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Bae v. Dragoo and Associates2/3/2004
.This is an appeal from the judgment of the Franklin County Court of Common Pleas granting summary judgment to defendants Dragoo and Associates, Inc., and Stratford Chase Townhouses ("Dragoo"). For the following reasons, we affirm.
. This case arises from the death of Nina L. Bae ("decedent"), who was six years old at the time she drowned in Dragoo's pool on August 12, 1999. A woman initially named as a defendant in this case, Yeong Mee Lee, was the adult responsible for supervising decedent and her two daughters on the day in question. Ms. Lee and her own two daughters were residents of Stratford Chase. Decedent was Ms. Lee's guest and accompanied them with the permission of decedent's parents. Decedent and Ms. Lee's two daughters were playing in the shallow end of the pool. At some point, decedent had been under water for an extended period of time and was in distress. Ms. Lee, not being a swimmer herself, eventually noticed decedent's distress and enlisted the help of two older girls who were present.
. On August 8, 2001, plaintiffs Bruce Bae, individually, and as the administrator of the estate of decedent, and Jennifer Bae commenced this wrongful death action against Dragoo and Ms. Lee. Ms. Lee was voluntarily dismissed. Appellants alleged that decedent was an invited guest at the pool and that Dragoo, among other things, was negligent in supervision, negligently maintained a nuisance, and/or negligently allowed a hazard and nuisance to exist, failed to post adequate warnings, and failed to follow necessary safety regulations for swimming pools. Dragoo filed a motion for summary judgment, and appellants filed a cross-motion for partial summary judgment on a claim for spoliation of evidence. The trial court granted Dragoo's motion for summary judgment and found plaintiffs' cross-motion moot.
. The trial court found that decedent was a guest of a resident of the apartment complex and was a business invitee. Therefore, Dragoo owed the decedent a duty of ordinary care to see that the premises were reasonably safe. The court also stated that a swimming pool is an open and obvious danger appreciated by both minors and adults. The court looked to the Ohio Administrative Code for guidelines and requirements for public swimming pools. The court found that Dragoo complied with these requirements. Although plaintiffs presented an expert witness who testified as to several ways to make the pool safer, there was no statute or case law that would impose those heightened requirements on Dragoo. Therefore, the court granted summary judgment in favor of Dragoo. Plaintiffs (hereinafter "appellants") filed the instant appeal.
. Appellants assert the following assignments of error:
"I. Did the lower court err in applying an inappropriate and inaccurate standard of care to the decedent minor, Nina Bae, since Nina Bae, on the date of the accident, was under the age of [seven]?
"II. Did the lower court error in granting summary judgment when there were material and substantial questions of fact?
"III. Did the lower court error in determining that [appellants'] motion for spoliation of evidence was `moot' when said motion should have been granted?
"IV. Were [appellants] reversibly prejudiced by [Dragoo's] `destruction' of material evidence when [Dragoo] were on notice that said evidence was not to be destroyed as early as November 1999, three months after the date of the accident?"
. Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162. "When reviewing a trial court's ruling on summary judgment, the court of appeals co
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