazard” upon entering the house.
The court found Riley could not claim she did not notice the depression in the
floorboard when she entered the house, yet it became a material, dangerous
condition upon her exit. Thus, the court concluded there was no duty of care owed to
Riley by the Alstons.
{¶6} Riley filed a timely notice of appeal on March 2, 2012. She now raises
a single assignment of error that states:
THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN
GRANTING SUMMARY JUDGMENT AGAINST RILEY ON HER
CLAIM FOR SOCIAL HOST NEGLIGENCE WHERE THE RECORD
EVIDENCE RAISES NUMEROUS GENUINE ISSUES OF MATERIAL
FACT UPON WHICH REASONABLE MINDS CAN REACH
DIFFERENT CONCLUSIONS, BOTH AS TO THE ISSUE OF
NEGLIGENCE AND AS TO THE ISSUE OF PROXIMATE CAUSE.
{¶7} Riley contends summary judgment was not proper because numerous
questions of material fact exist to preclude summary judgment. She raises numerous
arguments in support of her position.
{¶8} First, Riley argues Zimmerman’s affidavits and reports established
there were seven separate residential building code violations existing with the
Alstons’ stairs and porch including loose floorboards on the front edge of the porch, a
broken support joist for the stairs; uneven and faulty risers, a substantial gap
between the landing and the stairs, and a faulty handrail. She points out that
Zimmerman also concluded that the condition of the stairs, floor boards, and handrail
were the proximate and foreseeable causes of her fall. And she notes that
Zimmerman concluded these conditions likely existed for a year and the Alstons must
have known about them. She argues that because the residential building code
requirements were adopted by the City of Youngstown as part of the Municipal Code
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of Ordinances, a violation of the requirements is evidence of negligence.
{¶9} Second, Riley asserts the record contains evidence from which we can
infer the Alstons had knowledge of at least some of the defects. She points to Cora’s
statement that the gap between the front porch decking and the edge of the top step
had always been there.
{¶10} Third, Riley argues the evidence demonstrated she was not aware of
the defects nor would she be likely to discover them herself because many of the
defects were hidden or latent. Specifically, she points to the severed support joist
that created a “springboard effect.” She asserts the Alstons would have notice of it
from everyday use, but she would not because the “springboard effect” did not
happen every time someone stepped on the floorboard.
{¶11} Fourth, Riley notes it is uncontroverted that the Alstons failed to warn
her of any defects.
{¶12} Fifth, Riley contends the trial court erred in making credibility
determinations and finding that the defective conditions were open and obvious when
there was evidence that there were many hidden defects.
{¶13} Sixth, Riley argues the trial court erred in disregarding Zimmerman’s
findings and opinions and instead finding the defects to be “minor or trivial.”
{¶14} Seventh, Riley asserts that whether the Alstons’ negligence was the
proximate cause of her fall and injury is a question for a jury.
{¶15} In reviewing a trial court's decision on a summary judgment motion,
appellate courts apply a de novo standard of review. Cole v. Am. Industries &
Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998).
Thus, we shall apply the same test as the trial court in determining whether summary
judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary
judgment if no genuine issue of material fact exists and when construing the
evidence most strongly in favor of the nonmoving party, reasonable minds can only
conclude that the moving party is entitled to judgment as a matter of law. State ex
rel. Parsons v. Flemming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994). A
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“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
{¶16} A negligence claim requires the plaintiff to prove: (1) duty; (2) breach of
duty; (3) causation; and (4) damages. Anderson v. St. Francis-St. George Hosp.,
Inc., 77 Ohio St.3d 82, 84, 671 N.E.2d 225 (1996).
{¶17} The issue in this case surrounds the duty owed to Riley by the Alstons
and whether they breached that duty.
{¶18} There is no dispute that Riley was a social guest at the Alstons’ house.
A social guest is a person who enters the land of another under an actual invitation,
either express or implied, extended by the host. Williams v. Cook, 132 Ohio App.3d
444, 450, 725 N.E.2d 339 (3d Dist.1999). The landowner owes the social guest a
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. Scheibel v. Lipton, 156
Ohio St. 308, 329, 102 N.E.2d 453 (1951), paragraph three of the syllabus. But “[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.” Id. at paragraph two of the syllabus.
{¶19} We must consider the depositions and affidavits submitted in order to
determine if a genuine issue of material fact exists as to whether the Alstons
breached their duty to Riley.
{¶20} Riley stated that she had no problem going up the steps and onto the
Alstons’ porch on the day in question. (Riley Dep. 33). When she left, Riley took the
same path as she did when she arrived at the Alstons’ house. (Riley Dep. 39). She
stated that as she left, she stepped on a board that was weak or loose and caught
her shoe. (Riley Dep. 36, 38). By “weak board,” Riley stated that she meant that the
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board “went down” when she pressed on it. (Riley Dep. 38). She stated that the
floorboard went down with her weight and sprang back up. (Riley Dep. 57). When
asked how far the floorboard pressed down when she stepped on it, Riley answered,
“Not very much.” (Riley Dep. 58). She stated it was just enough to cause her to lose
her balance. (Riley Dep. 58).
{¶21} Cora estimated that Riley had been to her house nine or ten times.
(Cora Dep. 11). Riley estimated she had been to the Alstons’ house six or seven
times. (Riley Dep. 29). Every time she had visited, Riley went into the house the
same way she did on the day she fell. (Riley Dep. 29, 32). Riley never noticed the
weak spot on the porch before. (Riley Dep. 57).
{¶22} Additionally, Cora stated that no boards were loose on her porch.
(Cora Dep. 17). She stated that she never had any type of problem with the front
porch or steps. (Cora Dep. 17-18). The Alstons had the wooden stairs installed
approximately six years prior to Riley’s fall. (Cora Dep. 20). No one had ever
slipped, tripped, or fallen while walking up or down the front porch steps before.
(Cora Dep. 18). Nor had anyone ever complained of losing their balance when
walking on the steps before. (Cora Dep. 18).
{¶23} Cora also examined some photographs of her porch and steps. She
stated that the gap between the porch decking and the edge of the top stair had
always been there. (Cora Dep. 21). The photographs depict the gap between the
top of the top step and the porch decking. (Exs. A, B, C). The gap is clearly visible
to anyone walking up the front steps. Cora stated that when stepping on the edge of
the decking where the gap is, the boards do not move. (Cora Dep. 22).
{¶24} Riley also submitted the affidavits and reports of architect Richard
Zimmerman.
{¶25} In his initial report, Zimmerman stated that he reviewed the details of
the accident, visited and photographed the steps, and reviewed the applicable codes
and other standards. Zimmerman stated that he conducted his inspection of the steps
on March 31, 2011, almost two and half years after the incident. He cited several
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provisions of the Ohio Residential Code, adopted by the City of Youngstown, dealing
with riser height, tread depth, stairway walking surface, handrail height, handrail
continuity, and handrail grip size. Zimmerman then concluded that the Alstons’ steps
violated these provisions in various ways.
{¶26} Zimmerman went on to opine that the porch floor, at its meeting with the
steps, was not stable or structurally sound. He found that for a substantial portion of
the step width, the porch floorboards were inadequately supported creating a
“springboard” effect. Zimmerman opined that the flex was sufficient to cause
imbalance in the average, unsuspecting person.
{¶27} Zimmerman went on to opine that, on the day of the fall, Riley was
traversing the weakest, inadequately supported area of the porch floorboards,
attempting to navigate a too-high riser, while reaching for a handrail that was too low.
He concluded that the conditions of the porch floorboards, steps, and handrail were
the proximate and foreseeable cause of Riley’s fall and injury. Zimmerman stated
that the conditions were not open and obvious to Riley because she could not be
expected to recognize the “dimensional insufficiencies of the stair components” or the
“structural deficiencies of the porch flooring and supports.”
{¶28} Zimmerman believed that the physical condition of the porch and steps
had been present “for some time.” He believed the Alstons must have been aware of
the specific conditions of the porch floor and steps. Zimmerman opined that the
physical condition of the steps violated the Ohio Residential Code and contributed to
Riley’s injury and there was apparent negligence on the Alstons’ part that also
contributed to Riley’s injury.
{¶29} In his supplemental report, Zimmerman added that a floor joist beneath
the leading edge of the porch floorboards was completely severed. And he stated
that a number of the floorboards had split, rotted, and deteriorated ends. Zimmerman
opined that these defects, along with those cited in his initial report, represented “a
latent and unreasonable danger.” Zimmerman went on to state that none of the
defects were open and obvious, even to a person exercising due caution by looking
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where they were walking.
{¶30} It is important to note several things regarding the evidence here.
{¶31} First, Riley stated that the only cause of her fall was a weak or loose
board that “went down” when she pressed on it, on which she caught her shoe. As to
how far the floorboard went down, Riley stated “not very much.” Thus, Zimmerman’s
opinions that improper riser height, tread depth, stairway walking surface, handrail
height, handrail continuity, and handrail grip size contributed to Riley’s fall are not
relevant. Zimmerman was not there when Riley fell.
{¶32} Second, Zimmerman did not examine the Alstons’ steps until two years
and four months after Riley’s fall. Thus, there is no way to tell if things like a severed
floor joist and split or rotted ends on the floorboards were present at the time of
Riley’s fall. Zimmerman stated that these conditions were present “for some time”
but he did not define how long “some time” was nor did he explain what led him to
that conclusion.
{¶33} Third, Zimmerman stated that the defects he noted in his report were
latent defects and were not open and obvious. And Cora stated that she had never
had any problems with the front porch steps, no one had ever slipped, tripped, or
fallen while walking up or down the front porch steps, and no one had ever
complained of losing their balance. Therefore, there is no evidence that the Alstons
had any knowledge that their steps may have presented “an unreasonable danger”
as any defects were latent.
{¶34} The only condition that Cora stated the Alstons were aware of was the
gap between the top of the top step and the floorboards of the porch. However, as
can be seen from the photographs, this gap was open and obvious to anyone
walking up the front steps. And Riley had walked up the Alstons’ front steps
numerous times, including the day she fell. A property owner owes no duty to warn
those lawfully on the premises of open and obvious dangers. Armstrong v. Best Buy
Co. Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at the syllabus.
{¶35} The Alstons owed a duty to warn Riley, their social guest, of any
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condition on their property that they knew about and should reasonably have
considered dangerous. Yet they had no duty to warn her of “dangers” of which they
were unaware. It has been stated that
[t]he guest is legally nothing more than a licensee, to whom the
possessor owes no duty of inspection and affirmative care to make the
premises safe for his visit. ... The reason usually given is that the guest
understands when he comes that he is placed on the same footing as
one of the family, and must take the premises as the occupier himself
uses them, without any inspection or preparation for his safety; and that
he also understands that he must take his chances as to any defective
condition unknown to the occupier, and is entitled at most to a warning
of dangers that are known.
Hawthorne v. Moore, 2d Dist. No. CA 1762, 1983 WL 4841 (March 4, 1983), quoting
Prosser Torts 4th Ed.
{¶36} Based on the above, summary judgment was proper in this case.
There is not any evidence that the Alstons were aware of a danger and failed to warn
Riley. Moreover, the gap between the top step and the porch floorboard was open
and obvious to anyone who had walked up the steps. Accordingly, Riley’s sole
assignment of error is without merit.
{¶37} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J., concurs.
Waite, J., concurs.