Uddin v. Embassy Suites Hotel

{¶ 56} 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.

{¶ 57} The trial court concluded that 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, 788 N.E.2d 1088, at ¶ 5.

{¶ 58} While this court has held that "a swimming pool presents an open and obvious condition that should be appreciated by both minors and adults," the open-and-obvious doctrine does not relieve an occupier's duty to maintain its premises in a reasonably safe condition when the pool becomes unreasonably dangerous by a hidden defect or dangerous condition that poses a risk of death or serious bodily harm. Mullens v. Binsky (1998),130 Ohio App. 3d 64, 71, 719 N.E.2d 599. As the Supreme Court has explained, "Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter * * *. The same discernment and foresight in discovering defects and dangers cannot be reasonably expected of them, that older and experienced persons habitually employ." Di Gildo v. Caponi (1969), 18 Ohio St. 2d 125, 127, 47 O.O.2d 282, 247 N.E.2d 732.

{¶ 59} When I apply the open-and-obvious doctrine in conjunction with the special status Ohio courts bestow upon minors, I conclude that even if a swimming pool may not generally present a hidden danger involving an unreasonably dangerous condition, a minor may not be able to foresee or appreciate the dangers posed by failure to comply with pertinent administrative regulations. An adult may instantly recognize that cloudy water increases his or her risk of drowning because the diminished clarity impairs the vision of those supervising, thereby hindering potential rescue efforts. To a ten-year-old child, however, the danger may not be as readily apparent. Because, as the lead opinion notes, a genuine issue of material fact arises concerning application of the open-and-obvious doctrine as it relates to the condition of the pool at the time of decedent's drowning, and because the dangers associated with the condition are not necessarily apparent to a ten-year-old child, I concur with the lead opinion's conclusion that a genuine issue of material fact precludes summary judgment to defendants concerning defendants' duty and breach of duty toward decedent.