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Uddin v. Embassy Suites Hotel12/13/2005
five feet. Reynolds was the sole designated adult supervisor of the approximately 18 children in the birthday party and was in the pool when the accident occurred. Barbara Lemming attested that she noticed the pool water was a creamy-white color and that she could not see her feet while standing in the pool. She also stated that her husband, Tony Lemming, entered the pool in an attempt to save the decedent. Barbara Lemming attested that she could not see the decedent's body at the bottom of the pool, and that the decedent's body was only visible once it was at the water's surface.
{ } Likewise, Detective Farbacher and Tim O'Donnell attested that the pool was murky and cloudy. Detective Farbacher specifically stated that the bottom of the pool was not visible. Thus, there was considerable testimony that the dangerous condition of the pool was apparent to a number of people who were present at the time the tragedy occurred. There is no testimony that the hotel was aware of the condition. Further, there was testimony that the hotel had, on previous occasions of testing and inspection, passed such tests and inspections.
{ } The foregoing demonstrates that the dangerous condition of the pool would have been obvious to the swimmers, the parents, and the designated adult supervisor, Reynolds, who would have been in loco parentis. See, e.g., Evans v. Ohio State Univ. (1996), 112 Ohio App.3d 724, 737. Due to the open-and-obvious nature of the dangerous condition, the trial court properly determined that plaintiff could not establish the duty element. In other words, despite the apparent administrative violation, the undisputed surrounding circumstances of this tragic accident establish an open-and-obvious danger which precludes plaintiff's negligence action. Hence, I would affirm the trial court's judgment denying plaintiff's negligence claim.
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