Pratt and Buchert, Joseph R. Matejkovic, 56 South Main Street, Middletown, Ohio 45044, for plaintiffs-appellants.
Young & Alexander Co., L.P.A., Mark R. Chilson, 367 West Second Street, Dayton, Ohio 45402, for defendants-appellees.
Judges: Walsh, Jones, Young
Plaintiffs-appellants, Timothy J. and Sondra G. Pressler, appeal a decision of the Warrent County Court of Common Pleas granting a motion for summary judgment filed by defendants-appellees, James E. and Patricia A. Calhoun.
This action arose as a result of injuries sustained by Timothy Pressler ("Pressler") on July 26, 1992 while attending a social gathering at the residence of appellees. Appelles had constructed a volleyball court in their backyard, and the net was anchored by ropes running from the top of the net poles to metal tent stakes driven into the ground. The stakes were not driven completely into the ground; rather, they stuck out above the grass level approximately two to three inches.
Pressler had been playing volleyball on this court for approximately one hour without incident before he decided to go swimming in appellee's pool. A short time later, Pressler resumed playing volleyball in his bare feet and was injured when he stepped on one of the protruding stakes while chasing an out-of-bounds ball.
Appellants subsequently filed this negligence action against appellees on January 27, 1993. In their complaint, appellants claimed that appellees created a dangerous and hidden condition upon their premises, namely, the metal stakes which secured the volleyball net, and failed to warn appellants of this condition. Appellees filed a motion for summary judgment on August 24, 1993, which was granted by the trial court in a decision and judgment entry issued February 28, 1994. Appellants contend that such was error. We disagree
The duty owed by a host to a social guest with respect to conditions on the premises has been articulated by the Ohio Supreme Court as follows:
A host who invites a social guest to his premises owes the guest the duty * * * 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. (Emphasis added.)
Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453, paragraph three of the syllabus. See, also, Hager v. Griesse (1985), 29 Ohio App.3d 329, 331, 505 N.E.2d 982 (host owes duty to warn social guest of concealed or hidden dangers upon premises).
Accordingly, appellees had no duty to warn appellants of any arguable dangerous condition presented by the stakes unless appellees had reason to believe appellants did not know of and would not discover such dangerous condition. See Scheibel, supra. Appellees submitted into evidence a photograph of the volleyball court taken on the date of the accident which shows that the volleyball net, poles, supporting ropes, and protruding stakes were clearly visible. While Pressler, in his deposition, denied observing the stakes anchoring the ropes, he admitted that he had not been looking for them. Pressler further admitted that he had been playing volleyball for one hour prior to the accident and knew that the tight support ropes were being anchored to the ground by at least something.
Thus, even assuming that a reasonable person would consider the stakes as a dangerous condition, appellants failed to produce sufficient evidence upon which a reasonable person could conclude that appellees had reason to believe appellants did not know of and would not discover the presence of the stakes. See Id. See, also, Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095 (a motion for summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the burden of production at trial). The trial court correctly concluded, at pages 2-3 of its opinion, that "a person of ordinary prudence and foresight was entitled to assume that a participant in volleyball in the setting depicted and for a period of one hour would have discovered that there were stakes anchoring the net and sticking out of the ground."
As such, under Schneibel, appellees had no duty to warn appellants of the stakes. The trial court therefore properly granted summary judgment to appellees as there exist no genuine issues of material fact and appellees are entitled to judgment as a matter of law. See Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267. Appellants' sole assignment of error is accordingly overruled.
JONES, P.J., and YOUNG, J., concur.