[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.
