COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59793 JACKIE STOKER : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS SAXE, ET AL : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : FEBRUARY 13, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 171,556 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendants-appellees: JACKIE STOKER, PRO SE MARILYN FAGAN DAMELIO, ESQ. 14420 Montrose Road 5626 Broadview Road Cleveland, Ohio 44111 Cleveland, Ohio 44134 - 2 - J.F. CORRIGAN, P.J., Plaintiff Jackie Stoker appeals from the order of the trial court which awarded summary judgment to defendants Thomas and Daniel Saxe in plaintiff's action for personal injuries. For the reasons set forth below, we affirm. I. On or about July 30, 1988, plaintiff was injured at a party hosted by Daniel Saxe. Thereafter, on June 19, 1989, plaintiff filed this action against Saxe, his father Thomas, and "John Doe, real name unknown" alleging, inter alia, as follows: "3. *** Defendant, John Doe, real name unknown, a social guest of Defendants, Saxe, [sic] intentionally and willfully assaulted Plaintiff and forceably [sic] attempted to throw Plaintiff into the said swimming pool and intentionally and willfully and/or negligently dropped the person of Plaintiff. "4. Plaintiff further states that Defendants Saxe, [sic] negligently hosted the said party and negligently maintained the said premises, allowing a dangerous condition to exist, and failed to warn Plaintiff of the said dangerous condition. Alternatively, Plaintiff states that Defendants intentionally and willfully permitted the said dangerous condition to exist and that they intentionally and willfully permitted John Doe, real name unknown, to assault and to forceably [sic] attempt to throw Plaintiff into the said swimming pool." Defendants Daniel and Thomas Saxe deposed plaintiff on November 22, 1989. Thereafter, on February 28, 1990 the Saxes moved for summary judgment, asserting that under the undisputed evidence concerning the manner in which plaintiff sustained her - 3 - injury, they did not breach the duty owed to her as a social guest on the premises. A transcript of plaintiff's deposition was appended to this motion, and in relevant part, it provided: Q. What did you do upon arriving at Dan's house the A. Everybody was in the house, so we went in the house. *** Q. What happened after you were playing pool? A. Everybody else was drinking. And then they decided-- it was just drizzling, wasn't really raining, we went back outside, it was drizzling still. But they were all pushing each other and throwing everybody in. Q. Who are we talking about here? A. His friends, few of his friends. Q. A few of his friends were pushing each other in the A. Yeah. Q. Do you know their names? A. No, I don't remember who they were. *** Q. So the Toledo friends were pushing each other in. What about the friends from high school? A. There were a couple of them doing it, too. They were just all jumping in and pushing each other in, playing in the pool. Q. Where was Dan at this time? A. Wandering around. He liked my friend, so when she went in the pool, he went in the pool. - 4 - *** Q. What were you doing all this time? A. I was standing on the back ledge just watching them, trying to stay away from the pool, because I didn't want to go swimming. And a couple of his friends came and said, "You are going to, because everybody is going in." They were trying to push me toward the pool, and I was fighting them off. And me and that guy Bill both fell off the ledge, and I hit my head on the picnic table and fell right on my knee. *** Q. Where was Dan at this time? A. Dan was jut wandering around, he was really drunk at the time. *** Q. Is there something that you think he could have done which would have prevented your fall? MS. MASSETTI: Objection. Asks for speculation. Q. Go ahead and answer. MS. MASSETTI: You can answer. A. Not really. (Depo. Tr. 18-29). In opposition to defendants' motion for summary judgment, plaintiff submitted an affidavit in which she asserted that she observed John Doe engage in horseplay in the pool area, and that defendants did not warn her that she might be thrown into the pool, and did not protect her from John Doe's conduct. - 5 - On April 13, 1990, the trial court granted the Saxes' motion for summary judgment, and plaintiff now appeals./1\ II. Plaintiff's first assignment of error states: "THE TRIAL COURT ERRED IN RULING AS A MATTER OF LAW THAT DEFENDANTS/HOSTS ARE NOT LIABLE FOR THE ACTS OF THIRD PERSONS RESULTING IN INJURY TO A SOCIAL GUEST ON THE PREMISES." Generally, there is no duty to control the conduct of a third person by preventing him or her from causing harm to another, except in cases where there exists a special relationship between the actor and the third person which gives rise to a duty to control, or between the actor and another which gives the other the right to protection. Federal Steel & Wire Corp. v. Ruhler Constr. Co. (1989), 45 Ohio St. 3d 171, 175. Special relationships are in turn outlined in the Restatement of the Law 2d, Torts (1965) 122, Sections 315 to 320. Restatement, supra, Section 318 provides s follows: "Duty of Possessor of Land or Chattels to Control Conduct of Licensee "If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to /1\ The true identity of defendant John Doe was not ascertained during the course of the proceedings below, and accordingly, service was not perfected upon him. The trial court's judgment as to the Saxes is therefore a final appealable order. See Harris v. Plain Dealer Publishing Co. (1988), 40 Ohio App. 3d 127, 129. - 6 - control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor "(a) knows or has reason to know that he has the ability to control the third person, and "(b) knows or should know of the necessity and opportunity for exercising such control." In this case, the undisputed evidence indicates that Thomas Saxe was not home at the time of the injury. In addition, defendants presented evidence which indicated that Daniel Saxe neither knew or should have known that John Doe was intentionally or negligently causing harm to others, and this evidence was not refuted by plaintiff. Thus, absent evidence to create a genuine issue of material fact as to this element of plaintiff's cause of action, summary judgment was properly awarded to defendants as to this claim. Cf. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323-324. Plaintiff's first assignment of error is overruled. III. "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS-APPELLEES, AND AGAINST PLAINTIFF, BECAUSE THE QUESTION OF WHETHER DEFENDANTS/HOSTS KNEW OR SHOULD HAVE KNOWN AND FAILED TO WARN PLAINTIFF/GUEST OF A DANGEROUS CONDITION EXISTING ON THE PREMISES, AND FURTHER HAD REASON TO BELIEVE THAT PLAINTIFF DID NOT KNOW AND WOULD NOT DISCOVER SAID DANGEROUS CONDITION IS A MATERIAL QUESTION OF FACT UPON WHICH REASONABLE MINDS MAY DIFFER." - 7 - In Hager v. Griesse (1985), 29 Ohio App. 3d 329, the court considered the duty which a host owes to a social guest who is injured during horseplay at a private swimming pool. The court stated: "'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 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 consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.' (Emphasis added.)" Id. at 330, citing to Scheibel v. Lipton (1951), 156 Ohio St. 308. The court further noted that social guests are a type of licensee. Id. In this case, the undisputed evidence established that plaintiff was not injured by an act of the Saxes, or by activities carried on by the Saxes. Further, defendants presented evidence that plaintiff was not injured from a condition which the Saxes should reasonably consider dangerous, and unknown to plaintiff, and plaintiff failed to put forth countervailing evidence to create a genuine issue of material fact as to this issue. Plaintiff's second assignment of error is overruled. IV. - 8 - "THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF'S REMAINING ON THE PREMISES WHEN SHE KNEW OTHER GUESTS HAD BEEN THROWN INTO THE POOL WAS AS [SIC] ASSUMPTION OF THE RISK BY THE PLAINTIFF AS A MATTER OF LAW." As assumption of the risk was not raised in the Saxes' motion for summary judgment, this assignment of error lacks support in the record and is therefore overruled. Cf. L.A. & D., Inc. v. Bd. of Commrs. (1981), 67 Ohio St. 2d 384, 387. Judgment affirmed. - 9 - It is ordered that appellees recover of appellant their 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 Court of Common Pleas 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. BLACKMON, J., and HARPER, J., CONCUR. JOHN F. CORRIGAN PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .