Plank-Greer v. Tannerite Sports LLC et al

Filing 156

Order Defendant's motion for summary judgment (Doc. 143 ) be, and thesame hereby is denied. Judge James G. Carr on 4/21/15. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Jennifer Plank-Greer,

Case No. 3:13CV01266

Petitioner
v.

ORDER

Tannerite Sports, LLC, et al.
Respondent

This is a personal injury case in which plaintiff Jennifer Plank-Greer alleges defendant
James W. Yaney failed to use reasonable care when he detonated a refrigerator filled with
explosives that nearly severed plaintiff’s hand.
Defendant moves for summary judgment (Doc. 143) on the grounds that, as a licensor, he
owed plaintiff only the duty to refrain from wantonly or willfully causing injury, and, even if he
was a host, he did not breach his duty to exercise ordinary care. For the following reasons, I deny
defendant’s motion for summary judgment.
Background
When Jason Vantilburg discovered he was going to become a father, he decided to have a
“diaper party,” so that guests could bring diapers as gifts for the new baby. Vantilburg had a
gathering at the local church, and also asked his friend, the defendant, to host a party at his
country home. Vantilburg asked defendant to host the party so that, unlike at his suburban

1 

residence, the guests could have a day outside shooting guns. Defendant agreed, and Vantilburg
sent out invitations, naming the event the “diaper shootout.”
For the event’s grand finale, Vantilburg decided he wanted to blow up an old refrigerator
in front of his guests. Vantilburg had gotten the idea when, three weeks earlier, the defendant,
defendant’s brother-in-law, and Vantilburg blew up a dryer on defendant’s property.
To blow up the dryer, they used a one-pound canister of H2Target explosives (H2). The
H2 contained a warning label, attached to the side of the canister, that read, “misuse of this
product can result in serious bodily injury, destruction of property, and/or loss of life or limb.”
The label went on to state that the product was to be used “at a minimum distance of 50 yards.”
Before they detonated the H2, defendant and Vantilburg read the canister’s safety
instructions and ensured that everyone was fifty yards away. Defendant’s brother-in-law then
took his rifle and shot the H2 inside the dryer, causing it to explode.
Defendant and Vantilburg, having chosen what they wanted for the day’s events, went
about preparing for the party. Defendant transported the refrigerator from Vantilburg’s house to
his own, hauled an old box van to his backyard to be used as a shooting target, and supplied
various guns for the guests to use. Defendant also set up tables for guns and ammunition, and
ensured that the tables were at least fifty yards away from where the refrigerator would be
detonated.
To repurpose the refrigerator, defendant provided Vantilburg with the necessary tools.
Vantilburg cut a hole on one side so that he could shoot the H2 container and bolted the
refrigerator’s door shut. Vantilburg then placed three pounds of H2 inside of the refrigerator—
two more pounds than what had been used to blow up the dryer.

2 

During the party, defendant was present, directing guests, and providing safety
instructions to those shooting. Among the guests was plaintiff Jennifer Plank-Greer, whom
Vantilburg had personally invited, and her son. Before the party, plaintiff and defendant had
never met. When plaintiff and her son arrived, defendant greeted her, told her where to put the
food she had brought, and took her and her son to the backyard so that her son could shoot his air
rifle.
Towards the end of the party defendant and Vantilburg decided it was time for the finale,
and they pulled the refrigerator from defendant’s barn into the backyard. Vantilburg motioned
for the guests, including plaintiff, to move behind the tables that defendant had set out.
Vantilburg got into position behind his high-powered rifle.
The guests, having not been told what was about to occur, waited. Plaintiff held her arm
outstretched, filming the scene with her cellphone.
Vantilburg yelled “fire in the hole” and pulled the trigger. The H2 inside the refrigerator
immediately exploded. The explosion, given the quantity of H2 and the enclosed, unvented metal
space in which it occurred, blew shrapnel across the yard. A piece of metal sliced through
plaintiff’s hand, cutting the bone and leaving four of her fingers dangling by the remaining skin.
Plaintiff brought this timely suit for the injuries she suffered, (Doc. 1), and defendant
now moves for summary judgment.
Standard of Review
Rule 56 of the Federal Rules of Civil Procedure entitles a party to summary judgment
where the opposing party fails to show the existence of an essential element for which that party
bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant must
initially show the absence of a genuine issue of material fact. Id. at 323.

3 

Once the movant meets that initial burden, the burden shifts “to the nonmoving party [to]
set forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). Rule 56(e) “requires the nonmoving party to go beyond the
[unverified] pleadings” and submit admissible evidence supporting its position. Celotex, supra,
477 U.S. at 324.
In deciding a motion for summary judgment, I accept the non-movant’s evidence as true
and construe all evidence in its favor. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S.
451, 456 (1992).
Discussion
Defendant Yaney seeks summary judgment on two grounds. First, defendant contends
plaintiff was his licensee, not a social guest, so that he owed her only a duty to refrain from
wantonly or willfully injuring her. Second, defendant argues that, even if he plaintiff was a social
guest (and he her social host), he did not breach a host’s duty to exercise ordinary care or warn
her of any dangerous conditions on the premises.
A. Defendant’s Status as a Host
In Ohio, the status of the person who enters the land of another defines the scope of the
legal duty the landowner owes that person. Shump v. First Contintental-Robinwood Assoc., 71
Ohio St.3d 414, 417 (1994). Ohio recognizes four types of entrants: business invitee, social
guest, licensee, and trespasser. Scheibel v. Lipton, 156 Ohio St. 308 (1951).
The landowner owes business invitees the highest duty of care. A business invitee is
someone who is on the “premises of another, by invitation, express or implied, for some purpose
which is beneficial to the other.” Light v. Ohio Univ., 28 Ohio St.3d 66, 68 (1986) (citing
Scheibel, supra, 156 Ohio St. at 308).

4 

A licensee is someone who enters “premises of another by permission or acquiescence,
for his own pleasure or benefit, and not by invitation.” Id. at 68. Licensors are “not liable for
ordinary negligence and owe[] the licensee no duty except to refrain from wantonly and willfully
causing injury.” Id. (citing Hannon v. Ehrlich, 102 Ohio St. 176, syllabus ¶ 4 (1921)).
Hosts owe social guests a standard of care that falls between that owed to business
invitees, on the one hand, and licensees on the other. Social guests are those on the premises
“presumably giving the possessor some personal benefit,” such as social interaction. Ard v.
Fawley, 135 Ohio App.3d 566, 571 (1999); Howze v. Carter, 9th Dist. Summit No. 24688, 2009Ohio-5463 at *4 (citing Scheibel, supra, 156 Ohio St. at 329 & White v. Brinegar, 9th Dist. No.
16429, 1994 WL 232692, at *2 (1994)). Hosts, in turn, are the landowners or occupiers who
invite guests, either impliedly or expressly, onto the land. Ard, supra, 135 Ohio App.3d at 571;
Williams v. Cook, 132 Ohio App.3d 444, 449 (1999) (citing Starost v. Bradley, Montgomery
App. No. 17319, 1999 WL 41897).
The parties do not dispute that plaintiff was a “social guest” at the party; rather, they
disagree on whether defendant was a “host” or a “licensor.” Defendant claims that Vantilburg,
not he, was the host of the party. He argues Vantilburg was in charge of the party, selected which
guests to invite, sent out invitations, procured the guns and explosives, and was the one to benefit
from the diapers that guests brought.
Based on Vantilburg’s actions, he may very well qualify as a “host.” But it does not
follow that Vantilburg’s status as a host somehow precludes the defendant from also qualifying
as a host.
Defendant helped Vantilburg extensively in preparing for the party and ensuring that
guests were comfortable and entertained. Specifically, defendant: offered the use of his home

5 

and property so that guests could gather; hauled the refrigerator onto his property, knowing that
it was going to be detonated for the party; dragged an old box van into his backyard to serve as a
shooting target; provided his own truck and trailer as a staging area for ammunitions; and set out
tables for guests to use while shooting. At the party, defendant benefitted personally from
socializing throughout the day with all the guests and his family members who were in
attendance.
Defendant also created a welcoming atmosphere for plaintiff: he had family members
directing her and the others who came to the diaper shootout where to park; greeted plaintiff and
her son; told plaintiff where to put the food she brought; and took plaintiff and her son into the
backyard so that her son could use his airsoft rifle. At no point did defendant indicate that
plaintiff was unwelcome on the premises.
I find the facts create, at the very least, a genuine dispute as to whether defendant
impliedly invited plaintiff onto his property for the party, and, therefore, was a host with the
ensuing duty to exercise ordinary care.
B. Defendant’s Duty of Care
A host who invites a social guest onto his premises owes the guest two duties, namely,
to: 1) exercise ordinary care not to cause injury to his guest, either by any act or activities he
carries on while the guest is present, and 2) warn the guest of any condition of the premises of
which he is aware and which a person of ordinary prudence and foresight in his position 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, supra, 156 Ohio St. at 329. Defendant
argues he did not breach his duties to plaintiff under either standard.
1. Duty to Exercise Ordinary Care

6 

Defendant claims he did not breach his duty to exercise ordinary care because he did not
“carry on” the activity — blowing up the refrigerator — that injured the plaintiff. He attempts to
minimize his role he and put all the blame onto Vantilburg.
Several facts, however, show defendant’s involvement, including that he: hauled the
refrigerator to his house; read the H2 safety instructions; supplied Vantilburg with the tools to
repurpose the refrigerator; helped Vantilburg move the repurposed refrigerator from the barn into
his backyard; and measured and set up tables fifty yards from Vantilburg’s target. Defendant’s
conduct demonstrates that he, though to a lesser extent than Vantilburg, directly engaged in
activities leading to and causing the explosion.
There is a genuine dispute of material fact, moreover, as to whether defendant exercised
ordinary care vis-a-vis the danger from blowing up a sealed metal target containing three times
the explosives Vantilburg had earlier used to blow up a small, vented target.1 In detonating the
refrigerator, defendant understood the dangerous nature of the explosives: he had read the H2
label warning of serious bodily injury and possible loss of life and limb. Defendant also
understood, per the instructions on the one-pound H2 canister, that one pound of H2 required
people to stand at least fifty yards away.
A rational jury could conclude that a host who allows people to come onto his property
for a crowded party, attends and supervises the party, and participates to some extent in
arranging for an enclosed metal object to blow up in its midst, has a duty to understand all the
risks involved and take adequate precautions to avoid injuring his guests.
C. Duty to Warn of Dangerous Conditions

1

  The parties disagree as to whether defendant knew that Vantilburg intended to place three

pounds of the H2 into the refrigerator. Regardless, even assuming that defendant did not know
the amount that Vantilburg intended to use, defendant still failed to identify just how much H2
was being used, and, in turn, the appropriate clearance distance. 
7 

Defendant claims he did not breach his duty to warn plaintiff of dangerous conditions on
the premises because the term “conditions” is limited to defects in the real property or its
fixtures, not movable objects like large, sealed metal containers enclosing H2 explosives. In
support, he points to Scheibel, the Ohio Supreme Court’s seminal case on defining the contours
of duties owed social guests, which, in crafting the new standard, cites primarily to cases where
the “condition” of the premises causing an injury was either part of the real property or a fixture.
Scheibel, supra, 156 Ohio St. at 318-323 (citing Long v. Joestlein, 193 Md. 211, 66 A.2d 407,
409 (1949) (plaintiff fell down stairs); Mitchell v. Legarsky, 95 N.H. 214, 60 A.2d 136, 137
(1948) (plaintiff tripped on a torn piece of linoleum and fell down stairs); Page v. Murphy, 194
Minn. 607, 261 N.W. 443, 445 (1935) (plaintiff slipped on a wet tile and fell down stairs); Morril
v. Morril, 140 N.J.L. 557, 142 A. 337, 340 (1928) (plaintiff struck by garage door); Greenfield v.
Miller, 173 Wis. 184, 180 N.W. 834, 836 (1921) (plaintiff tripped over a rug).
However, nothing in the cited cases or in the holding in Scheibel limits the term
“condition” to such a narrow interpretation. In fact, in DiGildo v. Caponi, 18 Ohio St.2d 125,
129 (1969), the Ohio Supreme Court found that a parked car on the host’s inclined driveway
could be “a dangerous condition[]giving rise to a duty to warn the plaintiff.” Furthermore, in
Penix v. Boyles, 2003-Ohio-2856, WL 21279428, *4 (Ohio App.), the court held that a bottle full
of gasoline, thrown into a fire pit, was a “condition of the premises.” In Penix, the court
specifically stated that Scheibel did not limit “conditions of the premises” to real property or
fixtures, and that it had found no other legal authority to support such a proposition. Id.
Defendant attempts to cabin DiGildo and Penix by arguing that the true conditions that
caused the dangers in those cases — the car on the incline and the fire pit — were static.
Defendant’s interpretation goes against the plain reading of the cases. In both cases, the courts

8 

focused on the movement of objects — the parked car and thrown bottle — as the dangerous
conditions. While neither the incline nor fire pit was dangerous, inattention to the dangers that
certain actions — parking and throwing the gas-filled bottle — made the conditions of the
premises, under those circumstances, dangerous, and foreseeably so. Accordingly, like the
objects in DiGildo and Penix, the explosive-filled refrigerator also qualifies as a “condition of
the premises.”
Here, a genuine dispute of material fact exists as to whether defendant had a duty to warn
plaintiff of the dangerous nature of the refrigerator. Defendant knew the refrigerator contained
explosives, had its door bolted shut, and that Vantilburg was going to blow it up. A rational jury
could find that any reasonable person would consider that combination of circumstances to be
dangerous. And, while the plaintiff may have known that something was about to happen — she
was standing in the backyard filming the scene — the facts do not suggest she had actual
knowledge, or that she would discover, the refrigerator was going to be blown up and send
shrapnel flying at her.
I therefore deny defendant’s motion for summary judgment.
Conclusion
It is therefore
ORDERED THAT: defendant’s motion for summary judgment (Doc. 143) be, and the
same hereby is denied.
The Clerk shall forthwith set a status/scheduling conference.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

9