COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68870 and 68871 ROY E. ALLUMS JR., ADM., : ETC., : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION DARRYL GILLENWATER, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 25, 1996 CHARACTER OF PROCEEDING : Criminal appeals from : Common Pleas Court : Case Nos. CR-240577 and : CR-254787 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Lawrence Friedlander Sanjay K. Varma CHATTMAN, SUTULA, FRIEDLANDER & PAUL 6200 Rockside Road Cleveland, Ohio 44131 Ronald R. Gilbert 1310 Ford Building Detroit, Michigan 48226-9946 For defendants-appellees, John V. Rasmussen Darryl and Sandra Gillenwater: 14650 Detroit Avenue Suite 450 Lakewood, Ohio 44107-9946 For defendant-appellee, Jeffrey W. VanWagner Litehouse Products, Inc.: Jay W. Pearlman ULMER & BERNE 1300 East Ninth Street Suite 900 Cleveland, Ohio 44114 For defendant-appellee, Joseph Tira Cornelius Pools, Inc.: QUANDT, GIFFELS & BUCK 800 Leader Building 526 Superior Avenue, N.E. Cleveland, Ohio 44114 For defendant-appellee, Frank Leonetti, III Swimline International Corp.: REMINGER & REMINGER The 113 St. Clair Building Cleveland, Ohio 44114 NAHRA, J.: Plaintiff-appellant, Roy Allum, Jr., is appealing the trial court's grant of summary judgment in favor of defendant-appellees Darryl and Sandra Gillenwater, Litehouse Products Inc., Cornelius Pools, Inc. and Swimline Corp. For the following reasons, we affirm. Appellant Roy Allum, Jr. filed this action as administrator of the estate of Joyce Allums, decedent. Joyce Allums, a thirty-four year old mother of three, was invited to the home of Darryl and Sandra Gillenwater to go swimming. Joyce had never been in the Gillenwater's pool before. The Gillenwaters had an above-ground pool, approximately four feet in depth. The pool was purchased from Litehouse Products, manufactured by Cornelius Pools and the pool liner was manufactured by Swimline Corp. Mr. Gillenwater had constructed a raised platform ten inches higher than the pool deck, to put the solar cover on. The platform was covered with rubber material and indoor/outdoor carpeting. Darryl Gillenwater and Joyce were jumping and diving off of the raised platform. Darryl was the first to dive in. He executed shallow racing dives and "belly-flops". Darryl and Joyce engaged in a belly-flopping contest. There was no evidence as to who started the contest and no evidence the Gillenwaters said anything to encourage Joyce to dive in the pool. The Gillenwaters did not warn Joyce not to dive into the pool and there were no warning -3- signs posted. Prior to the accident, Joyce had been in and out of the water twenty or thirty times. The witnesses gave different testimony as to how the accident occurred. Joyce's father, Francis Lowe, deposed that he saw Joyce slip as she was about to dive off the platform. Gail Gifford, another guest, testified that Joyce dove into the pool with her hands above her head, and was injured. The Gillenwaters and Joyce's mother, Irene Lowe, deposed that Joyce said in the hospital that she fell into the pool. Joyce sustained a cervical spinal cord injury which resulted in her death. Plaintiff-appellant filed a complaint against the Gillenwaters (case no. 240577), and another complaint against Litehouse Pools, Cornelius and Swimline (case no. 254787). The trial court consolidated these cases. The Gillenwaters filed a motion for summary judgment, which the trial court denied on October 14, 1993. Defendants- Gillenwaters motioned for reconsideration. The trial court reconsidered and denied the motion for summary judgment again on November 9, 1993. When the trial court made these two rulings, the parties had filed depositions of all the eyewitnesses, Francis and Irene Lowe, Gail Gifford and the Gillenwaters. Also before the court was a report of plaintiff's expert, Paul Walsh, an engineer. Walsh stated that the additional ten inches of height of the platform created a danger by increasing the velocity and impact of a diver. -4- Subsequent to November 9, 1993, a second deposition was taken of Darryl and Sandra Gillenwater. The deposition is only partially attached to the motions for summary judgment of defendants Litehouse Pools, Cornelius Pools and Swimline. Darryl Gillenwater stated he had warned people in the past not to dive into the pool. The Gillenwaters received various warning labels and safety pamphlets with the pool. Depositions of Joyce's treating physician and depositions of employees of Litehouse, Cornelius and Swimline were also taken. Plaintiff's expert Marty Greenlaw, a specialist in aquatic safety, was also deposed. Greenlaw stated in his report that the ten inch platform created an unreasonable risk of harm. The expert also stated the Gillenwaters should not have permitted Joyce to dive into the pool and should have posted warning signs. A report by Gillenwaters' insurance company was submitted in evidence, which stated that the friction on the wet platform was safe and that ANSI did not require "no diving" signs. On March 30, 1995, the trial court granted the motions for summary judgment of Litehouse, Cornelius and Swimline. The parties agreed that this ruling was a final appealable order and the trial court de-consolidated the suit against the Gillenwaters and the suit against Litehouse, et. al. On June 30, 1995, one and one half years after the Gillenwaters' motion for summary judgment was denied, the trial court sua sponte reconsidered Gillenwaters' motion for summary judgment and granted same. The two cases were consolidated on appeal. -5- I. Plaintiff-appellant's first assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY WAY OF A NUNC PRO TUNC ENTRY, WITHOUT PROVIDING THE PLAINTIFF WITH AN OPPORTUNITY TO EITHER SUPPLEMENT THE MOTION WITH ADDITIONAL DISCOVERY, WHICH HAD BEEN COMPLETED PRIOR TO TRIAL, OR TO FURTHER BRIEF, OR PARTICIPATE IN ORAL ARGUMENT ON THIS MATTER. The trial court may sua sponte reconsider the denial of a motion for summary judgment. Beim v. Jemo Assoc., Inc. (1989), 61 Ohio App.3d 380, Chubb Group of Insurance Companies v. Guyuron (Dec. 14, 1995), Cuyahoga App. No. 68468, unreported. However, if the reconsideration is based on new evidence or new issues, the court must give notice to the parties and an opportunity to respond. Vanmeter v. Lawrence County (July 8, 1994), Lawrence App. No. 93CA27, unreported, Slavens v. Spetnagel (Sept. 28, 1994), Jackson App. No. 93 CA 727, unreported. In this case, additional discovery took place after the trial court initially denied Gillenwater's motion for summary judgment. This new evidence could not have aided the plaintiff in showing that questions of material fact existed, for the reasons discussed below. Nor did the additional evidence aid defendants beyond the evidence that was in the record already. Therefore, the court's reconsideration of summary judgment without notice to the parties was not prejudicial. The additional discovery did not show the Gillenwaters had a duty of care to plaintiff, a social guest. A host who invites a social guest to his premises owes a guest the duty (1) to exercise ordinary care not -6- 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. Scheibel v. Lipton (1951), 156 Ohio St. 308. Gillenwaters did not have a duty to warn plaintiff about the platform because there was no evidence defendants knew or should have known about the danger posed by the platform. See Triplett v. Motter (Sept. 29, 1986), Auglaize App. No. 2-85-19, unreported. In fact, the danger of the raised platform had to be explained by plaintiff's expert, an engineer. As for the danger of diving into shallow water, this danger was obvious to both defendants and the plaintiff. See Hagar v. Griesse (1985), 29 Ohio App.3d 329, Toopes v. Gutierrez (Mar. 30, 1993), Miami App. No. 92 CA 38, unreported, Christman v. Senyk (C.P. 1972), 34 Ohio Misc. 47. Although the additional evidence solidified that defendants knew of the danger, the evidence indicates the danger was obvious to plaintiff. Building the ten inch platform was not an act performed while the plaintiff was on the premises. See Triplett, supra. Appellant asserts that Gillenwaters caused injury to plaintiff by encouraging her to dive into the pool, an act of the host which occurred while plaintiff was on the premises. Conceivably there could be evidence of encouraging in the portions of the Gillenwaters' second deposition which were not on the record. However, reasonable minds can not conclude that such encouraging was the direct or proximate -7- cause of the injuries. The decedent's act of diving into the pool of her own volition caused the injuries. There is nothing in the additional evidence which conceivably could have aided the plaintiff. The trial court did not err in reconsidering defendants' motion for summary judgment without giving notice to the parties. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT, AS THERE ARE GENUINE ISSUES OF FACT TO BE RESOLVED BY THE TRIER OF FACT. As discussed above, appellant was unable to set forth any evidence showing that the Gillenwaters had a duty of care towards the decedent. In order to recover on a negligence theory, a plaintiff must establish a duty of care on the part of the defendant. See Keister v. Centre Park Lanes (1981), 3 Ohio App.3d 19. On summary judgment, the non-moving party has an affirmative duty to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108. Because appellant failed to set forth any evidence of duty of care, there was no genuine issue of fact and reasonable minds can only conclude that the Gillenwaters were not negligent. See Civ. R. 56(C), Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. The trial court did not -8- err in granting summary judgment in favor of the Gillenwaters. See Id. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS CORNELIUS, LIGHTHOUSE'S AND DEFENDANT SWIMLINE'S MOTION FOR SUMMARY JUDGEMENT WHEN THERE WERE GENUINE ISSUES OF MATERIAL FACTS PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 56. The facts on the record pertinent to these defendants are as follows: The pool was installed in 1988 by a contractor selected by Litehouse. Jim Wallace of Cornelius Pools testified that when the pool left the factory it had three "no diving" decals affixed to it, one on the wall of the pool, and two on the ledge. Jim Bowen of Litehouse deposed that sometimes the pools had labels already affixed, and sometimes did not. The Gillenwaters pool had a decal on the outside wall of the pool, but it was not visible to swimmers. There were no decals on the ledge. The Gillenwaters did not remember seeing any of the warning decals. The pool ladder had the warning "do not dive" in raised letters. There were no warning labels on the pool liner. The Gillenwaters went over information contained in a safety envelope that came with the pool. The safety envelope included a brochure entitled, "Using Your Pool Sensibly", which stated that one should not dive into an above-ground pool. The complaint alleged that Litehouse, Cornelius and Swimline were liable for strict liability for failure to warn, negligent -9- failure to warn, strict liability for defective design or manufacture, breach of warranty and fraud. A product is not defective under a strict liability theory for failure to warn if the risk presented by the product is an open and obvious risk that is a matter of common knowledge. R.C. 2307.76(B), see also R.C. 2315.20(B)(1),(2). In this case, reasonable minds can only conclude that the risk of diving into four feet of water was an open and obvious risk that was a matter of common knowledge. See generally Chaney v. Newco of Janesville, Inc. (June 16, 1992), Marion App. No. 9-91-45, unreported. Ohio courts have held that the risks of diving into shallow water are open and obvious to an adult of average intelligence. See Benjamin v. Deffet Rentals (1981), 66 Ohio St. 2d 86. As for negligent failure to warn, appellees urge that a manufacturer has no duty to warn of open and obvious dangers. Taylor v. Yale Town Manuf. Co. (1987), 36 Ohio App.3d 62, Keopke v. Crossman Arms Co. (1989), 65 Ohio App.3d 1, Hanlon v. Lane (1994), 98 Ohio App.3d 148. The open and obvious nature of the defect resulted in no duty of care, so the plaintiff's assumption of risk was a primary assumption of risk. See Teggart v. Irwin Pools (Aug. 13, 1990), Richland App. No. CA-27744, unreported, see generally Siglow v. Smart (1987), 43 Ohio App.3d 55. Primary assumption of risk is a complete defense to negligence and survives the adoption of the comparative negligence statute. Id. Appellant asserts that the assumption of risk by the plaintiff of diving into four feet of water was not primary assumption of -10- risk, but secondary or implied assumption of risk, as was held in Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35 (suit against pool club), and Stanton v. Miller (1990), 66 Ohio App.3d 201 (suit against pool supplier and pool manufacturer), but see Teggart, supra. Implied assumption of risk is akin to contributory negligence and is not a complete defense to a negligence action, unless the plaintiff's negligence was clearly greater than the combined negligence of the defendants. Id., see also R.C. 2315.20(B)(3). Primary assumption of risk occurs when certain risks are so inherent in some activities that they can not be eliminated. Id.. Collier held that the risks of diving into a shallow pool are not so inherent as to relieve the pool owner of any duty to all divers, because some divers are young or inexperienced and may not appreciate the risk. Assuming, without deciding, that diving in shallow water involves implied assumption of risk, we feel that in this case, the decedent's negligence in diving into the in-ground pool was clearly greater than the combined negligence of the defendants. See Collier, supra, Davis v. Home & Roam Leisure Products (Oct. 24, 1990), Hamilton App. No. C-890640, unreported. Joyce Allums had been in and out of the pool and knew the depth of the water. The danger was open and obvious to Joyce, an adult of at least average intelligence. Reasonable minds can only conclude that the decedent's death was caused to a greater extent by the decedent's negligent actions, and not by the action or inaction of defendants. -11- Id. Summary judgment was proper on the issue of negligent failure to warn. Appellant presented no evidence of an express warranty that the pool was safe for jumping or diving. Any cause of action for implied warranty is merged with the cause of action for strict liability. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 320. Likewise, appellant presented no evidence of a misrepresentation of a material fact to support its fraud claim. See Russ v. TRW, Inc. (1991), 59 Ohio St.3d 42, 49. In connection with the fraud claim, appellant alleged violations of the Consumer Product Safety Act. Such act does not provide a private cause of action. See Stanton v. Miller (Feb. 21, 1990), Hamilton App. No. C-870623, unreported. Appellant presented no evidence the pool did not conform to the manufacturer's specifications and was therefore defective in manufacture or construction. See R.C. 2307.74. The product was not defective in design or formulation because the harm for which the plaintiff seeks recovery, ie. the harm caused by diving into four feet of water, was caused by an inherent characteristic of the pool which is recognized by the ordinary person. See R.C. 2307.75(E). Appellant presented no proof that the pool was defective and appellees were entitled to summary judgment on the appellant's claim for defective design or manufacture. There were no genuine issues of fact concerning appellant's claims against Litehouse, Cornelius and Swimline, and these -12- defendants were entitled to judgment as a matter of law. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -13- 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 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. PATTON, J., CONCURS. MATIA, DAVID T., P.J., DISSENTS. (See attached dissenting opinion.) JOSEPH J. NAHRA 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68870 and 68871 ROY E. ALLUMS, JR., ADM., : ETC. : : PLAINTIFF-APPELLANT : : D I S S E N T I N G v. : : O P I N I O N DARRYL GILLENWATER, ET AL. : : DEFENDANTS-APPELLEES : DATE: APRIL 25, 1996 MATIA, P.J., DISSENTING: I respectfully dissent from the majority's judgment in this appeal. In Maxey v. Lenigar (1984), 14 Ohio App.3d 458, the court held: An order overruling a motion for summary judgment is subject to revision at any time prior to the entering of a final judgment in the case to correct an error made by the court. If the trial court errs in overruling a motion for summary judgment, it is not necessary that the court wait until the judgment is reversed upon appeal, but, instead, the court may correct its error either upon a motion for reconsideration or upon a new motion for summary judgment predicated upon the same law and facts. Thus, a trial court may correct its own error denying a motion for summary judgment upon two conditions: 1) the correction is made before the entry of a final judgment and 2) the court's decision stems from a parties' motion to reconsider or a new motion for summary judgment predicated upon the same law and facts. See, also, Glick v. Dolin (1992), 80 Ohio App.3d 592. -15- -2- In the case sub judice, there is no dispute that additional discovery took place after the trial court originally denied the Gillenwaters', defendants-appellees', motion for summary judgment. The majority concedes that there "could be evidence of encouraging in the portions of the Gillenwaters' second deposition which were not in the record." While the majority believed reasonable minds could not have concluded such encouraging was the direct or proximate cause of the accident, I believe such a conclusion is one to be made by the trier of fact after reviewing said evidence. Where extensive discovery has been completed after the court's original denial of a motion for summary judgment, the trial court is required to give notice to both parties alike of its intent to reconsider its prior ruling and permit them sufficient opportunity to present evidentiary materials permitted under Civ.R. 56(C) which would demonstrate or negate a genuine issue of material fact. See Vanmeter v. Lawrence County (July 8, 1994), Lawrence App. No. 93CA27, unreported. This, I believe, not only comports with the intent behind Civ.R. 56 as being a factual inquiry, but it also ensures a litigant's right to a trial where conflicting facts and inferences exist. Finally, it cannot be argued that the trial court's actions were predicated upon Cornelius', Lighthouse's and Swimline's, defendants-appellees', motion for summary judgment because the law and facts argued in those motions differed from those found -3- in the Gillenwaters', defendant-appellees', motion for summary judgment. .