Weinkauf v. PenaWeinkauf v. Pena
Case Information
*1
[Cite as
Weinkauf v. Pena
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Cеcelia R. Weinkauf, :
Plaintiff-Appellant, :
No. 19AP-707 v. : (C.P.C. No. 18CV-7962) Michael Pena et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on June 11, 2020 On brief: Paxton Law Office and Robert C. Paxton, II, for appellant.
On brief: Raymond H. Decker, Jr., for appellees.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J. Michael and Dulceia Pena invited their next-door neighbor Cecelia Weinkauf
into their home for a party to celebrate the christening of their friends' two-year-old son. Upon entering the house, Ms. Weinkauf found her hostess and four other women grouped around a rug that would not lie flat: the rug was сurled up at the edge and "looked like [it] had just come off a roll." Weinkauf Deposition at 67. Ms. Weinkauf knew the rug would not lie flat "[b]ecause they were talking about it" and discussing what might be done. at 66. Some three hours later, the 79-year-old Ms. Weinkauf initiated a game of "catch" with the young guest of honor, id. at 62; in her pursuit of the running boy, she tripped over the rug and, she says, sustained serious injuries to her hips and knee, id. at 75. So she sued the Penas. *2 Litigation proceeded until the trial court granted the Penas' motion for
summary judgment because their legal duty to their social guest Ms. Weinkauf extended no farther than to refrain from acting outside the bounds of ordinary care and to warn her of any dangerous condition that was not obvious and of which she was not aware. See September 17, 2019 Decision Granting Motion of Defendants for Summary Judgment. Ms. Weikauf appeals from that decision, but having reviewed the record afresh, we are obliged to affirm the trial court's judgment given well established Ohio law and Ms. Weinkauf's own testimony. Appellate review of a summary judgment decision is "de novo, governed by
the standard set forth in Civ.R. 56."
Comer v. Risko
,
them. On a late Saturday afternoon in October 2016, she walked next door to the party. Weinkauf Deposition at 40. When she arrived, she saw Mrs. Pena and "maybe four" other women "gathered around the rug * * * because it wasn't lying flat. The rug wasn't lying flat." at 65. "[T]hey were talking about" the problem. Id. at 66. Ms. Weinkauf had "never [seen] the rug before" and believed that it had been "purchased specifically" or rented for the party; "it looked like the rug had just come off a roll." at 65, 67. She joined in the discussion as to what might be done: "I told them it's not going to lie flat, you got to put a chair over it, but I never saw a chair before." Id . at 66-67. "I felt that they were going to take *3 care of it, this problem, and I forgot about it," she later testified. Id. at 67. "[I]t isn't something I would store in my memory bank if they were – it appeared that they were going to solve the problem, turn the rug or do something, but * * *." Id. at 67; see also subsequent Weinkauf Affidavit at ¶ 11 ("at one point in the discussion over the rug at the start of the evening, it was suggested that the Defendant turn the rug so the dangerous fringe end of the rug would not be in the рath of party traffic. The Defendant [Ms. Pena] declined the idea because she did not like the way the rug looked placed any other way."). Ms. Weinkauf enjoyed herself at the party for three hours or so, Weinkauf
Deposition at 62, 67, and then found herself in the living room where the "baptism child" was "playing with a toy or something," id. at 62. "I said, 'Oh, I'm going to catch you,' sо I thought I'm going to do this little catch thing." Id. at 62-63. Thus encouraged, the boy "started running and I followed him [from the living room, through the foyer, into the kitchen, and from there] into the family room area where my foot went under the rug and I fell." at 62-63; Weinkauf Affidavit at ¶ 9 and Affidavit Exhibit A (map). Ms. Weinkauf later told the trial court that her "attention was directed at the child and so she did not observe the flоor below his feet." Weinkauf Affidavit at ¶ 10. Ms. Weinkauf filed suit against the Penas almost two years later, alleging one
count of negligence. The complaint alleged that the Penas had "negligently placed" the carpet with "lipped-up edges" in their home, creating a "dangerous condition" for guests; that the placement of the carpet "gave no warning [of] the danger"; and that Ms. Weinkauf had "sustain[ed] serious personal injuries" as a result of the Penas' negligence. Septempber 20, 2018 Complaint at ¶ 4-6. The Penas' lawyer took Ms. Weinkauf's deposition on April 25, 2019 and filed
their motion for summary judgment two months later. After full briefing, the trial court
granted it on September 17, 2019. Noting that Ms. Weinkauf "had actual knowledge of the
[state of the] rug," the trial court ruled that this knowledge "negated any breach of duty"
the Penas otherwise might have had to warn her of the rug's condition. September 17, 2019
Decision at 4. Further, the trial court found that even if Ms. Weinkauf had not had actual
knowledge that the rug was curled up and would not lie flat, the Penas would not have had
a duty to warn her of the danger because "the curled-rug hazard was open and obvious as a
matter of law." at 7. With regard to this alternative mode of analysis, the fact that
*4
Ms. Weinkauf was chasing a two-year-old child when she fell was not an attendant
circumstance that defeated the open-and-obvious doctrine, in the trial court's estimation:
the "activity of playing chasе could not constitute an attendant circumstance, as the game
of chase was
her
activity," not a circumstance created by the Penas.
Id.
at 8. The trial court
rejected a further alternative theory, declining to apply a "two-inch rule" as urged by the
Penas that "provides that a difference in elevation of two inches or less in height between
two adjoining portions of sidewalk or walkway is cоnsidered insubstantial as a matter of
law"; the record lacked any evidence of the height of the rug, the judge observed. at 9.
Ms. Weinkauf on appeal asserts one assignment of error: "The trial court
erred as a matter of law in granting summary judgment to Appellee where an issue of fact
existed for the determination by the trier of fact." Amended Briеf of Appellant at 5. But
what she really advocates is a change in the negligence standard for social hosts.
Ms. Weinkauf's negligence claim required her to prove that the Penas owed
her a duty of care and breached that duty, thereby proximately causing her injury.
See, e.g.
,
A.M. v. Miami Univ
., 10th Dist. No. 17AP-156,
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 premisеs, 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 .
Scheibel v. Lipton
, 156 Ohio St. 308 (1951), paragraph three of the syllabus (emphasis
addеd);
see also Ochall v. McNamer
, 10th Dist. No. 15AP-772,
discovered
and
knew
) as soon as she entered the Penas' house that the rug on their family
room floor was curled up at the edge. She saw it; she heard others talking about it; and she
discussed it herself. Weinkauf Deposition at 65-67. She thought that the problem might
be "solve[d]" by turning the rug, until Ms. Pena "declined the ideа because she did not like
the way the rug looked placed any other way."
Compare id.
at 67
with
Weinkauf Affidavit
at ¶ 11. In sum, she knew that "[t]he rug wasn't lying flat." Weinkauf Deposition at 65. But
when she got the young boy to run, and chased him, her "attention was directed at the child
and so she did not observe the floor below his feet." Weinkauf Affidavit at ¶ 10. She "forgot
about" the condition of the rug. Weinkauf Deposition at 67. But, as the trial court
understood, "[g]enerally, the plaintiff's failure to avoid a known peril is not excused by the
fact that he [or she] 'did not think,' or 'forgot'."
Raflo v. Losantiville Country Club
, 34 Ohio
St.2d 1, 3 (1973); Decision Granting Motion at 5 (quoting
St. Germain v. Newell
, 3d Dist.
No. 9-15-14,
to warn their social guests of dangerous conditions of which "the guest does not know and [that the guest] will not disсover," Scheibel at paragraph three of syllabus, is far too lenient, and that constraints on social gatherings in one's home should be significantly tighter. Her position, repeatedly expressed, is that the Penas "had a duty to repair the hazard." Appellant's Brief at 18; see also id. at 2 (Penas "knew of the danger created by the rug, yet never did anything about it"); 4 ("failed to remedy the dangerous condition"); id. (Penas had time during the party "to remove, or fix, the dangerous rug, but did neither, thereby breaching the duty of care owed" Ms. Weinkauf); Reply Brief at 7 ("They could have fixed the problem," but did not). Thus, in her view: "This case presents a simple issue. If Appellees knew there was a hazardous condition in their home, do they have a duty to fix or securе the hazardous condition in question?" Appellant's Brief at 10. She eventually submits that the answer to that question of law is "yes." at 14 ("[o]f course" there is a "duty to correct"). Yet she cannot cite, or at least she does not cite, any authority whatsoever *6 for that "duty to fix" proposition in this context. We will not here upend decades of well established Ohio law to reorder the social relationships between families, friends, and neighbors. Nor could we, even were we so inclined. As we have recognized, see, e.g.,
Frame v. Allen , 10th Dist. No. 01AP-698, 2001 Ohio App. Lexis 5971, *7, the Supreme Court of Ohio in Scheibel further underscored that: "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 thе host that the premises to which a guest is invited by him are in safe condition." 156 Ohio St. 308 at paragraph two of the syllabus. Instead of providing any legal authority for the standard she urges,
Ms. Weinkauf quotes at length (for some three and a half single-spaced pages, to be precise) from a common pleas court case called Porter v. Hyatt Corp ., Franklin C.P. No. 10CVC- 11522, 2013 Ohio Misc. Lеxis 16387 (Apr. 25, 2013)—a business invitee case that discussed when a hazard is so "open and obvious" that no warning need be given even in the absence of other foreknowledge. Appellant's Brief at 10-14. That case in no way alters the definition of the duty that hosts owe their social guests, nor does it otherwise create liability for a hazardous condition already known by the social guest. And Ms. Weinkauf's reliance on the decision is especially puzzling in light of her stated view that "[t]he open and obvious doctrine * * * has nothing to do with [her] case." See Reply Brief at 7. We think that view, at any rate, is correct to the extent that whether or not knowledge of the rug's condition should be attributed to Ms. Weinkauf on account of open and obvious features is beside the point, because she herself acknowledged her direct understanding from her observations and her conversation with her hostess and others that the rug "wasn't lying flat." Compare Weinkauf Deposition at 65 with Mullens v. Binsky , 130 Ohio App.3d 64, 69 (10th Dist.1998) ("rationale behind" open and obvious rule is that such a "danger itself serves as a warning and the owner may reasonably expect that individuals entering the prеmises will discover [it] and take appropriate measures to protect themselves"). Ms. Weinkauf's preference for a "duty to repair" standard notwithstanding,
"[t]here is no duty on the part of the host to reconstruct or improve the premises for the
purpose of making his house more convenient or more safe for those accepting his
hospitality, gratuitously extended"; the duty is as described by our state's Supreme Court
*7
in the ruling quoted above.
Scheibel
,
necessary element of her case. Thus, for example, while not quite blaming the newly
christened boy, she invokes what she says the Penas' motion conceded as "the distraction
of Appellant by the two-year-old child at the timе of Appellant's fall and injuries."
Appellant's Brief at 4. Our review of the Penas' motion does not reveal that they ever made
such an admission.
See
June 25, 2019 Defendant's Motion for Summary Judgment with
Memorandum in Support. Much more fundamentally, while attendant circumstances in
some instances can "act as an exception that allows a plaintiff to avoid the open and obvious
doctrine,"
Cummin v. Image Mart, Inc.
, 10th Dist. No. 03AP-1284,
lawyer's argument that the Penas "knew that there would be elderly people at this party.
They knew drinking would be involved." Appellant's Brief at 16. From whatever he implies
here (and while Ms. Weinkauf testified that she was 79 years old at the time, she was clear
that she does not drink heavily and had consumed no more than one glass of wine at the
most,
see
Weinkauf Deposition at 68), counsel leaps to his asserted point that a "tortfeasor
*8
is required to take an injured part[y] 'as they find them,' " Appellant's Brief at 16 (which on
reply he phrases in terms of "the 'eggshell skull' rule," Reply Brief at 6). But the "eggshell
skull" rule does not alter the legally defined duty of a host to a social guest. Rather, it is a
rule of damages that "evolved in the context of preexisting injuries to provide that if
a defendant's wrongful act causes injury, the defendant is fully liable for the resulting
damage even though the injured plaintiff had a preexisting condition that made the
consequences of the wrongful act more severe than they would have been for a plaintiff
without a preexisting condition or injuries."
Daniels v. Northcoast Anesthesia Providers,
Inc
., 8th Dist. No. 105125,
place[] bricks or other weight-bearing objects to keep the rug flat," for example, compare Reply Brief at 5 (not speculating as to whether a guest would have sued had she tripped over a brick), and because Ms. Weinkauf knew the condition of the rug and indeed discussed it with her hostess and others, Ms. Weinkauf's negligence claim failed as a matter of law. We overrule Ms. Weinkauf's only assignment of error, and we affirm the trial court's grant of summary judgment to the Penas.
Judgment affirmed. LUPER SCHUSTER and BRUNNER, JJ., concur.
_________________