495 N.E.2d 585 | Ohio Ct. App. | 1985
On July 9, 1980, appellant John Florek was swimming in a pool owned by and located on the property of appellees Donald and Dorothy Norwood. Appellant was in the above-ground pool between five and fifteen minutes before diving in head first through an inner tube. As a result of the dive, appellant sustained a fracture of a vertebra.
On July 8, 1982 appellants filed this action against the appellees alleging that John Florek's injury was caused by appellee's negligence. On September 29, 1983, appellees filed a motion for summary judgment, and on August 13, 1984, the motion was granted. Appellants now assign the following errors for our review:
"I. Section
"II. The trial court erred in granting appellees' motion for summary judgment for the reason the plaintiffs-appellants presented sufficient evidence that there were genuine issues of fact and law that remained to be litigated."
R.C.
"(A) No owner, lessee, or occupant of premises:
"(1) Owes any duty to a recreational user to keep the premises safe for entry or use;
"(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;
"(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user."
In Anderson v. Ceccardi (1983),
"Additionally, our merger of the two doctrines is not intended to merge that type of assumption of risk defined as `primary assumption of risk,' which concerns cases where there is a lack of duty owed by the defendant to the plaintiff. * * *" (Footnote omitted.) Id. at 114.
Clearly, R.C.
Appellees do not deny that there were no depth markings on the pool. However, the Maple Heights Ordinance requiring depth markings on swimming pools specifically excludes portable pools, which is the type of pool owned by appellees. See Sections
Furthermore, on deposition, appellant John Florek testified that the presence of a depth marking would not have affected his decision to dive into the pool. Under these circumstances, the court's action in granting appellees' motion for summary judgment was proper. The second assignment of error lacks merit.
The judgment of the trial court is hereby affirmed.
Judgment affirmed.
PRYATEL and ANN MCMANAMON, JJ., concur.