COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66989 ANDREW NAGY, et al : : Plaintiff-appellants : : JOURNAL ENTRY vs. : and : OPINION FRANK WALLIS, et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 27, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 246,177 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellants DAVID P. PAVLIK Andrew and Sandra Nagy: Attorney at Law 1500 Illuminating Building Cleveland, Ohio 44113 For plaintiff-appellant A. SCOTT FROMSON Blue Cross/Blue Shield THOMAS M. HORWITZ of Ohio : Attorneys at Law 160 Signature Square I 25201 Chagrin Boulevard Cleveland, Ohio 44122 (Cont.) (Cont.) For defendant-appellees: GARY D. HERMANN MARGARET M. PAUKEN Attorneys at Law 1301 East Ninth Street, #500 Cleveland, Ohio 44114 DONALD C. NUGENT, J.: This is an appeal from the granting of summary judgment by the Cuyahoga County Court of Common Pleas in favor of defendant- appellee, Frank Wallis, on the claims of plaintiff-appellants, Andrew Nagy and Sandra Nagy, for physical injuries and loss of consortium. The facts giving rise to this appeal as contained in the record provide as follows: On July 4, 1991, appellants Andrew Nagy and his wife Sandra were invited to the home of the appellees, Frank Wallis and his wife Laura, to observe the Fourth of July fireworks at nearby Euclid Park. The appellants were present because their son is married to appellee Laura Wallis's sister. The appellants arrived at the Wallis home while it was still light outside. They then headed to the backyard without entering the house. Mr. Nagy had never been inside the appellees' home; however, Mrs. Nagy had been inside the home on previous occasions. As dark settled in, the party moved to the front lawn of the Wallis home in order to view the fireworks display. During the fireworks display, some of the younger children became frightened, so they were taken into the Wallis house, and the lights were turned out so the children could see the fireworks. After the fireworks were over, Mr. and Mrs. Nagy went into the house to use the bathroom. Mr. Nagy did not follow Mrs. Nagy as they walked through the front door of the house. At this time, all - 4 - of the lights in the house were still turned off. Although Mr. Nagy had never been in the home before, he did not turn on any lights. Mr. Nagy proceeded through the dining room and kitchen. At the back of the kitchen is the back hallway of the house, which connects the kitchen to the back door of the house and a bedroom. In addition, the stairs leading down to the basement are located in the back hallway and are completely open; there is no door at the top of the steps. As Mr. Nagy reached the back hallway off the kitchen, some children were coming in the back door of the house. Mr. Nagy stepped aside to make room for the children to enter the house. In so doing, Mr. Nagy stepped backwards into the open stairwell, fell down the stairs and was injured. On January 21, 1993, appellants filed a claim for the injuries Mr. Nagy incurred in the fall down the appellees' stairwell as well as a claim for loss of consortium suffered by Mrs. Nagy. Appellants' cause of action alleged that the appellees' stairwell represented a dangerous condition and that the appellees were negligent in failing to warn appellants of the condition. Appellants alleged that as a result of appellees' failure to warn, Mr. Nagy sustained a broken hip. On March 14, 1993, the appellees filed their answer, asserting that Mr. Nagy had, himself, been negligent. Thereafter, on July 22, 1993, pursuant to Civ.R. 24, Blue Cross & Blue Shield of Ohio filed a proposed complaint, as well as a motion to intervene as a real party in interest. - 5 - On December 6, 1993, defendant-appellees filed their motion for summary judgment and attached as support the depositions of Andrew Nagy and Sandra Nagy. In their motion, appellees contended that as a matter of law, they were entitled to judgment. Appellees contended that the open stairwell was not a latent, dangerous condition and did not require a warning. Further, appellees contended that Mr. Nagy's act of not turning on available lighting was the cause of his injuries. On January 21, 1994, appellants filed their brief in response to the appellees' motion for summary judgment. On February 4, 1994, the trial court entered summary judgment in favor of appellees, without opinion. On March 8, 1994, appellants filed their notice of appeal with this court, listing the following assignment of error for our review: THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT WHEN GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO WHETHER THE DEFENDANTS BREACHED THEIR DUTY TO WARN THE PLAINTIFFS OF A DANGEROUS CONDITION WHICH THE DEFENDANTS HAD KNOWLEDGE OF AND HAD REASON TO BELIEVE THE PLAINTIFFS WOULD NOT DISCOVER. The method by which a trial court can grant summary judgment in favor of a party is contained in Civ.R. 56(C), which provides in part: *** 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, - 6 - 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. No evidence or stipulation may be considered except as stated in this rule. Summary judgment shall be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. In Harless v. Willis Day Warehousing (1978), 54 Ohio St.2d 64, the supreme court held: Summary judgment is appropriate when the following factors have been established: "*** (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66; Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100. In order to defeat a motion for summary judgment brought in a negligence action, the plaintiff must identify a duty, or duties, owed to him by the defendant, and the evidence must be sufficient, considered most favorably to the plaintiff, to allow reasonable minds to infer that the duty was breached, that the breach of that duty was the proximate cause of the plaintiff's injury and that the plaintiff was injured. Feichtner v. City of Cleveland (1995), 95 Ohio App.3d 388; Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19; Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103. To - 7 - warrant a finding that the negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence alleged and that it was such as ought to have been foreseen in the light of the attending circumstances. Schroades v. Rental Homes (1981), 68 Ohio St.2d 20, 25; Springsteel v. Jones & Laughlin Steel Corp. (1963), 2 Ohio App.2d 353. In Ohio, the duty owed by a possessor of land to another depends upon the other's status in regard to the possessor of the land. Scheibel v. Lipton (1951), 156 Ohio St. 308. In the present case, both parties agree that the status which Mr. Nagy occupied on July 4, 1993 was that of a "social guest" of the appellees. In Scheibel, the Ohio Supreme Court addressed what duty is owed by a possessor of premises to a social guest. The court specifically concluded that a social guest is neither an invitee nor a licensee under the common usage these terms possess in tort law. Rather, a social guest is owed a duty unlike any other. The duty owed to a social guest was defined by the court, in paragraph 3, as follows: 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. - 8 - Thus, the duty of a host to a social guest is greater than the duty owed to a licensee or trespasser but does not rise to the level of the duty owed to an invitee. As the hosts of appellants, the appellees were obligated to exercise ordinary care and warn their guests of any conditions on their premises which a person of ordinary prudence and foresight should reasonably consider dangerous. Scheibel, supra. Therefore, the question before this court becomes: Construing the evidence in a light most favorable to the appellants, did the open stairwell represent a dangerous condition such that the appellees had an affirmative duty to warn their guests about its presence? If the stairwell did represent a dangerous condition, the appellees were only under a duty to warn the appellants if they had reason to believe that the appellants did not know of or were unlikely to discover the dangerous condition. Therefore, the threshold consideration for the determination of appellants' assignment of error is: Did the stairwell in the appellees' house represent a dangerous condition? In the present case, appellants contend that the combination of the darkness of the house, the swinging open of the back door and the darkened stairwell resulted in a hidden danger such that the appellees had a duty to warn the appellants. We do not agree. The mere fact that appellant fell does not establish any negligence on the part of the appellees. Jennings v. Ameritrust Co. (Oct. 6, 1994), Cuyahoga App. No. 66867, unreported; Green v. - 9 - Castronova (1966), 9 Ohio App.2d 156, 161. Rather, negligence must be proven by showing that a duty existed and that the appellees negligently failed to satisfy that duty. Feichtner, Keister, and Wellman, supra. In order to avoid summary judgment for the appellees, it was incumbent upon the appellants to produce evidence that would tend to show that the nature and design of the stairwell as it existed represented a dangerous condition. See, Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330. If the stairwell did represent a dangerous condition than the appellees would have had a duty to warn the appellants of the danger. To this end, the appellees presented the deposition testimony of Mr. and Mrs. Nagy. Both Mr. and Mrs. Nagy testified that the stairs could not be seen if the back door were open. In addition, Mr. Nagy testified that he entered the house through the front door and that at that time, the appellees' house was "pitch black." An essential element of appellants' theory of negligence is that the appellees knew or should have known that the house was dark. Appellants contend that appellees' knowledge that the house was dark imposed a duty on the appellees to warn Mr. Nagy of the danger of walking into a dark and completely foreign area of the appellees' house. As such, it is appellants' contention that appellees were under a duty to warn Mr. Nagy about the stairwell because the stairwell represented a dangerous condition in the darkened house. - 10 - In Jesweld v. Hutt (1968), 15 Ohio St.2d 224, 227, the Ohio Supreme Court addressed the issue of darkness. It stated the following: Darkness is always a warning of danger, and for one's protection it may not be disregarded. Its disregard may preclude the recover of damages for personal injuries. Also important in our determination of the existence of a dangerous condition is the holding of Baldauf v. Kent State Univ. (1988), 49 Ohio App.3d 46, wherein the court outlined the development of negligence law in Ohio as it pertains to invitees. The court stated, in Baldauf, at 49: People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. * * * The ordinary person can use or encounter all of these things safely if he is fully aware of their presence at the time. And if they have no unusual features and are in a place where he would naturally look for them, he may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge. - 11 - It must be remembered that the duty owed to an invitee by a possessor of land is greater than the duty owed by a possessor to a social guest. Scheibel, supra. In the present case, appellant Andrew Nagy admitted during deposition that he did not turn on any lights during his trip through the "pitch black" house. Moreover, appellant failed to show any evidence that the appellees' stairwell was of such configuration or design that it was abnormally different than an ordinary flight of stairs. On the contrary, appellees provided deposition testimony to show that the stairs were properly illuminated with the lights turned on. Applying the reasoning of Baldauf and Jesweld to the case before us, it becomes apparent that appellant knew or should have known that he was likely to encounter a stairwell somewhere in appellees' house. However, the appellant chose to disregard the "pitch black" darkness and continue to wander through an unfamiliar house searching for a bathroom. In so doing, appellant not only put himself in danger of falling down a stairwell but to injuring himself on numerous other common household conditions. The Scheibel decision imposes a duty upon a host to warn a social guest of any condition which the host should reasonably consider dangerous. In the case herein, the appellants failed to offer any evidence to show that the stairwell of the appellees' home was of such a condition that the appellees should have reasonably considered it to be dangerous. The appellees presented - 12 - evidence that the stairs were clearly visible with the light on or during the day. The mere design and location of the stairs did not present a dangerous condition on the appellees' premises. The design and position of the stairs in the present case is similar to that in thousands of homes. It was the appellant's disregard of the danger of darkness which caused his injuries, not any dangerous condition presented by the stairwell. Jesweld, supra. The law only states that a host has a duty to protect its social guests from conditions which one of ordinary prudence would consider dangerous. A person of ordinary prudence cannot consider a common stairwell dangerous. For the aforementioned reasons, we find that appellants failed to establish that the appellees owed any legal duty or breached a duty to appellants. Therefore, summary judgment was properly granted on appellants' causes of action. Accordingly, appellants' assignment of error is overruled. - 13 - It is ordered that appellees recover of appellants 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 Cuyahoga County 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. JAMES M. PORTER, J. TERRENCE O'DONNELL, J. CONCUR PRESIDING JUDGE DONALD C. NUGENT 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .