COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71694 CHARLES GWIN, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION PHI GAMMA DELTA FRATERNITY, : ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 16, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 271872 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Adam E. Carr James A. Sennett Roger H. Williams WILLIAMS & SENNETT CO. 126 W. Streetsboro Street Suite 4 Hudson, Ohio 44236 For defendant-appellee, Ed E. Duncan Phi Gamma Delta Fraternity: ARTER & HADDEN 1100 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1475 For defendant-appellee, Thomas R. Pahys Big Penny/Club Illusion: CORPAS & PAHYS 18123 Sloane Avenue Lakewood, Ohio 44107-3107 For defendant-appellee, Henry DeBaggis Boarding House: Donald M. Levy 2240 Illuminating Building 2 55 Public Square Cleveland, Ohio 44113 For defendant-appellee, Joel A. Makee Case Western Reserve Peter M. Poulos University: KELLEY, McCANN & LIVINGSTONE 35th Floor - BP America Building 200 Public Square Cleveland, Ohio 44114-2302 Brent M. Buckley BUCKLEY, KING & BLUSO 1400 Bank One Center Cleveland, Ohio 44114-2652 3 NAHRA, P.J.: Appellants, Clare Gwin, Administratrix of the Estate of Charles Gwin1, Clare Gwin, Henry Gwin, brought an action for decedent's injuries sustained at the Phi Gamma Delta Fraternity house located near the campus of Case Western Reserve University in Cleveland, Ohio on June 14, 1992. They appeal the grant of summary judgment in favor of appellees: Xi Deuteron Chapter, Phi Gamma Delta Fraternity, The Fraternity of Phi Gamma Delta International, Robert W. Niebaum, Phi Gamma Delta Fraternity Advisor, Xi Deuteron Building Association Company, Kenneth C. Frye, Scott Balaban, Mark Breuning, Mark Adams, Mike Pati, and Joseph Miller (hereinafter collectively referred to as the Fraternity appellees ); Case Western Reserve University ( CWRU ); Boarding House, Inc., d.b.a. The Boarding House Restaurant & Jazz Club and M.B.H., Inc., d.b.a. The Boarding House Deli & Carry-Out (hereinafter collectively referred to as the Boarding House appellees ); and Gus Stassis and Mike Papanikolou formerly doing business as Big Penny Restaurant, Big Penny Restaurant, Inc., and Club Illusion (hereinafter collectively referred to as the Club Illusion appellees ). Between 8:00 and 9:00 PM, June 13, 1992, Charles Gwin, then 19 years of age and a student at Ohio State University, went to the Phi Gamma Delta Fraternity house with his friend Chad Dobson, a member of the fraternity. After they arrived at the fraternity, 1 Clare Gwin, Administratrix of the estate of Charles Gwin, was substituted as the proper party to bring this appeal following Charles Gwin's death on January 1, 1997. 4 they went to the Boarding House Deli and purchased a 12-pack of beer and returned. Gwin and Dotson joined several other persons gathered on the roof of the house and Gwin drank at least ten of the beers they purchased. The roof of the fraternity has a flat center, sloping sides, and no guardrails or barriers between the flat and sloped areas. Dotson stated that Gwin was hesitant about nearing the sloped portion of the roof. After drinking the first 12-pack of beer, Gwin and Dotson bought a second 12-pack of beer at the Boarding Housed, and returned to the fraternity. Later, Gwin, Dotson, and others at the house went to Club Illusion. At the club, Gwin purchased a pitcher of beer, drank most of it by himself, and he and Dotson returned to the house where Gwin wanted to go back on the roof. Gwin went back onto the roof of the house, taking the second 12-pack of beer with him. Eventually only Gwin and Adrienne Cruz remained upon the roof where they fell asleep. Cruz awoke, realized that Gwin was no longer on the roof, and found him lying in the parking lot next to the house. Gwin suffered serious, permanent injuries from his fall. In granting summary judgment, the trial court separated appellees into three groups of defendants: the Fraternity defendants; CWRU; and the Boarding House and Club Illusion defendants and entered separate judgment entries in determining their respective motions for summary judgment. We note first that the trial court's November 4, 1996 judgment entry granting summary judgment in favor of the Fraternity 5 appellees does not include a grant of summary judgment in favor of Kenneth Frye, Scott Balaban, Mark Bruening, Mark Adams, and Mike Pati, officers of the Fraternity listed as defendants in appellant's amended complaint. As of this appeal, the claims against these defendants have not been adjudicated and under R.C. 2505.02 and Civ.R. 54(B), we would not normally address this appeal. However, the Ohio Supreme Court has stated: [E]ven though all the claims or parties are not expressly adjudicated by the trial court, if the effect of the judgment as to some of the claims is to render moot the remaining claims or parties, then compliance with Civ.R. 54(B) is not required to make the judgment final and appealable. Wise v. Gursky (1981), 66 Ohio St.2d 241, 20 O.O.3d 233, 421 N.E.2d 150; see, also, Harleysville Mut. Ins. Co. v. Santora (1982), 3 Ohio App.3d 257, 3 OBR 289, 444 N.E.2d 1076. General Accident Ins. Co. v. Ins. Co. of North America (1989), 44 Ohio St.3d 17, 21, 540 N.E.2d 266, 270-71. In this case, appellant has not made claims against Kenneth Frye, Scott Balaban, Mark Bruening, Mark Adams, and Mike Pati which are separate than those made against the other Fraternity appellees. The grant of summary judgment to the Fraternity appellees thus acts to render moot the claims against them. For this reason, we find that we have jurisdiction to decide this appeal upon its merits. I. Appellants' first assignment of error addressing the trial court's November 4, 1996 journal entry reads: . THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE FIJI APPELLEES. 6 A grant of summary judgment is reviewed de novo. See, 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. Appellants argue that the trial court erred in granting the Fraternity appellees summary judgment on three separate theories of liability: first, that the Fraternity appellees owed a duty to Charles Gwin on the basis of their status as social hosts and landoccupiers; second, that they are liable because they violated R.C. 4301.69(B) which prohibits persons from knowingly allowing underage persons to consume or possess beer upon their premises; and third, that they abandoned Gwin in a position of peril. A. We first address appellants arguments as they relate to the duties of the Fraternity appellees as social hosts and landoccupiers. In Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453, paragraph three of the syllabus reads: 3. A host who invites a social guest to his premises owes 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 7 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. As to the first duty owed by social hosts under Scheibel, appellants argue that the Fraternity appellees are liable because they allowed Gwin to go onto the roof in an intoxicated state and left him there with another guest. Appellants rely on the syllabus of DiGildo v. Caponi (1969), 18 Ohio St.2d 125, 247 N.E.2d 732, which reads in part: 2. The duty owed by a landoccupier to his social guests presupposes that the amount of care required to discharge that duty will vary depending upon the circumstances, one of which is the infancy of the guest or the guest's inability to discern danger or both. Appellants claim that Gwin's intoxicated condition, which was known to the Fraternity appellees, are circumstances which act to increase appellees' duty of care to warn Gwin of the danger of falling off the roof of the house. In DiGildo, supra, the court determined that the doctrine imposing a greater standard of care upon persons where children of tender years are concerned is applicable to vary the standard of care of a social host as set forth in Scheibel, supra. In this case, Gwin voluntarily became intoxicated. The imposition of a greater standard of care regarding a person who has voluntarily become intoxicated is not within our understanding of the greater duty of care imposed upon a landoccupier as enunciated in DiGildo. We find that a condition of voluntary intoxication, rather than the involuntary condition of infancy, distinguishes 8 this case from DiGildo and there is no higher standard of care imposed upon landoccupiers in addition to the standard of ordinary care required by Scheibel. We note that appellants have not cited any Ohio law that equates voluntary intoxication to infancy or physical disability which would impose a higher standard of care upon landoccupiers. Our review of case law regarding recovery for injuries caused by voluntary intoxication leads us to believe that this position would be untenable in Ohio. In Smith v. The 10th Inning, Inc. (1990), 49 Ohio St.3d 289, 291, 551 N.E.2d 1296, 1298, after holding that an intoxicated patron has no cause of action against the permit holder who served the patron alcohol, the court stated: ***[W]e find that one of the strongest reasons compelling rejection of such a cause of action by the intoxicated patron against the permit holder is one grounded firmly in commonsense public policy; namely, that an adult who is permitted to drink alcohol must be the one who is primarily responsible for his or her own behavior and resulting voluntary actions. Clearly, permitting the intoxicated patron a cause of action in this context would simply send the wrong message to all our citizens, because such a message would essentially state that a patron who has purchased alcoholic beverages from a permit holder may drink such alcohol with unbridled, unfettered impunity and with full knowledge that the permit holder will be ultimately responsible for any harm caused by the patron's intoxication. In our opinion, such a message should never be countenanced by this court. (Emphasis added.) Appellants' argument that the landoccupier owes a higher standard of care to a voluntarily intoxicated adult is not persuasive. The second duty imposed upon social hosts in Scheibel is not applicable to this case. Gwin fell from the roof of the fraternity 9 house. The danger and risk involved in venturing onto a roof is open and obvious and the owner of a premises has no duty to warn guests of open and obvious dangers. See, Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642; Prest v. Delta Delta Delta Sorority (Nov. 21, 1996), Franklin App. 96APE04-523, unreported. Appellants finally argue that as landlords the Fraternity appellees are liable because they violated City of Cleveland building ordinances and R.C. 5321.04(A)(1). R.C. 5321.045 reads in part: (A) A landlord who is a party to a rental agreement shall do all of the following: (1) Comply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety; (2) Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition; (3) Keep all common areas of the premises in a safe and sanitary condition. *** Appellants claim that the Fraternity appellees violated City of Cleveland Codified Ordinances 3101.09 and 3101.10(e) by not having guardrails on the roof of the fraternity house. Cleveland Codified Ordinance 3101.09 requires a landlord to be responsible for the City of Cleveland's Building Code and Cleveland Codified Ordinance 3101.10 reads in part: (e) Maintenance of Exterior Property Areas. Exterior property areas of all premises shall be kept free of any object, wrecked, dismantled, inoperative, discarded, unused or unlicenced motor vehicles, except where permitted under Zoning Code ordinances. 10 The premises shall be maintained free of any debris, material or condition which may create a health, accident or fire hazard, or which is a public nuisance. *** We do not find that an unguarded roof violates the city ordinance as argued by appellants. The record does not reflect that the roof was not maintained as a roof or that the condition of the premises was such that it could be considered a health, accident, or fire hazard or a public nuisance. For these reasons, we find that the Fraternity appellees did not violate any duty owed Gwin in their capacity as social hosts or landoccupiers. B. Appellants second theory of liability is that the Fraternity appellees are liable for Gwin's injuries because they were in violation of R.C. 4301.69. R.C. 4301.69 states in part: (B) No person who is the owner or occupier or any public or private place shall knowingly allow any underage person to remain in or on the place while possessing or consuming beer or intoxicating liquor, unless the intoxicating liquor or beer is given to the person possessing or consuming it by that person's parent, spouse who is not an underage person, or legal guardian and the parent, spouse who is not an underage person, or legal guardian is present at the time of the person's possession or consumption of the beer or intoxicating liquor. *** Appellants argue that the Fraternity appellees liability based upon a violation of R.C. 4301.69 is supported by Gressman v. 11 McClain (1988), 40 Ohio St.3d 359, 533 N.E.2d 732, in which the court stated: It is well settled that where a legislative enactment imposes a specific duty for the protection of others, a person's failure to observe that duty constitutes negligence per se. We recognized that principle in Mitseff [v. Wheeler (1988), 38 Ohio St.3d 112, 526 N.E.2d 798] and we apply it here. There is no legal distinction between the violation of a duty not to furnish intoxicating beverages to a minor and the violation of a duty not to furnish intoxicating beverages to an intoxicated person. The common goal in each instance is to protect the consumer of the beverage from his or her own conduct and to protect the public from such conduct. Id. at 362; 533 N.E.2d at 735 (citations omitted). However, in Smith, supra,the Ohio Supreme Court later limited its understanding of the purpose of R.C. 4301.22, stating: While in Gressman, supra, we noted that one of the purposes of R.C. 4301.22(B) is * * * to protect the consumer of the beverage from his or her own conduct as well as to protect the public at large from the imbiber's conduct, we do not believe that the statute should be used as a deep pocket in order to ameliorate the patron's own drunken behavior. 49 Ohio St.3d at 291, 551 N.E.2d at 1297-98. In Lee v. Peabody's Inc. (June 9, 1994), Cuyahoga App. 65090, unreported, we determined that the holding of Smith, supra, prohibiting a patron from suing a permit holder for his own injuries proximately caused by his own intoxication, was applicable to an adult who was still underage within the meaning of R.C. 4301.69. Accordingly, an adult cannot sue a permit holder for injuries proximately caused by his own intoxication. Lee, supra; Cole v. Broomsticks, Inc. (1995), 107 Ohio App.3d 573, 669 N.E.2d 12 253; see, also, Ramsay v. Kenyon College (Oct. 31, 1985), Knox App. 85-CA-01, unreported. Although the Fraternity appellees are not permit holders, we believe that the reasoning applicable in Lee is applicable for social hosts furnishing alcohol to adults, even though underage for the purposes of R.C. 4301.69. We find that the Fraternity appellees are not liable for injuries Gwin, an adult, suffered due to his own intoxication. C. Appellants third theory of liability that the Fraternity appellees violated a duty by abandoning Gwin in a position of peril. Appellants cite to Prosser & Keeton, Law of Torts (5 Ed. 1984), 375 Section 56, as well as case law from other states. We do not find that the Fraternity appellees are liable under this theory. The duty contemplated by Prosser & Keaton, supra, is to refrain from abandoning a person in peril, where that person has been placed in peril due to a defendant's own negligence. See, Prosser & Keeton, supra, at 377. In this case, we have not found the Fraternity to be negligent. Accordingly, as the Fraternity appellees were not negligent, Gwin's circumstance was not a product of their negligence. Appellants' cannot maintain a cause of action. As the court properly granted summary judgment as to the Fraternity appellees, appellants' first assignment of error is overruled. 13 II. Appellants' second assignment of error reads: II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE CWRU. In their apppellate brief, appellants argue that CWRU is liable for Gwin's injuries on the theory of respondeat superior in that CWRU exercises substantial and continuing control over its fraternities by annually inspecting the fraternity residences and by publishing both individual and organizational policies which proscribe underage drinking. We note that in order to impose liability under the doctrine of respondeat superior, it is neccessary to impose liability upon CWRU's agent , the Fraternity appellees. See, Strock v. Pressnell (1988), 38 Ohio St.3d 207, 217. We have not found liability on the part of the Fraternity appellees and cannot impute liability on CWRU for Gwin's injuries to CWRU. Moreover, we doubt that the Fraternity appellees as both a student organization as well as individual students could be found to be agents of CWRU. See, Hanson v. Kynast (1986), 24 Ohio St.3d 171, 494 N.E.2d 1091 (student-athlete for univerity not an agent of university while playing lacrosse). However, appellants' argument that CWRU is liable for failing to enforce its policies regarding its student conduct and/or its policies regarding its student organizations conduct is an argument for finding CWRU negligent in its own capacity. In this case, CWRU has published policies which address individual and organizational 14 conduct concerning underage drinking which in essence prohibit the violation of R.C. 4301.69(B). As we have not found any liability on the part of the Fraternity appellees for violating R.C. 4301.69(B) because Gwin was an adult, we similarly cannot find liability on the part of CWRU where its policies, which echo R.C. 4301.69(B), are violated by an adult not subject to discipline by CWRU. For these reasons, we find that summary judgment was properly granted to CWRU. Appellants' second assignment of error is overruled. III. Appellants' third assignment of error reads: III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE BOARDING HOUSE APPELLEES. Appellants argue that both the Boarding House appellees and the Club Illusion appellees are liable for violating R.C. 4301.69(B), and pursuant to R.C. 4399.18, are liable for Gwin's injuries as they sold intoxicating beverages to an underage person and/or knowingly served an intoxicated patron. As stated in Part I. B., supra, a voluntarily intoxicated adult, even though underage for the purposes of consuming alcohol, cannot maintain a cause of action for his or her own injuries against the permit holder who sold the intoxicating beverages. See, Cole v. Broomsticks, Inc., supra; Lee v. Peabody's Inc., supra; Ramsay v. Kenyon College, supra. 15 The grant of summary judgment to the Boarding House and Club Illusion appellees was proper and appellants' third assignment of error is overruled. Judgment affirmed. 16 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 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. O'DONNELL, J., and ROCCO, J., CONCUR. 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 .