2018 Ohio 2255
Ohio Ct. App.2018Background
- Two-year-old Traetin Reyes drowned in a hot tub at Brookview Village Condominium pool during a family pool party where the pool area had been reserved by a resident.
- The hot tub was on a raised platform adjacent to the pool, accessible from the pool deck (no separate gate or enclosure); it contained water but was closed due to a broken heater and posted as "closed."
- Traetin wandered from the restroom to the pool area unattended and was found drowned about twenty minutes later.
- Appellant (administrator of the estate) sued Brookview for wrongful death and survivorship, alleging the hot tub was an attractive nuisance and that the condominium negligently maintained it.
- Brookview moved for summary judgment invoking the recreational-activity doctrine and arguing the hot tub was an open-and-obvious danger; trial court granted summary judgment for Brookview, finding Traetin a licensee (social guest), not a trespasser, and no evidence of appellee’s reckless or intentional conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a 2‑year‑old is required to appreciate the open-and-obvious risk of drowning in a hot tub | Salyer: Traetin was too young to appreciate the risk; recreational-activity doctrine should not bar recovery | Brookview: Recreational-activity doctrine applies; plaintiff need not show child appreciated risk—focus is on defendant’s conduct | Court: Recreational‑activity doctrine applies; child's appreciation not required—claim barred absent reckless or intentional defendant conduct |
| Whether Traetin exceeded his license by entering the closed hot tub (i.e., became a trespasser) | Salyer: Entering the closed hot tub exceeded the invitation and made Traetin a trespasser for attractive‑nuisance purposes | Brookview: Pool guests were licensees; hot tub was in same open area and access was not separately restricted | Court: Traetin remained a licensee; hot tub access was open and obvious; not a trespasser |
| Whether attractive‑nuisance doctrine applies | Salyer: Hot tub was an attractive nuisance that lured Traetin and created liability | Brookview: Attractive‑nuisance inapplicable because entrant was not a trespasser and danger was open and obvious | Court: Attractive‑nuisance inapplicable because child was a licensee and hazard was open and obvious |
| Whether appellee engaged in reckless or intentional conduct causing death | Salyer: Appellant implied appellee’s maintenance/lack of safeguards was proximate cause | Brookview: No evidence of reckless or intentional acts by appellee; ordinary risks assumed under recreational doctrine | Court: No evidence of reckless or intentional conduct; summary judgment for Brookview affirmed |
Key Cases Cited
- Marchetti v. Kalish, 53 Ohio St.3d 95 (1989) (when participants engage in recreational activities they assume ordinary risks; recovery only for reckless or intentional conduct)
- Gentry v. Craycraft, 101 Ohio St.3d 141 (2004) (focus in recreational‑activity cases is on defendant’s conduct, not the child plaintiff’s subjective understanding)
- Mullens v. Binsky, 130 Ohio App.3d 64 (1998) (drowning is an inherent risk of swimming)
- Gladon v. Greater Cleveland Reg’l Transit Auth., 75 Ohio St.3d 312 (1996) (entrant’s status—invitee, licensee, trespasser—determines landowner’s duty)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (summary judgment burden-shifting standard)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (1987) (appellate review of summary judgment uses same standard as trial court)