COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66890 : CARL ROBA, ADMINISTRATOR : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION SCANDINAVIAN HEALTH SPA : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 23, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-250658 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: MICHAEL R. KUBE, ESQ. JOHN V. SCHARON, ESQ. WILLIAM J. SHRAMEK, ESQ. Gaines & Stern Co., L.P.A. 1650 Midland Building 1400 Renaissance Center 101 Prospect Avenue, W. 1350 Euclid Avenue Cleveland, Ohio 44115-1027 Cleveland, Ohio 44115-1817 - 2 - O'DONNELL, J.: Michael Roba, a thirty-eight year old who suffered from epilepsy, drowned on May 12, 1989 in the ten-foot diameter three- foot deep whirlpool at the Scandinavian Health Spa located in Mayfield Heights, Ohio. Carl Roba, appellant herein, as administrator of the estate of Mr. Roba sued Scandinavian alleging negligence in the maintenance of the facility and failure to supervise and warn the decedent of dangers inherit in the use of the whirlpool. Relevant facts are generally not disputed. The decedent experienced frequent unpredictable seizures and used Dilantin as a control medication, but not with complete effectiveness. Scandinavian knew of Roba's condition, because in November, 1988, Roba had a seizure in this same whirlpool and was rescued by Scandinavian employees. After this near drowning incident, Todd Conduff, the manager at Scandinavian, warned Roba that there were no lifeguards in the pool area, that he could use the pool only if accompanied by another, and that personal supervision was available to any Scandinavian member and would be provided upon request. (Conduff: Aff. p.4, Depo. p.11). In addition, Scandinavian offered the deposition testimony of Dr. Dudley Dinner, Roba's physician, who admitted that he had warned Roba not to go swimming, or even take a bath without someone else being present to render assistance. (Dinner Tr. p. 61.) - 3 - Further, Scandinavian submitted an affidavit and report of Dr. William M. Rowley, an engineer specializing in aquatic facilities, who opined that the sign in the pool area, "no lifeguard on duty" was appropriate, adequate and met all state and local health codes. Roba filed a brief opposing Scandinavian's motion for summary judgment which contained the report of Dr. Ralph L. Johnson, a professor of physical education at Indiana University and an aquatic consultant, which stated that Scandinavian failed to adequately supervise Roba, a known epileptic, failed to adequately supervise its pool area, and failed to maintain the whirlpool at the appropriate temperature. In addition, Roba presented the affidavit of John Lombardo, a former Scandinavian employee, which stated that Scandinavian had no training manual or policy regarding safety in the whirlpool area, and often ignored the rules it did employ. Lombardo also stated that Scandinavian was aware of several instances of persons passing out in the whirlpool. On February 1, 1994, the trial court granted summary judgment in favor of Scandinavian without written opinion. Roba now appeals that decision of the trial court and raises one assignment of error. I. For his sole assignment of error, appellant contends: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING DEFENDANT SCANDINAVIAN HEALTH SPA, INC.'S MOTION FOR - 4 - SUMMARY JUDGMENT WHEN REASONABLE MINDS COULD CONCLUDE THAT GENUINE ISSUES OF MATERIAL FACT EXISTED AND THAT DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW. In considering a motion for summary judgment, a reviewing court must follow the standard set forth in Civ.R. 56(C), which specifically states: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, 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. On this appeal Roba's contentions are that Scandinavian breached its duty of care by continuing to allow the decedent to use the whirlpool, by failing to provide him with adequate supervision, and that the court resolved the issue of the decedent's comparative negligence and assumption of the risk thus depriving a jury of the opportunity to consider that issue. We begin our analysis by examining the relationship between the decedent and Scandinavian. The decedent's status as an invitee in this case is undisputed. Given this relationship, the duty owed an invitee is to exercise ordinary or reasonable care for the invitee's protection. This includes the duty to warn patrons of dangerous conditions known to or reasonably ascertained by an owner predicated upon the owner's superior knowledge of those dangerous conditions on the premises. See Jackson v. Kings Island (1979), 58 Ohio St.2d 357. This is so because an owner can only warn or protect a patron from - 5 - conditions which are known to the owner but which are not unknown to the patron. Here, appellant complains of Scandinavian's breach of its duty because Scandinavian allowed continued use of its facility by a patron with an impaired medical condition. Appellant does not complain of any specific defect in the condition of the premises. Rather, appellant's allegation is that the danger arises from use of the facility by a patron with a medical problem which is known to the defendant. Clearly, however, the patron's knowledge of his medical condition is superior to that of the defendant. Since the defendant does not have superior knowledge of the patron's medical condition, no duty arises to warn or protect the patron from that condition. We find, on the basis of the foregoing, that Scandinavian had no duty to supervise Roba, nor to ban him from the whirlpool. The law is that an owner's duty to protect an invitee arises only when he knows his invitee is endangered by an unreasonable risk of harm due to the condition of the owner's premises. Since plaintiff has not demonstrated such a condition existing on the defendant's premises, there is no duty on the owner to warn or protect this patron. See Cornell v. Aquamarine Lodge (1983), 12 Ohio App.3d 148. Because we find that there is no duty on the part of Scandinavian, the issues of comparative negligence and assumption of the risk which appellant raises, are moot. We conclude that summary judgment was properly granted in this case because we find no genuine issues of material fact - 6 - exist concerning the circumstances surrounding Mr. Roba's death, and because we determined that Scandinavian had no legal duty to him - 7 - and is therefore entitled to judgment as a matter of law. Judgment affirmed. It is ordered that appellee recover of appellant its 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. PATTON, C.J., and NAHRA, J., CONCUR. TERRENCE O'DONNELL 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .