Saliba v. Miley

[Cite as Saliba v. Miley, 2021-Ohio-3638.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

NOBLE COUNTY

KEVIN SALIBA et al.,

Plaintiffs-Appellants,

v.

MICHAEL MILEY et al.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY

Case No. 21 NO 0481

Civil Appeal from the

Court of Common Pleas of Noble County, Ohio

Case No. CVC 219-0078

BEFORE:

Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.

JUDGMENT:

Affirmed.

Atty. Miles D. Fries, GOTTLIEB, JOHNSTON, BEAM & DAL PONTE, P.L.L., 320 Main

Street, P.O. Box 190, Zanesville, Ohio 43702-0190 for Plaintiffs-Appellants and

Atty. Kaitlin L. Madigan, Atty. Steven G. Carlino, WESTON HURD, LLP, 10 West Broad

Street, Ste. 2400, Columbus, OH 43215 for Defendants-Appellees.

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.

Dated: September 30, 2021

Robb, J.

{¶1} Plaintiffs-Appellants Kevin and Heather Saliba appeal the decision of the

Noble County Common Pleas Court granting summary judgment for Defendants-

Appellees Michael and Courtney Miley. Appellants raise two assignments of error in this

appeal. The first is whether the trial court erred when it determined Kevin Saliba was a

social guest, not an invitee when he went onto Appellee’s land for purposes of premises

liability. The second issue is whether there is a genuine issue of material fact as to

Appellee’s actual or constructive notice of the hazardous condition in the cistern. For the

reasons expressed below, the trial court’s decision is affirmed; Kevin was a social guest

and there was no evidence Appellees knew of the toxic condition of the cistern.

Statement of Facts

{¶2} Appellees own the property located at 51545 Shenandoah Road in Pleasant

City, Ohio in Noble County. Michael bought the house prior to their marriage and a house

was located on the property (old house). A cistern provided water to the old house. In

2016, they began building a new house and utilized the same cistern to provide water to

the new house. After the new house was complete, it is alleged the old house was torn

down and buried in the basement of the old house. This was next to the water cistern.

The same water cistern serviced the new house.

{¶3} In July 2017 Appellees noticed issues with the water to the house; it was

cloudy and had an odor described as smelling like pond water. Appellees drained the

cistern and cleaned it removing soot, sediment, and leaves. They were in the cistern for

five hours that time and they did not become sick. While in the cistern they did not smell

anything toxic. Two or three months later, Appellees once again noticed the water was

cloudy and had that pond odor. On October 4, 2017 they emptied the cistern. They did

not notice any odors coming from the cistern, but they did notice a small hole or crack on

the wall opposite where the old house was buried. Michael was in the cistern around 4:30

p.m. on October 4 after it was drained to inspect it; there was no incident when he was in

the cistern. It was then that he noticed the hole or crack.

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{¶4} Appellees then went to Courtney’s sister house at around 5:00 p.m. and did

not return until about 9:00 p.m. At that time Michael knew Kevin was going to stop by the

house. According to Appellees, Kevin was dropping off a pipe for Michael to weld.

According to Appellants, Kevin was stopping by to fix an electrical issue and to drop off a

pipe. Kevin was an electrician and Michael was a welder. They were friends and did

favors for each other and often spent time together socially.

{¶5} When Kevin arrived, Michael was already in the cistern. Courtney was

getting a broom for Michael and informed Kevin that Michael was in the cistern; she did

not see Kevin enter the cistern. When Courtney came back with the broom, she saw

Michael passed out in the cistern. She called 911. Both Michael and Kevin were rescued

from the cistern. While in the cistern, they were exposed to hydrogen sulfide and both

suffered extensive injuries.

{¶6} Michael suffered total organ shutdown within 48 hours and heart failure.

While he recovered, he lives with a left ventricular assist device and is currently on a heart

transplant list. Kevin suffered a toxic and anoxic brain injury. The toxic injury was from

the chemicals he was exposed to and the anoxic injury was due to the lack of oxygen.

He is disabled in several areas; he is not able to speak well, has hearing loss, balance

issues, vision loss, and spasticity of the arms.

{¶7} As a result of the injuries, Appellants filed suit against Appellees based on

premises liability. 9/26/19 Complaint. In the complaint, Appellants asserted Kevin went

over to the house to assist and thus, was an invitee. They also claimed Appellees were

aware of the hazardous fumes and failed to advise. 9/26/19 Complaint.

{¶8} Appellees answered the complaint and following discovery filed a motion

for summary judgment. 10/21/19 Answer; 2/27/20 Motion for Summary Judgment. In the

motion for summary judgment, they asserted Kevin was a social guest, they owed him a

duty to inform him of dangerous conditions of which they knew or had constructive

knowledge. 2/27/20 Summary Judgment Motion. They submitted the evidence indicated

they did not know of the condition. 2/27/20 Summary Judgment Motion. Attached to the

summary judgment motion were affidavits from Courtney Miley and Michael Miley. In

Courtney’s affidavit she averred there was no odor of chemicals when they were in the

cistern earlier in the day on October 4, 2017 and there was no odor of chemicals when

they were in the cistern in July 2017. Affidavit Courtney Miley. In his affidavit, Michael

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indicated he has no recollection of Kevin entering the cistern and he does not recall the

smell of gas in the cistern at any time on October 4, 2017. Affidavit Michael Miley. He

also indicated on October 4, 2017 he noticed a crack in the wall opposite where the

basement was buried and water was leaking in the cistern through that crack/hole.

Affidavit Michael Miley; Michael Miley Depo.

{¶9} Appellants filed a motion in opposition to summary judgment asserting

Kevin was an invitee, not a social guest and Appellees should have reasonably

anticipated the toxic fumes because despite warnings, they buried the old house in the

basement of the old house next to the cistern. 9/9/20 Motion in Opposition to Summary

Judgment. This created a landfill scenario and the toxic fumes from the decomposing

debris of the old house leached into the cistern. 9/9/20 Motion in Opposition to Summary

Judgment. Appellants also asserted Appellees had actual knowledge of the fumes.

9/9/20 Motion in Opposition to Summary Judgment. In support of their arguments, they

attached to the motion an affidavit from Heather’s father, Donald DeVolld, a self-employed

contractor. He asserted he advised Appellees to not bury the old house, but they did not

listen to him. He also indicated he was at the new house on several occasions prior to

October 2017 and he smelled the water and it smelled like raw sewage. Affidavit Donald

DeVolld. This was the problem he had warned Michael would incur from burying the old

house. Affidavit Donald DeVolld. He stated the smell Appellees described as pond water

was the odor of raw sewage. Affidavit Donald DeVolld.

{¶10} Appellees filed a reply in support of summary judgment and a motion to

strike DeVolld’s affidavit. 9/15/20 Motion. They asserted the deposition testimony

established Kevin was not an invitee, but rather a social guest and they did not have

knowledge of the hazardous condition. They also moved to have the DeVolld affidavit

struck because he was not qualified to offer expert opinion. 9/15/20 Motion.

{¶11} Appellants filed a motion contra to the motion to strike DeVolld’s affidavit

asserting he was offering his lay opinion. 10/8/20 Plaintiff Memo Contra to the Motion to

Strike. In response, Appellees filed a reply in support of the motion to strike. 10/14/20

Reply in Support of Motion to Strike.

{¶12} The trial court granted summary judgment for Appellees noting that it was a

tragic accident and no one was to blame. 2/22/21 J.E.; 3/1/21 J.E. The trial court did not

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rule on the motion to strike DeVolld’s affidavit, but the judgment granting summary

judgment did not refer to the affidavit. 3/1/21 J.E.

{¶13} Appellants timely appealed the trial court’s decision raising two

assignments of error. 3/23/21 Notice of Appeal.

Standard of Review

{¶14} We review a trial court's summary judgment decision de novo, applying the

same standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary

judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving

party is entitled to judgment as a matter of law, and (3) after construing the evidence most

favorably for the party against whom the motion is made, reasonable minds can reach

only a conclusion that is adverse to the nonmoving party. Civ.R. 56(C).

{¶15} On a motion for summary judgment, the moving party carries an initial

burden of identifying specific facts in the record that demonstrate entitlement to summary

judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the

moving party fails to meet this burden, summary judgment is not appropriate; if the moving

party meets this burden, the nonmoving party must then point to evidence of specific facts

in the record demonstrating the existence of a genuine issue of material fact for trial. Id.

at 293. If the nonmoving party fails to meet this burden, summary judgment is

appropriate. Id.

{¶16} With that standard in mind, we turn to the assignments of error. The

assignments of error will be addressed out of order because to determine what type of

notice is required under premises liability we must first determine the status of the injured

party. The second assignment of error addresses the issue of whether Kevin is an invitee

or a social guest.

Injured Party’s Status

Second Assignment of Error

“The trial court erred in finding that Kevin Saliba was a social guest.”

{¶17} Appellants’ negligence cause of action is based on premises liability. Ohio's

general premises liability law adheres to the common law classifications of invitee,

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licensee, and trespasser. Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio

St.3d 312, 315, 662 N.E.2d 287 (1996), citing Shump v. First Continental–Robinwood

Assoc., 71 Ohio St.3d 414, 417, 644 N.E.2d 291 (1994). The Ohio Supreme Court has

stated that “[i]t is axiomatic that, under the common law of premises liability, the status of

the person who enters upon the land of another (i.e., trespasser, licensee, or invitee)

defines the scope of the legal duty that the responsible party owes the entrant.” Shump,

71 Ohio St.3d at 417. The Ohio Supreme Court also has recognized social guests as a

distinct category. Rutkai v. Freeland, 9th Dist. Summit No. 24267, 2008-Ohio-6440, ¶ 20,

citing Scheibel v. Lipton, 156 Ohio St. 308, 328, 102 N.E.2d 453 (1951).

{¶18} The issue in this case is whether Kevin was an invitee or a social guest.

Appellants contend there is a genuine issue of material fact as to whether Kevin was a

social guest or invitee. Appellees assert the facts demonstrate Kevin was a social guest

and there is no genuine issue of material fact.

{¶19} “Invitees are persons who rightfully come upon the premises of another by

invitation, express or implied, for some purpose which is beneficial to the owner.” Gladon,

75 Ohio St.3d at 315; Scheibel, 156 Ohio St. at paragraph one of the syllabus. An invitee

is a person who enters the land of another by invitation, the invitee's entrance is

connected with the owner's business or with an activity the owner conducts or permits to

be conducted on his land, and there is a mutuality of benefit or benefit to the owner. Ard

v. Fawley, 135 Ohio App.3d 566, 571, 735 N.E.2d 14 (3d Dist.1999). The owner or

possessor of the land owes a duty of ordinary care to his invitees. Newton v.

Pennsylvania Iron & Coal Inc., 85 Ohio App.3d 353, 619 N.E.2d 1081 (2d Dist.1983).

{¶20} A social guest is a person who enters the land of another under an actual

invitation extended by the host. Williams v. Cook, 132 Ohio App.3d 444, 725 N.E.2d 339

(3d Dist.1999). On the basis of that invitation, a social guest is on the premises

presumably giving the possessor some personal benefit, which may be an intangible

benefit. Hall v. Watson, 7th Dist. Mahoning No. 01 CA 55, 2002-Ohio-3176, ¶ 27. The

duty owed to a social guest is 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

premise and to warn the guest of any condition of the premise 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

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know and will not discover such dangerous condition. Id. citing Scheibel, 156 Ohio St.

308.

{¶21} Here, the deposition testimony establishes Kevin and Michael were friends

and they often spent time at each other’s house socially. They also did jobs for each

other without pay, such as Michael welding items for Kevin and Kevin doing electrical

work for Michael. Kevin averred in his deposition that they were friends doing work for

friends. Kevin Saliba Depo. 15.

{¶22} In an Eleventh Appellate District case, the court determined that when one

friend was housesitting for another friend without pay, the house sitter was a social guest,

not an invitee. Sorensen v. DeFranco, 11th Dist. Lake No. 2013-L-038, 2013-Ohio-5829,

6 N.E.3d 664, ¶ 42-43. The house sitter was injured when the homeowner’s furnace

leaked carbon monoxide. Id. The appellate court agreed with the trial court that the

house sitter was a social guest because the facts established he was housesitting without

compensation for a longtime friend. Id. at ¶ 42. This is similar to the facts in this case.

Kevin and Michael were longtime friends who went to each other’s houses socially and

did jobs for each other without pay. While on October 4, 2017 Kevin may have been

stopping by to have Michael weld an item for him and to check on an electrical issue,

given the facts this was not for a business purpose rising to the level of an invitee. Rather,

Kevin was helping out a friend in a manner that was commonly done in the past.

{¶23} Accordingly, the trial court was correct in its determination that Kevin was a

social guest when he was injured. Thus, Appellees only duty to Kevin as a social guest

was to warn him of any dangerous condition of which they were aware. Id. at ¶ 43.

{¶24} This assignment of error lacks merit.

Actual or Constructive Knowledge of Hazardous Condition

First Assignment of Error

“The trial court erred in granting Appellee’s Motion for Summary Judgment.”

{¶25} Appellants argue the evidence indicates Appellees knew of the condition

and failed to warn Kevin. They contend the affidavit of Donald DeVolld and Courtney

Miley’s deposition testimony established Appellees knew of the danger. Courtney Miley’s

deposition testimony indicated Appellees knew the water had an odor. DeVolld’s affidavit

Case No. 21 NO 0481

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indicated he had smelled the water and it smelled like raw sewage. He indicated he had

warned Appellees that by burying the old house in the basement they could contaminate

the water supply in the cistern.

{¶26} Appellees counter, asserting statements in DeVolld’s affidavit should not be

considered on appeal. They contend the trial court did not consider or cite his affidavit in

rendering its decision. They also assert the deposition testimony from the parties

establish Appellants did not know of the toxic gases in the cistern.

{¶27} Starting with DeVolld’s affidavit, Appellees are correct that the judgment

entry did not reference it in rendering its decision and the trial court did not rule on the

request to strike. Appellees contend the trial court’s failure to reference DeVolld’s affidavit

means it was not considered and cites to case law indicating an appellate court in

reviewing summary judgment rulings will not rule upon issues raised in a summary

judgment motion that were not considered by the trial court. They cited our Hartline case.

Hartline v. Atkinson, 7th Dist. Monroe No. 20 MO 0004, 2020-Ohio-5605, ¶ 19. However,

that case is distinguishable. That case involved the MTA and the DMA. The trial court

granted summary judgment based on the DMA and specifically held the MTA claim was

moot in light of its ruling on the DMA. Thus, when on appeal, the losing party asked our

court to affirm summary judgment based on the MTA which we declined to consider

because it was specifically not considered by the trial court.

{¶28} That is different than the scenario here. Here, we are dealing with summary

judgment evidence and the trial court’s lack of a ruling on a motion to strike that evidence.

The trial court did not specifically indicate it was not considering the evidence and was

striking it, rather it just simply did not reference the evidence in rendering its decision. It

is noted the trial court granted summary judgment, but ordered Appellees to draft the

entry in accordance with its decision. 2/22/21 J.E. Regardless, generally, “‘if the trial

court fails to mention or rule on a pending motion, the appellate court presumes that the

motion was implicitly overruled.’” State v. Matthews, 2d Dist. Greene No. 2015-CA-73,

2016-Ohio-5055, ¶ 15, quoting State v. Davis, 9th Dist. Medina No. 07CA0028-M, 2008-

Ohio-999, ¶ 5. Consequently, without a ruling on the request to strike it is presumed it is

overruled.

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{¶29} This, however, does not mean the trial court’s failure to reference the

DeVolld affidavit or rely on it was incorrect. The DeVolld affidavit did not create a genuine

issue of material fact requiring the denial of the summary judgment.

{¶30} The DeVolld affidavit made two claims. First, that the condition of the

hazardous gas in the cistern was created by burying the old house in the basement of the

old house rather than hauling it away to a land fill. The second statement was DeVolld

stated prior to the incident on October 4, 2017 he smelled the water coming from

Appellees’ cistern and it smelled of raw sewage. He indicated this was the exact problem

he had warned Michael about and DeVolld “knew that the smell had to be coming from

the cistern because that’s where the water came from, so did they [Appellees] because

we [DeVolld and Appellees] discussed it many times.” DeVolld Affidavit.

{¶31} At the trial court level, Appellees argued the statement regarding what

caused the toxic gas could not be offered by DeVolld because he was not an expert in

this area. Rather, he was a general contractor. Appellees conclusion is correct. Pursuant

to Evid.R. 702 a witness may testify as an expert if the witness' testimony relates to

matters beyond the knowledge or experience possessed by lay persons, the witness is

qualified as an expert by specialized knowledge, skill, experience, training, or education

regarding the subject matter of the testimony, and the witness' testimony is based on

reliable scientific, technical, or other specialized information. The affidavit here does not

establish DeVolld is qualified as an expert. This is an area that would require specialized

knowledge to know what caused the toxic gases in the cistern. Therefore, his testimony

as to the cause was not admissible for purposes of establishing what caused the gases

and for Appellees’ alleged knowledge of the creation of factors that could possibly have

caused toxic gases in the cistern.

{¶32} Appellees’ affidavits established they had been in the cistern multiple times

before the incident, all of those times they were in the cistern for a length of time cleaning

it, and there was no smell of chemicals. Michael Miley Affidavit; Courtney Miley Affidavit.

In July 2017 they were in it for 5 hours cleaning it without incident. Michael Miley Affidavit;

Courtney Miley Affidavit. They specifically indicated they cleaned and entered the cistern

after they noticed the water was cloudy and smelled like pond water. Michael Miley

Affidavit; Courtney Miley Affidavit. In neither of their affidavits or deposition testimony did

they describe the smell of the water as raw sewage.

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{¶33} As referenced above, the duty owed to a social guest is, “(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.” Scheibel, 156 Ohio St. 308, paragraph three of the syllabus.

{¶34} Appellees contend this requires actual or constructive knowledge of the

dangerous condition. “Actual notice exists where, from competent evidence, the trier of

fact can conclude the pertinent information was personally communicated to, or received

by, the party.” Fraley v. Ohio Dept. of Rehab. & Correction, 10th Dist. Franklin No. 18AP-

731, 2019-Ohio-2804, 139 N.E.3d 1264, ¶ 23 (10th Dist.), quoting Kemer v. Ohio Dept.

of Transp., 10th Dist. Franklin No. 09AP-248, 2009-Ohio-5714, ¶ 21. It “may be (1)

express or direct information, or (2) implied or inferred from the fact that the person had

means of knowledge which he did not use.” Id. “Constructive notice of a defective

condition can be imputed to a defendant when the plaintiff presents evidence establishing

that the defect could or should have been discovered.” Fraley at ¶ 30, quoting Kemer at

¶ 24. “To support an inference of constructive notice, a plaintiff may submit evidence that

the condition existed for such a length of time that the owner or its agent's failure to warn

against it or remove it resulted from their failure to exercise ordinary care.” Id., quoting

Jenkins v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-787, 2013-Ohio-

5106, ¶ 12, citing Presley v. Norwood, 36 Ohio St.2d 29, 31-32, 303 N.E.2d 81 (1973).

{¶35} The record does not indicate Appellees had actual or constructive notice of

the condition of the toxic gases in the cistern. The record indicates Appellees and

Courtney’s father were in the cistern in July 2017, prior to the October 4, 2017 incident,

for multiple hours and did not get sick or smell gases. Michael was also in the cistern

earlier on October 4, 2017 to inspect it after it was drained. He did not get sick from being

in the cistern and did not smell gases. It was not until later in the evening on October 4

that gases in the cistern caused injury. There is no indication the condition of the cistern

was known or existed for a length of time. From the evidence submitted the smell of

gases in the cistern only occurred later on October 4. Michael Miley also avowed it was

on October 4, 2017 when he first noticed a crack in the wall where water was leaking into

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the cistern. Thus, the leak in the cistern was not known until the day of the incident. The

leak indicated the entry of water, but this was not evidence that toxic gases were present

earlier on October 4, when the leak was discovered. Moreover, a reasonable person

probably would not believe there was constructive knowledge of the condition because

the evidence clearly indicates Michael went into the cistern on October 4 twice without

protective gear. It seems illogical that the property owner would go into the cistern with

knowledge of its dangerous condition without protective gear. Consequently, there was

no awareness of toxic gases constituting constructive notice or actual notice.

{¶36} Furthermore, while there is testimony the water was cloudy and smelled of

pond water, there is no indication that the cloudiness and pond smell was caused by the

toxic gas. This type of evidence would require an expert or someone with knowledge of

what would cause gases in a cistern. As stated above, DeVolld would not qualify as an

expert unless there was more to indicate his expertise in this area.

{¶37} For those reasons this assignment of error lacks merit.

Conclusion

{¶38} The trial court correctly determined Kevin was a social guest. The evidence

did not establish a genuine issue of material fact as to whether Appellees had constructive

or actual knowledge of the toxic condition of the cistern. The grant of summary judgment

for Appellees is affirmed.

Donofrio, P J., concurs.

D’Apolito, J., concurs.

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For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Noble County, Ohio, is affirmed. Costs to be taxed against

the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.

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