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Uddin v. Embassy Suites Hotel12/13/2005
their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Id. at paragraph one of the syllabus, adopting Restatement of the Law 2d, Torts (1965), Section 339.
{ } Here, however, decedent at the time of the drowning was an invitee, not a child trespasser; therefore the attractive nuisance doctrine is inapplicable. See Bae v. Dragoo and Assoc., 156 Ohio App.3d 103, 2004-Ohio-544, at , fn. 3 (wherein this court observed "that the attractive nuisance doctrine technically does not apply, because decedent was not a child trespasser").
{ } Consequently, because the attractive nuisance doctrine is inapplicable, we hold that the trial court correctly determined that plaintiff could not prevail on his second cause of action that was premised upon the attractive nuisance doctrine.
{ } Therefore, to the extent that plaintiff contends that the trial court erred by granting partial summary judgment in favor of defendants concerning plaintiff's claim of liability based upon the attractive nuisance doctrine, we find such a contention is not well-taken.
{ } However, having found that the open-and-obvious doctrine does not preclude recovery and that there is a genuine issue of material fact as to whether defendants breached a duty of care to decedent and whether that breach proximately caused decedent's death, we find plaintiff's contention that the trial court erred when it granted summary judgment in favor of defendants is well-taken. Therefore, we sustain plaintiff's sole assignment of error.
{ } Accordingly, plaintiff's sole assignment of error is sustained, the judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, and this cause is remanded to that court for further proceedings in accordance with law and consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
BRYANT, J., concurs separately.
CHRISTLEY, J., concurs in part and dissents in part.
CHRISTLEY, J., retired of the Eleventh Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.
BRYANT, J., concurring separately.
{ } Although I agree with the lead opinion's conclusion that the trial court erred in granting summary judgment in favor of defendants, the definitive issue is whether the condition of the pool is an open-and-obvious danger that obviates the landowner's duty to warn. More specifically, the question is whether a ten-year-old child can appreciate the additional dangers associated with cloudy pool water so as to preclude the application of the open-and-obvious doctrine.
{ } The trial court concluded defendants were relieved of a duty toward decedent because the indoor swimming pool constituted an open-and-obvious danger. The rationale underlying the open-and-obvious doctrine is that the open and obvious nature of the hazard serves as a warning, and thus a landowner may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, at .
{ } While this court has held that "a swimming pool is an open-and-obvious conditio
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