Fryberger v. Lake Cable Recreation Ass'n, Inc., 88-96

• Decision Date: 30 December 1988
• Docket Number: No. 88-96,88-96
• Parties: FRYBERGER et al., Appellees, v. LAKE CABLE RECREATION ASSOCIATION, INC. et al., Appellants.
• Court: Ohio Supreme Court

Page 349

40 Ohio St.3d 349

533 N.E.2d 738

FRYBERGER et al., Appellees, v. LAKE CABLE RECREATION ASSOCIATION, INC. et al., Appellants.

No. 88-96.

Supreme Court of Ohio.

Submitted Oct. 26, 1988.

Decided Dec. 30, 1988. ^*

Syllabus by the Court

1. In order to obtain the immunity of R.C. 1533.181, the property upon which an injury occurs must be held open for public use. (Loyer v. Buchholz [1988], 38 Ohio St.3d 65, 526 N.E.2d 300, followed. Accord Sorrell v. Ohio Dept. of Natural Resources [1988], 40 Ohio St.3d 141, 532 N.E.2d 722.)

2. The applicability of R.C. 1533.181 does not depend upon the common-law status of the injured party as trespasser, licensee, social guest, or invitee.

On July 21, 1983, Russell J. Fryberger went to attorney Tom A. Borcoman's residence to discuss a pending legal matter. Fryberger was a client of Borcoman. After the legal consultation ended, Fryberger received permission from Borcoman to swim in the lake adjoining Borcoman's residence. A dock on Borcoman's property extended out, over the water. Fryberger dove into the lake from the dock, sustaining severe injuries when he struck his head on the lake's bottom.

The lake is owned by Lake Cable Recreation Association, Inc. ("association") and by Claire LaCoss and Patricia Mary Englehaupt ("LaCoss-Englehaupt"). The ownership interest of the association appears to be an undivided two thirds and that of LaCoss-Englehaupt an undivided one third.

Fryberger and his wife, plaintiffs-appellees, brought suit against Borcoman, the association, and LaCoss-Englehaupt. Plaintiffs claimed Borcoman was negligent in failing to warn Fryberger of the danger in diving from the dock. The negligence allegations against the association and LaCoss-Englehaupt included: (1) failure to post warning signs and depth markers near the dock (or require lakefront property owners to do so), (2) failure to properly control the growth of weeds and other aquatic vegetation so that the water would have been clear, (3) failure to maintain a sufficient water depth in the lake, and (4) failure to publish and enforce appropriate regulations for the design and construction of docks.

All defendants moved for summary judgment, claiming immunity from liability pursuant to R.C. 1533.18 and 1533.181, the recreational user statute. In addition, the association and LaCoss-Englehaupt asserted that they owed no duty to Fryberger because they had no control over the premises where the injury occurred.

The trial court granted summary judgment in favor of all defendants. The court of appeals reversed.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Okey Law Firm, L.P.A., Eugene P. Okey, Steven P. Okey and Joseph W. Calabretta, Canton, for appellees.

Brown, Bartunek & Worthing and Donald E. Worthing, Cleveland, for appellant Lake Cable Recreation Assn., Inc.

Vogelgesang, Howes, Lindamood & Brunn, Philip E. Howes and Donald P. Wiley, Canton, for appellant Tom Borcoman.

Victor J. Helling, Canton, for appellants Claire LaCoss and Patricia Mary Englehaupt.

HERBERT R. BROWN, Justice.

A motion for summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment should not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts are viewed in the light most favorable to the opposing party. Civ.R. 56(C); Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 188, 26 OBR 160, 161, 497 N.E.2d 1118, 1120, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267.

I

The issue of whether R.C. 1533.181 ¹ provides immunity to the defendants is controlled by our recent decision in Loyer v. Buchholz (1988), 38 Ohio St.3d 65, 526 N.E.2d 300.

In Loyer we held that the immunity provided by R.C. 1533.181 does not extend to the owner of a residential swimming pool whose social guest is injured while swimming, where the pool was not held open for recreational use by the general public without the payment of a fee or consideration. Id. at syllabus. Our holding was grounded upon the legislative purpose which lies behind the recreational user statute, which is to encourage owners of premises suitable for recreational pursuits to open their lands for public use. Id. at 66, 526 N.E.2d at 302. In order to obtain the immunity of R.C. 1533.181, the property upon which an injury occurs must be held open for public use. Loyer, supra. Accord Sorrell v. Ohio Dept. of Natural Resources (1988), 40 Ohio St.3d 141, 532 N.E.2d 722.

The property in question here was not held open to the general public for recreational use. However, Borcoman contends that Loyer is distinguishable in that the injured party in Loyer was a social guest of the landholder whereas Fryberger is a licensee of Borcoman. We disagree.

Assuming arguendo that Fryberger is a licensee, ² the applicability of R.C. 1533.181 does not depend upon the common-law status of the injured party as trespasser, licensee, social guest, or invitee. Cf. Sorrell, supra. As this court has previously stated, R.C. 1533.181 abrogates the common law. Loyer, supra, 38 Ohio St.3d at 68, 526 N.E.2d at 303, fn. 3, citing McCord v. Div. of Parks & Recreation (1978), 54 Ohio St.2d 72, 74, 8 O.O.3d 77, 79, 375 N.E.2d 50, 52, at fn.

In lieu of the common-law distinctions, the statute defines a "recreational user" as "a person to whom permission has been granted, without the payment of a fee or consideration to the owner * * *." Both in this case and in Loyer, the injured party fits within the statutory definition of "recreational user." In both cases the injured party paid no fee or consideration for the use of the premises. Loyer was not decided upon the ground that the injured party paid a consideration, but on the basis that the premises were not held open to public use. We resolve this case on the same principle.

The defendants are not entitled to summary judgment on the basis of the recreational user statute.

II

We next address the issue of whether the association and LaCoss-Englehaupt owe a duty to Fryberger.

Liability for negligence is predicated upon injury caused by the failure to discharge a duty owed to the injured party Wills, supra. Liability for injuries arising from the defective condition of property is an incident to occupation or control of the property. Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St.3d 92, 94, 30 OBR 295, 297, 507 N.E.2d 352, 354, citing Cooper v. Roose (1949), 151 Ohio St. 316, 317, 39 O.O. 145, 146, 85 N.E.2d 545, 546; Berkowitz v. Winston (1934), 128 Ohio St. 611, 1 O.O. 269, 193 N.E. 343; Ripple v. Mahoning Natl. Bank (1944), 143 Ohio St. 614, 28 O.O. 508, 56 N.E.2d 289.

A

The association contends that it did not have the control necessary for tort liability because it did not own the dock from which Fryberger dove and it had no control over who was invited by any of the individual property owners, including Borcoman, to use the lake and the docks appurtenant to it. The association grounds its argument on this court's statement that: "The control necessary as the basis for tort liability implies the power and the right to admit people to the premises and to exclude people from it, and involves a substantial exercise of that right and power." Wills, supra, 26 Ohio St.3d at 188, 26 OBR at 162, 497 N.E.2d at 1120, citing Cooper v. Roose (1949), 151 Ohio St. 316, 39 O.O. 145, 85 N.E.2d 545; Brown v. Cleveland Baseball Co. (1952), 158 Ohio St. 1, 47 O.O. 478, 106 N.E.2d 632.

The association's reliance is misplaced for two reasons. First, it ignores the possibility that the right to admit or exclude can be shared by more than one defendant. Second, it assumes that the right to admit or exclude is the only indicium of control.

The fact that the association may not have the exclusive power to admit or exclude, or that it did not have the power to exclude the injured party, is not dispositive. Duty can be found where several defendants share the control over the property where the injury occurs. Bryant v. Schrage (1944), 75 Ohio App. 62, 66, 30 O.O. 358, 360, 60 N.E.2d 801, 803; Staples v. Bernabucci (1935), 119 Conn. 443, 177 A. 380; 62 American Jurisprudence 2d (1972) 245, Premises Liability, Section 16. In Brown, supra, the court found that the lessor and the lessee shared the right to admit or exclude. Neither the lessee nor the lessor had exclusive control over the property. Nevertheless, we held that the lessor had a duty to the party injured on the premises. The argument which the association asks us to adopt here would lead to the conclusion that no liability could lie where control of property is held by more than one defendant. This is not the law and we decline the invitation to make it so.

Further, the right to admit or exclude is not the sole measure of control. Jacobs v. Mutual Mtge. & Invest. Co. (1966), 6 Ohio St.2d 92, 35 O.O.2d 123, 216 N.E.2d 49. There are several indicia of control to be considered in the present case. The association maintains a swimming beach area on the lake. ³ It has some control over who is admitted to or excluded from the lake. The association dispatched a patrol boat to monitor boat safety on the lake. The association controlled the water level of the lake. ⁴ The association undertook weed control within the lake. In its answer, the association admits to having "an interest in and to the * * * lake and/or the management thereof."

Therefore, a genuine issue exists as to whether the association had sufficient control of the premises to impose a duty to Fryberger. Summary judgment for the association is not appropriate on this issue.

B

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