COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59660 : HENRY PARTYKA : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : JEAN B. PARTYKA : : Defendant-Appellee : : DATE OF ANNOUNCEMENT DECEMBER 19, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 165291 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: DANIEL J. RYAN ROGER H. WILLIAMS 2000 Standard Building 330 Hanna Building Cleveland, Ohio 44113 1422 Euclid Avenue Cleveland, Ohio 44115-1951 -2- PATRICIA A. BLACKMON, J.: Henry Partyka, plaintiff-appellant, sued his mother Jean B. Partyka, defendant-appellee, for negligence. He alleged in his complaint that he slipped and fell while using the bathtub at his mother's home and that she failed to prevent this danger. The trial court granted summary judgment for the mother and the son has filed this appeal. The facts of this appeal are straight forward, and are briefly set forth below. Additionally, for purposes of this opinion the parties will be referred to as "Appellant" and "Appellee", and the issue on appeal is whether the trial court erred in granting summary judgment to Appellee. Because we hold that there is no genuine issue as to any material fact, we affirm the trial court's decision. After ten years of living in California, Appellant relocated to Cleveland and moved into Appellee's home. It was revealed during testimony that Appellant resided with Appellee for several reasons: she was ill; he was ending his marriage; he was laid off from his place of employment. Furthermore, it was revealed that Appellant had no source of income while living with his mother. Additionally, there were no facts in the record to substantiate that Appellant contributed any money towards his living expenses while living with Appellee. Although Appellant performed several services for his mother such as landscaping, cleaning, and driving, Appellant testified -3- that there were no financial arrangements between him and his mother for the payment of room and board. There was testimony in the record that Appellant was planning to return to California, however, on November 3, 1987, he slipped and fell in the bathtub. Appellant testified that the slipperiness of the bathtub caused his fall, and he was unsure if the condition of the floor contributed in any way to the fall. Additionally, Appellant's testimony revealed that the appliques that were stuck on the floor of the bathtub were worn away. Nevertheless, it was also Appellant's testimony that the appliques were in the same condition when he moved into the residence. Appellant testified that he had used the bathtub prior to his fall in November, 1987, without difficulty. In support of this appeal, Appellant asserts the following assignment of error: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE SUMMARY JUDGMENT WHEN THERE EXISTS GENUINE ISSUES OF DISPUTED FACT. Appellant argues that he was a business invitee, and Appellee owed him a duty of ordinary care in maintaining a safe place. We do not agree. It is true that Sweet v. Clare-Mar Camp, Inc. (1987), 38 Ohio App. 3d 6 defines a business invitee as "one who is upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner and is one to whom the owner owes a duty to exercise ordinary care in maintaining the premises in a safe condition." -4- Nevertheless, it is axiomatic that the implication of the invitation is for the purpose of transacting business. "One who is impliedly invited to premises for transacting business and to whom a duty of due care is owed." Black's Law Dictionary, Abridged Fifth Edition. Appellant was not residing in his mother's home for the purpose of transacting business. Furthermore, there is a distinction between being upon the premises of another by invitation and residing in that premises. In Sweet, the plaintiff paid an admission fee and was then given access to all of the facilities in the camp. This is clearly a business arrangement wherein plaintiff-customer pays a fee, which is a benefit to the owner, in exchange for the utilization of the camp's facilities. There was no such business transaction between Appellant and Appellee. Based upon the facts contained in the record, we conclude that Appellant was a social guest of his mother. A social guest is not a business visitor and is not an invitee as that term is used in tort law. Scheibel v. Lipton (1951), 156 Ohio St. 308 at Syllabus 1. 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 a safe condition. Id. at Syllabus 2. A host who invites a social guest to his premises owes the guest the duty (1) to exercise ordinary care not to cause injury -5- 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 be considered dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition. Id. at Syllabus 3. Under these legal standards, summary judgment was properly granted. Appellant testified that the cause of his fall was "just the slipperiness of the bathtub." A legal requirement of any negligence action is the affirmative act or omission of the alleged tortfeasor. This is embodied in the explanation of the host's duty to a social guest contained in Scheibel. There is no genuine issue as to any material fact that the slipperiness of the bathtub was caused by some action or omis- sion by Appellee. It is common knowledge that a wet bathtub is always slippery and the slipperiness comes from the water. Therefore, Appellant, as a matter of law, is unable to establish a breach of the duty that Appellee, as a host, owed to Appellant as a social guest. Judgment affirmed. -6- It is ordered that Appellee recover of Appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. FRANCIS E. SWEENEY, P.J., and SPELLACY, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .