COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71309 JUNE WUERTZ, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : THOMAS M. SOLTIS, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 18, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 291963 JUDGMENT : AFFIRMED IN PART AND : REVERSED IN PART. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Stephen G. Thomas THOMAS & BOLES 36 South Franklin Street Chagrin Falls, Ohio 44022 For defendants-appellees: Thomas E. Dover GALLAGHER, SHARP, FULTON & NORMAN 7th Floor, Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 -2- For appellee, Brian Richard R. Kuepper Hocevar: KUEPPER, WALKER, HAWKINS & CHULICK 480 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-7550 -3- NAHRA, P.J.: Appellant June Wuertz, administratrix of the estate of Kathleen Zeleznik, appeals the grant of summary judgment for appellees, Brian, Cynthia, Kenneth, and Scott Hocevar and Thomas M. Soltis, in Wuertz's action for wrongful death. In the early morning hours on July 18, 1993, Kathy Zeleznik drowned in a small lake owned by Brian, Cynthia, Kenneth, and Scott Hocevar. The Hocevars, who are siblings, held a week-end long party they called Summer Fest II at their 32-acre property known as Gobbler's Knob. They encouraged their guests to camp out at the party and scheduled numerous activities throughout the weekend. The Hocevar's party began at noon on Saturday, July 17, 1993. Kathy Zeleznik, sister-in-law of Scott Hocevar, arrived at the party after 6:00 PM on Saturday. The record indicates that she had been at a bar during the day while her estranged husband attended the party with their children. Thomas Soltis first arrived at the party on Saturday afternoon, but was asked to leave as his name was not on the guest list. Soltis returned to the party later that evening after 9:00 PM. There is conflicting evidence over whether he had been invited; nevertheless, he was not asked to leave the party on Saturday evening, although the Hocevars knew of his presence. Late on Saturday night, a large group of persons gathered by a bonfire near the lake in which Kathy drown. Kathy went to bed at approximately 3:00 AM. She was visibly drunk at that time. The -4- last person left awake that night was Soltis, who stayed by the fire, not sleeping in a tent or a car. Soltis stated in his deposition that Kathy came out of her tent as the sun was rising. They talked, and Kathy told him that she wanted to go swimming. Soltis dissuaded her from swimming, stating that he wanted to go fishing instead. Soltis testified that they used a small bass boat and were on the lake for 10- 15 minutes before he heard her jump into the water. He said that he watched her swim for awhile, that she was not struggling, and that the last time he saw her, she swam under the boat. Soltis testified that after a short time he realized Kathy was not swimming near the boat. He stated he did not see her in the water and that he then looked for her on shore before waking people up to aid him in his search. A search was conducted of the area and divers eventually found Kathy's body in ten to twelve feet of water at the deepest part of the small lake. The autopsy indicated that Kathy had drowned and that her blood alcohol level was 0.38 grams per 100 milliliters. When Kathy's body was recovered, she was fully clothed, and no bruising or signs of struggle were noted. Appellant makes one assignment of error, presenting four separate issues for review. Appellant's assignment of error reads: THE TRIAL COURT ERRED WHEN IT GRANTED THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. (Docket Entry No. 86: Judgment Entry of September 4, 1996.) In the first and second issues appellant presents for review, appellant argues that a cause of action in negligence exists -5- against Soltis in that he assumed a duty to Kathy prior to going fishing on the boat, and while on the boat, he was negligent in not providing life-vests and allowing Kathy, his intoxicated passenger, to swim. In the third and fourth issues appellant presents for review, appellant argues that a cause of action in negligence exists against the Hocevars because a special relationship existed between the Hocevars and Soltis, and because, as hosts of the party, the Hocevars assumed a duty to protect Kathy from foreseeable harm that would be caused by Soltis as an uninvited guest. The trial court granted summary judgment to all defendants. A case decided upon summary judgment is reviewed de novo. Brown v. Scioto Bd. of Comm'rs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. A court may grant summary judgment pursuant to Civ.R. 56 when it determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274. We first address appellant's claims against the Hocevar family as hosts of the party. Appellant alleges that the liability attaches to the Hocevars because they maintained a special relationship with Soltis. In Gelbman v. The Second National Bank of Warren (1984), 9 Ohio St.3d 77, 458 N.E.2d 1262, the Ohio -6- Supreme Court, quoting Restatement of the Law 2d, Torts, 122, Section 315, stated that: There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct. Id. at 79, 458 N.E.2d at 1263 (quoting Restatement of the Law 2d, Torts, 122, Section 315.) Appellant cites also to this court's decision in Stoker v. Saxe (Feb. 13, 1992), Cuyahoga App. No. 59793, unreported, which cited Restatement of the Law 2d, Torts (1965) 122, Section 318, detailing a special relationship as such: 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 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. Id. (quoting Restatement of the Law 2d, Torts (1965) 122, Section 318. In Stoker, supra, we determined that a host of a party whose guest was injured by another guest was not liable where the plaintiff did not present any evidence that the host knew or should have known of the activity causing the injury. In this case, appellant merely presents the fact that Soltis was asked to leave -7- earlier in the day because his name was not then on the guest list and that he returned later. Appellant presents no evidence to indicate that the Hocevar family had any reason to know Soltis would negligently or intentionally harm their other guests. Accordingly, appellant cannot maintain an action against the Hocevars and summary judgment was properly granted the Hocevars. Appellant argues that the grant of summary judgment to Soltis was in error because he 1) was negligent in operating a boat without flotation devices and while under the influence of alcohol and 2) because he assumed a duty to Kathy, who was intoxicated, by dissuading her from going swimming and then placing her in a position worse off than she was. Appellant cites R.C. 1547.11 which provides in part: (A) No person shall operate or be in physical control of any vessel underway or shall manipulate any water skis, aquaplane, or similar device on the waters in this state if any of the following applies: (1) The person is under the influence of alcohol or a drug of abuse, or the combined influence of alcohol and a drug of abuse; *** R.C. 1547.25 provides in part that: (A) No person shall operate or permit to be operated any watercraft on the waters in this state: (1) Sixteen feet or greater in length, without carrying on board one type one, two, or three persoonal flotation device for each person on board and one type four personal flotation device; (2) Less than sixteen feet in length, incliding canoes, without carrying on board one type one, two, -8- three or four personal flotation devices for each person on board. *** R.C. 1547.34 provides: Violations of sections 1547.02 to 1547.36 of the Revised Code, which result in injury to persons or damage to property shall constitute prima-facie evidence of negligence in a civil action. Appellant cites to deposition testimony which indicates that Soltis operated the boat, that it did not have flotation devices aboard, and that he had been drinking alcohol in a close proximity in time prior to operating the boat on the lake. This evidence is sufficient to enable a trier of fact to find that Soltis violated R.C. 1547.11 and R.C. 1547.25. Soltis argues that even if he violated the Revised Code, appellant has presented no evidence that these violations resulted in Kathy's drowning, citing Gedra v. Dallmer (1950), 153 Ohio St. 258, 91 N.E.2d 256. In Gedra, the syllabus states that: 1. In a negligence action, it is essential for recovery that plaintiff prove by a preponderance of evidence not only that defendant was negligent but also that defendant's negligence was a direct or proximate cause of plaintiff's injury. In Gedra, the court stated that the evidence presented to show proximate cause may be either direct or inferential. 153 Ohio St. at 265, 91 N.E.2d at 260. In this case, if appellant shows that Soltis was intoxicated while operating the boat, an inference can be made that he failed to properly supervise his passenger, who he knew or should have known was intoxicated. Accordingly, the -9- appellant presented sufficient evidence to withstand summary judgment as to this issue. Appellant also argues that pursuant to Restatement of the Law, 2d, Torts, Section 324, Soltis assumed a duty to protect Kathy from danger and failed to do so because he dissuaded her from swimming and then provided a platform for her to swim in the deepest part of the lake. Restatement Section 324 provides that: One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge. In Comment B to Section 324, one who takes charge of another who is made helpless because of intoxication may be held liable. Appellant has presented evidence that Kathy was intoxicated, that Soltis dissuaded her from swimming, and that he then went onto the lake with her. Appellant argues that Soltis took charge of Kathy, who was made helpless by her intoxication, and then failed to adequately secure her safety by taking her onto a boat. We agree that if the trier of fact determines that Kathy was helpless and that Soltis assumed the duty of taking charge of Kathy, then it can reasonably be inferred that he then failed to exercise reasonable care while Kathy was in his charge. Accordingly, summary judgment was improperly granted to Soltis and we reverse that judgment. -10- We affirm the grant of summary judgment in favor of appellees Brian, Cynthia, Kenneth, and Scott Hocevar, and reverse the grant of summary judgment in favor of Thomas Soltis. Judgment affirmed in part, reversed in part. -11- This caused is affirmed in part and reversed in part for proceedings consistent with this opinion. Costs divided equally between plaintiff-appellant and defendant-appellee, Soltis. It is ordered that a special mandate be sent to said 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. KARPINSKI, J., CONCURS IN JUDGMENT ONLY. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .