2024 Ohio 1726
Ohio Ct. App.2024Background
- Jessica Baldwin filed suit on behalf of her minor son, Connor Adkins, after Connor nearly drowned at a swimming pool during a daycare-supervised field trip in 2018; Connor suffered significant medical distress after being underwater.
- Connor, a six-year-old designated "non-swimmer" by his father, attended daycare at Noah's Ark (run by Freedom House Church of God); the daycare took children, some with limited swimming abilities, on a supervised outing to Walnut Grove Swim Club.
- During the swim, each child wore a wristband indicating swimming ability, but Noah's Ark failed to explain this system to the pool's lifeguards; Connor was in the shallow end when he experienced distress during the scheduled break to exit the pool.
- Lifeguards rescued Connor after his head went underwater and he became unresponsive; he was resuscitated after significant medical intervention.
- Baldwin sued Noah's Ark and the swim club alleging reckless supervision and loss of consortium, seeking to avoid the bar of primary assumption of risk; she later settled with the swim club, leaving Noah's Ark as the primary defendant on appeal.
- The trial court granted summary judgment to Noah's Ark based on primary assumption of risk, finding no reckless or intentional conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Primary Assumption of Risk: Does it apply? | Special/attendant circumstances made the risk unassumed; doctrine inapplicable. | Ordinary risk of swimming (including drowning) assumed; doctrine bars claim. | Doctrine applies; drowning is an inherent risk of swimming. |
| Recklessness: Was supervision reckless? | Noah's Ark failed in supervision by leaving non-swimmer unmonitored, withdrawing staff after whistle, and not informing lifeguards about wristbands. | Supervision met/ exceeded requirements; at most, any failures were negligent, not reckless or intentional. | No evidence of recklessness; at most, ordinary negligence shown. |
| Exclusion of Expert Testimony | Expert aquatics consultant's opinion should be admitted as it supports claim of reckless supervision. | Expert lacked qualifications for medical opinions and did not show reckless conduct. | No prejudice from exclusion; opinion wouldn't alter result. |
| Exclusion of Director's Journal Entries | Entries support inference of inattentive supervision and should be considered. | Entries do not show reckless behavior; also argued untimely. | Even if timely, entries don't show recklessness. |
Key Cases Cited
- Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427 (Ohio 1996) (primary assumption of risk bars recovery unless conduct is intentional or reckless; special or attendant circumstances can form exception)
- Marchetti v. Kalish, 53 Ohio St.3d 95 (Ohio 1990) (participants in recreational activities assume ordinary risks; liability only for reckless or intentional conduct)
- Anderson v. City of Massillon, 134 Ohio St.3d 380 (Ohio 2012) (recklessness is conscious disregard of a known risk—standard is higher than negligence)
- Gentry v. Craycraft, 101 Ohio St.3d 141 (Ohio 2004) (age of participant immaterial; primary assumption of risk applies to recreational injuries regardless of participant's ability to appreciate risk)
- Salyer v. Brookview Village Condominium Assn., 2018-Ohio-2255 (Ohio App.) (drowning is an inherent risk of swimming)