Baldwin v. The Church of God of Trenton

• Court: Ohio Court of Appeals
• Writing for the Court: BYRNE, J.
• Citation: Baldwin v. The Church of God of Trenton, 2024 Ohio 1726, CA2023-01-004 (Ohio App. May 06, 2024)
• Docket Number: CA2023-01-004
• Decision Date: 06 May 2024
• Parties: JESSICA BALDWIN, et al., Appellants, v. THE CHURCH OF GOD OF TRENTON, OHIO, et al., Appellees.

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2024-Ohio-1726

JESSICA BALDWIN, et al., Appellants, v. THE CHURCH OF GOD OF TRENTON, OHIO, et al., Appellees.

No. CA2023-01-004

Court of Appeals of Ohio, Twelfth District, Butler

May 6, 2024

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV 202110 1612

Graydon Head & Ritchey LLP, Roula Allouch and Kellie Ann Kulka, for appellants.

Lock Gordon Law Group, LLC, James H. Gordon and Jeremy R. Kopp for appellees, The Church of God of Trenton, Ohio dba Noah's Ark Child Development Center and The Church of God of Trenton, Ohio dba Freedom House Church of God

Droder & Miller Co., L.P.A., Richard J. Rinear and Matthew C Smallwood, for appellee, Walnut Grove Swim Club, Inc.

OPINION

BYRNE J.

{¶ 1} Plaintiff-appellant, Jessica Baldwin, individually and on behalf of her minor son Connor Adkins, appeals the judgment of the Butler County Court of Common Pleas granting summary judgment on her claims of reckless supervision and loss of consortium to defendants-appellees, The Church of God of Trenton, Ohio, d.b.a. Freedom House Church of God and Noah's Ark Child Development Center (collectively "Noah's Ark") and Walnut Grove Swim Club, Inc. For the reasons that follow, we affirm.

I. Facts and Procedural History

{¶ 2} Connor's parents had been divorced before the events in this case occurred, and they shared legal custody of Connor. In 2018, Connor spent most of the year living with his father, Erick Adkins, in Ohio, and around six weeks in the summer living with his mother, Jessica Baldwin, who then lived in Georgia.

{¶ 3} At the beginning of the summer that year, Connor was six years old, and Adkins enrolled him in a daycare run by Freedom House Church of God called Noah's Ark Child Development Center. Stacy Dodge, the daycare's director, had several swimming activities planned for the children that summer, including regular visits to Walnut Grove Swim Club. Noah's Ark sent a "Swimming Permission Slip" home with Connor asking for a parent's permission for Connor to participate and asking the parent to designate Connor as a "swimmer" or a "non-swimmer." The permission slip stated that "children who are non-swimmers will wear an orange wrist band" and that "children who are swimmers will wear a green wrist band." The permission slip also stated, "At these activities we will provide additional child care staff above licensing ratio requirements."^[1] Connor's father signed the permission slip and designated Connor a "non-swimmer."

{¶ 4} On June 4, 2018, after lunch, Dodge and 12 adult staff members of Noah's Ark took Connor and 55 other children to Walnut Grove Swim Club to swim in its pool. Walnut Grove had two teenaged lifeguards on duty that day-Sam Schenck, who was watching the deep end of the pool, and Callie Hunt, who was watching the shallow end. It was Hunt's first day working as a lifeguard, and it was Noah's Ark's first planned visit to Walnut Grove that summer. Typically, there would have been only one lifeguard, but Noah's Ark had requested that there be two that day due to the number of children who would be in the pool. The pool had a shallow end with a depth that started at three feet and gradually deepened to five feet, before dropping off to the deep end. The shallow-end lifeguard's chair was positioned at the five-foot depth, directly across from one of the pool's entry-and-exit ladders. "Non-swimmers" were not permitted beyond this lifeguard's chair. Each Noah's Ark child wore a colored wristband; 31 children wore a green "swimmer" wristband and 26 children, including Connor, wore an orange "non-swimmer" wristband. The lifeguards knew that the wristbands identified the swimming status of the Noah's Ark children, but they did not know which color was associated with which status. Noah's Ark had not told the swim club what the colors meant.

{¶ 5} In addition to the lifeguards, Noah's Ark staff members kept an eye on the swimming children. Two staff members were in the pool with the children, while the others sat around the perimeter of the pool watching the children. Noah's Ark had instructed those sitting around the pool to spread out so that there was about six feet of space between each staff member. And Noah's Ark was granted permission from Walnut Grove for its staff members to sit in chairs around the pool edge-giving them a vantage point from which to watch the swimmers that was both higher and closer than normally permitted. While Noah's Ark did not require a particular number of staff members to watch a particular section of the pool, more staff members were watching the shallow end. Typically, during field trips, Noah's Ark staff members would regularly count the children to ensure that they had them all. That was all but impossible when the children were in the pool, as they were constantly moving and mixing with other swimmers. So Noah's Ark had assigned staff members to a group of children for which they were responsible. Each group had two staff members and generally no more than seven children. Each group leader was responsible for making sure that all the children in their group were accounted for and helping them with things like applying sunscreen and getting snacks.

{¶ 6} The Noah's Ark group arrived at the pool sometime after 1:00 p.m. Other children were already swimming, and after Noah's Ark arrived, there were between 50 and 70 children in the pool at any given time.

{¶ 7} The swim club scheduled a 15-minute break each hour, during which time everyone was required to be out of the pool. At a quarter before the hour, the lifeguards would blow their whistles to signal the break. Knowing this, Noah's Ark had instructed the children that when they heard the lifeguards blow their whistles, they should immediately exit the pool.

{¶ 8} At 1:45 p.m., lifeguards Schenck and Hunt blew their whistles for the hour's break. When Connor heard the whistle, he was hanging on the wall of the pool in the shallow end, across from Hunt, talking to other children. Connor described (at his deposition) what happened next:

So, I was hanging on the wall and then I like pushed off and then started sucking in water on accident. * * *

I sucked in too much water and then I started and I was saying help, but I don't think anyone could hear me because I was probably talking low because there was a bunch of water in my mouth. And then I remember going over to the stairs and l was really close and then it blacked out. * * *

So when I pushed off, I saw some older kids and then I asked them for help but they didn't hear me, so then I was swimming over to the stairs. * * *

Connor said that he was "just pushing off" when he went under the water. He did not recall being all the way under the water. He said that there was "one kid who was swimming that was splashing in my face and I don't think they knew it * * * it didn't really cause me to go under water, but it was a reason.'' Connor did not make it to the ladder.

{¶ 9} Hunt, the new lifeguard, testified at her deposition that she was getting down from her chair and noticed, directly across from her, that Connor and three other children were moving toward the ladder. She testified that she was not sure if Connor needed help or if he was just taking a while to get out of the pool. (It was a common occurrence, Hunt said, for some children to delay getting out of the pool and even to pretend like they did not hear the whistle.) She explained that Connor was "moving his arms and his legs, and he was above the water" and appeared to be swimming. While she watched Connor, Hunt grew concerned because he appeared to be having trouble reaching the ladder. She testified:

[Connor] was still above water when he was reaching for the ladder, trying to get it. So he looked like he was still swimming. [But] [a]fter he tried to reach it a few times, his head went under. * * * There's a ledge at the bottom of the pool, like next to the ladder, so he was standing on that, I would assume, and he slipped and went under. And then me and [Schenck] looked at each other, and then [Schenck] got in. Because he just went under really quick. * * * [H]e just went straight down really quick. And that's the only way I would describe about how that would happen. * * * Like, he went down, and then his face was in the water. So his head was above the water, and then it wasn't anymore.

{¶ 10} Schenck, the other lifeguard, testified at his deposition that after blowing his whistle he had waited for the deep end to clear before walking around to Hunt's chair beside the shallow end. When Hunt pointed out Connor under the water, Schenck could see that Connor was not moving and was "facing down," so he immediately dove into the pool. Schenk lifted Connor out of the pool and yelled for Hunt to call 911.

{¶ 11} By that time Connor's heart had stopped and would not start beating again for 14 minutes. A Walnut Grove pool manager, who was also a certified nurse, immediately began administering CPR. Connor was ultimately airlifted to Cincinnati Children's Hospital. The medical team had difficulty stabilizing him and advised his parents at one point that it was "not looking good." Connor was placed on advanced life support where he remained for three days. He was in a coma for another two days before he awakened. After that, Connor had seven or eight "ministrokes" in his brain. It was not until almost a week after that day at the pool that doctors became confident that Connor would survive.

{¶ 12} On July 29, 2019, Jessica Baldwin, Connor's mother, filed suit against Noah's Ark and Walnut Grove Swim Club, asserting claims of negligence and loss of consortium. She later voluntarily dismissed the case. On October 28, 2021, Baldwin re-filed the lawsuit, this time asserting a claim of...