Gentry v. Collins

[Cite as Gentry v. Collins, 2013-Ohio-63.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
JENNIFER GENTRY, et al., :
Plaintiffs-Appellants, : CASE NO. CA2012-06-048
: OPINION
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:
JASON COLLINS, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 09 CV 74659
Michael D. Weisensel, 2200 Kroger Bldg., 1014 Vine Street, Cincinnati, Ohio 45202, for
plaintiffs-appellants
Jason Collins, 7650 Dickey Road, Middletown, Ohio 45042, defendant, pro se
Garvey Shearer PSC, David A. Shearer, Jr., 300 Buttermilk Pike, Suite 336, Ft. Mitchell, KY
41017, for defendants-appellees, Rhonda G. and John Wetzig
Sebaly, Schillito & Dyer, John Woodard, Scott S. Davies, 1900 Kettering Tower, 40 North
Main Street, Dayton, Ohio 45402, for defendant, Aetna Life Insurance Co.
Lisa A. Pavlik, ACS Recovery Services, 1301 Basswood Road, Schaumburg, IL 60173, for
defendant, Medical Mutual of Ohio
RINGLAND, J.
{¶ 1} Plaintiffs-appellants, M. Jennifer Gentry, along with her husband, Robert
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Gentry, and two minor children, appeal a decision in the Warren County Court of Common
Pleas granting summary judgment to defendants-appellees, John and Rhonda Wetzig. For
the reasons outlined below, we affirm.
{¶ 2} On June 28, 2008, the Wetzigs held a party at their house where Jennifer and
Robert Gentry were social guests. They arrived at the Wetizigs around 6 p.m. and were
served dinner around 8 p.m. In addition to dinner, the Wetzigs served alcohol. It is
undisputed that almost all of the guests were drinking, including Jennifer Gentry. Jennifer
Gentry admittedly drank a "few" peach slammers provided by the Wetzigs, and also had four
or five beers that she brought to the Wetzigs.
{¶ 3} An aboveground swimming pool was located on the Wetzigs' premises. While
some of the guests enjoyed the pool, Jennifer Gentry had no intention of swimming that
evening. The Wetzigs contend that there were two flood lights penetrating from the house to
the pool, tiki torches around the pool, and lights in the pool. Jennifer Gentry contends that
the area around the pool was dark and not well-lit.
{¶ 4} Among the approximately 25 guests attending the party was Jason Collins, who
arrived at the party around dusk. While Jennifer Gentry had only one previous interaction
with Collins during which he had behaved appropriately, she remembered his entrance at the
Wetzigs and described him as "loud and obnoxious." Sometime around 11 p.m., Jennifer
Gentry was leaning against the outside of the pool talking to other guests when an
intoxicated Collins picked her up and threw her into the pool. After yelling some expletives,
Jennifer Gentry remained in the pool for several minutes. Robert Gentry confronted Collins,
and asked why he threw Jennifer Gentry into the pool. Collins allegedly responded, "John
told me to." Prior to hoisting Jennifer Gentry into the pool, Collins had thrown at least one
other person into the pool.
{¶ 5} When Jennifer Gentry decided to leave the pool after approximately two to
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three minutes, she climbed up a set of stairs that was located inside of the pool. At the top of
the stairs, there was a platform. To leave the platform, there was a ladder going down the
outside of the pool. After Jennifer Gentry reached the platform, she somehow fell to the
ground and injured her left knee and leg.
{¶ 6} To compensate for the injuries and loss of consortium, on June 25, 2009,
Jennifer Gentry, Robert Gentry, and their two minor children, filed a complaint alleging
negligence on the part of the Wetzigs. The complaint also named Collins and several other
parties as defendants. However, Collins had filed for bankruptcy, which caused the case to
be stayed. Subsequent to the stay being lifted, Gentry voluntarily dismissed the claims
against Collins and the other parties. In preparation for litigation, Jennifer Gentry, Robert
Gentry, Rhonda Wetzig, and John Wetzig were all deposed.
{¶ 7} On February 16, 2012, the Wetzigs filed a motion for summary judgment, which
the trial court granted. The trial court found that the Wetzigs did not breach any duty, and
any evidence to be presented regarding the statement John Wetzig allegedly made to Collins
was inadmissible as hearsay. It is from the trial court's granting of summary judgment that
the Gentrys now appeal, and assert one assignment of error for review.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT COMMITTED ERROR IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF APPELLEES JOHN & RHONDA WETZIG.
Argument
{¶ 10} The Gentrys contend that the trial court erred in granting summary judgment to
the Wetzigs because the Wetzigs were negligent in several respects. The Gentrys assert
that John Wetzig participated in harming Jennifer Gentry by encouraging Collins to throw her
into the pool. The Gentrys also argue that the Wetzigs failed to protect Jennifer Gentry from
dangerous and latent conditions on the premises, including the ladder configuration to exit
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the pool and, their invited social guest, Collins. We disagree.
Summary Judgment
{¶ 11} This court's review of a trial court's ruling on a summary judgment motion is de
novo. PNC Mtge. v. Innis, 12th Dist. No. CA2010-10-013, 2011-Ohio-5594, ¶ 7. Civ.R. 56
sets forth the summary judgment standard and requires that (1) there be no genuine issues
of material fact to be litigated, (2) the moving party is entitled to judgment as a matter of law,
and (3) reasonable minds can come to only one conclusion that being adverse to the
nonmoving party. Slowey v. Midland Acres, Inc., 12th Dist. No. CA2007-08-030, 2008-Ohio-
3077, ¶ 8. The moving party has the burden of demonstrating that there is no genuine issue
of material fact. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978).
{¶ 12} "Once the moving party's burden has been satisfied, the burden shifts to the
non-moving party, as set forth in Civ.R. 56(E)." Innis at ¶ 8, citing Jackson v. Walker, 9th
Dist. No. 22996, 2006-Ohio-4351, ¶ 10. The nonmoving party "may not rest on the mere
allegations of his pleading," but the response, by depositions, affidavits, or as otherwise
provided in Civ.R. 56, "must set forth specific facts showing the existence of a genuine triable
issue." Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996). Not all arguable facts are
material. Innis at ¶ 8. A dispute of fact is considered "material" only if it affects the outcome
of the litigation. Id. Additionally, not all disputes of fact create a genuine issue. Id. Instead,
a dispute of fact is considered "genuine" if it is supported by substantial evidence that
exceeds the allegations in the complaint. Id.Negligence
{¶ 13} To recover on a claim for negligence, the plaintiff must prove (1) that the
defendant owed the plaintiff a duty, (2) that the defendant breached that duty, and (3) the
breach of the duty proximately caused the plaintiff's injury. Wellman v. E. Ohio Gas Co., 160
Ohio St. 103, 108-09 (1953).
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Proximate Cause
{¶ 14} The Gentrys assert that John Wetzig participated in harming Jennifer Gentry by
acting in concert with Collins by encouraging Collins to throw Jennifer Gentry into the
swimming pool. The Gentrys also assert that the Wetzigs should have protected Jennifer
Gentry from Collins or warned her about Collins. While these arguments relate to different
duties the Wetzigs may have owed the Gentrys, both arguments presume that Jennifer
Gentry being thrown into the pool was the proximate cause of her injuries. Consequently, we
begin our analysis by addressing proximate cause because we find it dispositive of these
arguments.
{¶ 15} "It is well settled that in order for a person to be entitled to recover in damages
for a claimed negligent injury, the act complained of must be the direct and proximate cause
of the injury." Strother v. Hutchinson, 67 Ohio St.2d 282, 286 (1981). Ross v. Nutt, 177 Ohio
St. 113 (1964), states a foundational principle of proximate cause.
As is said in Miller v. Baltimore & Ohio Southwestern Rd. Co., 78
Ohio St. 309, at page 325, * * * "the rule is elementary that a
defendant in an action for negligence can be held to respond in
damages only for the immediate and proximate result of the
negligent act complained of, and in determining what is direct or
proximate cause the rule requires that the injury sustained shall
be the natural and probable consequence of the negligence
alleged; that is, such consequence as under the surrounding
circumstances of the particular case might, and should have
been foreseen or anticipated by the wrongdoer as likely to follow
his negligent act."
Consequently, "[i]f an injury is the natural and probable consequence of a negligent act and it
is such as should have been foreseen in the light of all the attending circumstances, the
injury is then the proximate result of the negligence." Uddin v. Embassy Suites Hotel, 165
Ohio App.3d 699, 2005-Ohio-6613, ¶ 43 (10th Dist.), quoting Mudrich v. Std. Oil Co., 153
Ohio St. 31, 39 (1950).
{¶ 16} "Ordinarily, proximate cause is a question of fact for the jury. * * * However,
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'where no facts are alleged justifying any reasonable inference that the acts or failure of the
defendant constitute the proximate cause of the injury, there is nothing for the jury (to
decide), and, as a matter of law, judgment must be given for the defendant.'" Engle v.
Salisbury Twp., 4th Dist. No. 03CA11, 2004-Ohio-2029, ¶ 27, quoting Case v. Miami
Chevrolet Co., 38 Ohio App. 41, 45-46 (1st Dist.1930).
{¶ 17} Under the surrounding circumstances, falling from the top of the platform or
from the ladder on the outside of the pool was not the natural and probable consequence of
being thrown into the pool. It was reasonably foreseeable that Jennifer Gentry might have
been injured by being thrown into the pool (e.g. striking her knee at the bottom of the pool).
However, this is not how Jennifer Gentry was injured. Jennifer Gentry was injured by
traversing the exit to the pool. The proximate cause of Jennifer Gentry's injuries was either
the nature of the ladder system or her own negligence. In either event, reasonable minds
can reach only one conclusion, that Jennifer Gentry's injuries were not the proximate result of
being thrown into pool. Because Jennifer Gentry's injuries were not the proximate result of
being thrown into the pool, the Wetzigs were not negligent for allegedly acting in concert with
Collins or failing to protect Jennifer Gentry from Collins.
{¶ 18} Furthermore, we note that the only indication that John Wetzig acted in concert
with Collins is a statement made by Collins. The Gentrys contend that when asked why he
threw Jennifer Gentry into the pool, Collins responded "John [Wetzig] told me to." The
Gentrys assert that this statement allegedly made by John Wetzig is admissible as an
exception to the hearsay rule because it is an excited utterance. To constitute an excited
utterance it must relate "to a startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition." Evid.R. 803(2); State v. Leonard,
104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 94. The Gentrys contend that the event was Jennifer
Gentry yelling expletives at Collins and Robert Gentry confronting Collins. However, Collins
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intentionally threw Jennifer Gentry into the pool, and he should not have been surprised that
such an action might evoke emotions of anger from Jennifer Gentry or her husband.
Additionally, the statement is not admissible as an admission by a party-opponent because,
regardless of when Collins was dismissed as a party, the statement does not satisfy the twin
requirements of being offered against the party and being that party's own statement.
Mastran v. Urichich, 37 Ohio St.3d 44 (1988); Evid.R. 801(D)(2)(a).
Duty to Warn
{¶ 19} While we find the issue of proximate cause to be dispositive regarding whether
Jennifer Gentry's injuries were a result of being thrown into the pool, we must address the
Gentrys' argument that the ladder system constituted a dangerous and latent condition. It is
undisputed that Jennifer Gentry was a social guest who was invited to the Wetzigs' property
on the day of the accident. One of the duties a social host owes a guest is 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." Scheibel v. Lipton, 156 Ohio St. 308 (1951), paragraph three of the syllabus.
This duty only arises "if the host has reason to believe that the guest does not know and will
not discover such dangerous condition." Id. While admittedly not defective, the ladder
configuration to exit the pool has steps inside of the pool that lead to a platform at the top of
the pool and connects to a ladder located outside the pool, which could possibly be
considered dangerous. If so, the question becomes whether the Wetzigs had a duty to warn
Jennifer Gentry of the ladder configuration if they had reason to believe Jennifer Gentry
would not discover its condition.
Open and Obvious Conditions
{¶ 20} A property owner owes no duty to warn of dangers which are open and obvious.
Galinari v. Michael Koop, 12th Dist. No. CA2006-10-086, 2007-Ohio-4540, ¶ 12. The
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rationale for this "open and obvious" doctrine is that the nature of the hazard serves as its
own warning, and guests then have a corresponding duty to take reasonable precautions to
avoid dangers that are patent or obvious. Id. Whether a hazard is an open and obvious
condition is a matter of law to be determined by the court, and therefore, a suitable basis for
summary judgment. Galinari at ¶ 13. Application of the doctrine relates to the threshold
issue of duty and obviates the duty to warn and acts as a complete bar to negligence claims.
Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 13-14.
{¶ 21} In deciding whether a condition is open and obvious, "the determinative
question is whether the condition is discoverable or discernible by one who is acting with
ordinary care under the circumstances." (Emphasis sic.) Earnsberger v. Griffiths Park Swim
Club, 9th Dist. No. 20882, 2002-Ohio-3739, ¶ 24. This determination is an objective one and
"a dangerous condition does not actually have to be observed by the claimant to be an open-
and-obvious condition under the law." Lykins v. Fun Spot Trampolines, 12th Dist. No.
CA2006-05-018, 2007-Ohio-1800, ¶ 24, citing Colvin v. Kroger Co., 12th Dist. No. CA2005-
07-026, 2006-Ohio-1151. "Rather the determinative issue is whether the condition is
observable." Id.{¶ 22} Ohio courts have recognized that darkness is an open and obvious condition.
McDonald v. Marbella Restaurant, 8th Dist. No. 89810, 2008-Ohio-3667, ¶ 33. See, e.g.,
Rezac v. Cuyahoga Falls Concerts, Inc., 9th Dist. No. 23313, 2007-Ohio-703; Leonard v.
Modene and Assoc., Inc., 6th Dist. No. WD-05-085, 2006-Ohio-5471; Swonger v. Middlefield
Village Apts., 11th Dist. No. 2003-G-2547, 2005-Ohio-941, ¶ 13; McCoy v. Kroger Co., 10th
Dist. No. 05AP-7, 2005-Ohio-6965, ¶ 16. See also Jeswald v. Hutt, 15 Ohio St.2d 224(1968), paragraph three of the syllabus ("[d]arkness is always a warning of danger, and for
one's own protection it may not be disregarded").
{¶ 23} In some instances, lighting conditions have been considered an attendant
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circumstance that creates a question of fact. E.g. Sharp v. Norfolk & W. Ry. Co., 36 Ohio
St.3d 172 (1988) (finding lighting conditions a question of fact regarding whether an object
was discernible on a highway to determine whether a driver violated an assured-clear-
distance-ahead statute). However, Ohio courts have consistently held that dimly lit steps do
not render steps unreasonably dangerous, but rather present an open and obvious danger of
which the person traversing the steps should be aware. McDonald at ¶ 39. See Johnson v.
Regal Cinemas, Inc., 8th Dist. No. 93775, 2010-Ohio-1761; Kornowski v. Chester Properties,
Inc., 11th Dist. No. 99-G-2221, 2000 WL 895594 (June 30, 2000); Orens v. Ricardo's
Restaurant, 8th Dist. No. 70403, 1996 WL 661024 (Nov. 14, 1996). Furthermore, Ohio
courts have held to the extent that there may be a genuine issue of material fact as to the
degree of darkness, summary judgment is appropriate, where if it was light enough to see,
then steps presented an open and obvious hazard, and if it was dark, then the darkness was
observable. See McDonald at ¶ 35-36; Leonard, 6th Dist. No. WD-05-085, 2006-Ohio-5471;
Estate of Helle v. Hensley, 6th Dist. No. WM-10-017, 2011-Ohio-4279, ¶ 28-29.
{¶ 24} In this case, Jennifer Gentry's deposition revealed that as she arrived at the top
of the pool, the next thing she knew, she was on the ground. Jennifer Gentry testified that
the ladder "was not broken," and her affidavit revealed that she was unsure whether she
"slipped or missed a step." Jennifer Gentry swore that she was unaware of the mechanics of
her fall because it was dark. In contrast, the Wetzigs testified that it was light enough to see.
In any event, the condition of the ladder configuration was discoverable and discernible.
The pool was aboveground, necessitating some type of ladder system to descend to the
ground. If it was light enough to see, the ladder descending the outside of the pool would
have been discoverable. However, if it was not light enough to see, then the darkness itself
was discernible. In either scenario, there was an open and obvious condition as Jennifer
Gentry was exiting the pool, absolving the Wetzigs of any duty to warn of the ladder
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configuration.
Attendant Circumstances
{¶ 25} In their brief, the Gentrys only mention that the ladder configuration was
dangerous and Jennifer Gentry could not appreciate the condition because it was dark.
However, at oral argument, the Gentrys mentioned that other possible attendant
circumstances, such as guests drinking alcohol and Jennifer Gentry wearing street clothes as
she exited the pool, precluded Jennifer Gentry from appreciating the dangerous condition of
the ladder. Consequently, we find it prudent to address the doctrine of attendant
circumstances.
{¶ 26} "Attendant circumstances are an exception to the open and obvious doctrine
and refer to distractions that contribute to an injury by diverting the attention of the injured
party and reduce the degree of care an ordinary person would exercise at the time." Galinari,
12th Dist. No. CA2006-10-086, 2007-Ohio-4540, ¶ 21. An attendant circumstance is one that
is beyond the control of the injured party and must "divert the attention of the [injured party],
significantly enhance the danger of the defect, and contribute to the [injury]." Isaacs v.
Meijer, Inc., 12th Dist. No. CA2005-10-098, 2006-Ohio-1439, ¶ 16.
{¶ 27} Regarding intoxication, the duty to warn is not heightened by the voluntary
intoxication of a guest. Estate of Valesquez v. Cunningham, 137 Ohio App.3d 413, 420 (5th
Dist.2000). Jennifer Gentry testified that she drank four or five beers, which she brought to
the party, and had a "few" peach slammers. Jennifer Gentry also described the party as a
"drunken wild party," but that she maintained control of herself. In any event, Jennifer Gentry
voluntarily consumed alcohol and whether she was drunk or not, the Wetzigs did not have a
heightened duty to warn her of an open and obvious condition. Consequently, Jennifer
Gentry consuming alcohol was not an attendant circumstance.
{¶ 28} Furthermore, while being thrown into the pool was outside the control of
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Jennifer Gentry, it did not significantly enhance any danger the ladder presented. After
remaining in the pool for several minutes, Jennifer Gentry exited the pool. She testified that
"I was being careful and watching where I was going as best I could * * *." While Jennifer
Gentry was wearing street clothes as she exited the pool, she was not wearing shoes when
she exited the pool. There is no indication that the condition of her clothing distracted her as
she was exiting the pool so to impair her ability to appreciate the open and obvious condition
of the ladder or the darkness. Accordingly, we find that attendant circumstances did not
obviate the open and obvious doctrine.
Conclusion
{¶ 29} We find that reasonable minds could only come to one conclusion: that Jennifer
Gentry being thrown into the pool was not the proximate cause of her injuries. Furthermore,
we find that reasonable minds could only conclude that the ladder configuration, or in the
alternative, the darkness, was an open and obvious condition absolving the Wetzigs of any
duty to warn. Consequently, there are no genuine issues of material fact and the Wetzigs
are entitled to summary judgment as a matter of law. The Gentrys' sole assignment of error
is overruled.
{¶ 30} Judgment affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.
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