McCord v. Ohio Division of Parks and Recreation, 77-610

• Decision Date: 19 April 1978
• Docket Number: No. 77-610,77-610
• Parties: , 8 O.O.3d 77 McCORD, Appellee, v. OHIO DIVISION OF PARKS AND RECREATION, Appellant.
• Court: Ohio Supreme Court

Page 72

54 Ohio St.2d 72

375 N.E.2d 50, 8 O.O.3d 77

McCORD, Appellee, v. OHIO DIVISION OF PARKS AND RECREATION, Appellant.

No. 77-610.

Supreme Court of Ohio.

April 19, 1978.

As administratrix of the estate of Willie Joe McCord, Jr., appellee, Armelia McCord, filed a complaint for wrongful death in the Court of Claims on June 2, 1976. The affidavits of the parties establish that on June 20, 1975, appellee, accompanied by her nine-year-old son, Willie Joe McCord, Jr., visited Punderson State Park, in Geauga County, a public recreational facility maintained by the state of Ohio at which public swimming is permitted without the payment of a fee. Appellee alleges that towards evening on that date, Willie Joe McCord, Jr., was found drowned in the lake located within Punderson State Park, and that Patricia Flynn, a lifeguard employed by appellant, the Ohio Division of Parks and Recreation, was on duty in the park at the time of the drowning.

The complaint alleges further that appellant and its employees were negligent in that they "failed to fulfill their duty of reasonable care to supervise and watch over the minor children known to be swimming in said lake; * * * (failed) to supervise the operation of the lake or the persons swimming therein; * * * (failed) to have adequately trained lifeguards at the lake for the protection and supervision of persons swimming therein; * * * (failed) to train lifeguards adequately before permitting them to assume such a role at the lake; * * * (failed) to have proper guidelines and or instructions for lifeguards assigned to the lake * * *." The complaint also alleges that, at the time of the drowning, Patricia Flynn "was informed by certain friends of Willie Joe McCord, Jr., that he had disappeared underwater, in the area informants and Willie Joe McCord, Jr., were swimming"; that she "refused to act or make any investigation of Willie Joe McCord, Jr.'s disappearance"; and that she "failed to make any investigation of * * * (his) disappearance until approximately 30 minutes after having been first informed * * *."

Appellant moved the court to dismiss the action pursuant to Civ.R. 12(B)(6), or in the alternative, to grant summary judgment in its favor. The Court of Claims sustained appellant's motion to dismiss on the ground that under R.C. 1533.181 no owner of premises, including the state of Ohio, owes any duty to a recreational user to maintain the premises in a safe manner for entry or use.

Appellee appealed this order of dismissal to the Court of Appeals for Franklin County, which, on March 31, 1977, reversed the order and remanded the cause to the Court of Claims, holding that appellee had stated a claim against appellant and that "there was an issue of fact raised concerning the negligence of an employee attributed to an employer which is applicable to the State of Ohio."

This cause is now before this court upon the allowance of a motion to certify the record.

Rogers, Horton & Forbes, Earle C. Horton and Mabel M. Jasper, Cleveland, for appellee.

William J. Brown, Atty. Gen., and Melvin D. Weinstein, Dayton, for appellant.

PER CURIAM.

Prior to the enactment of the Court of Claims Act, R.C. Chapter 2743, the state enjoyed immunity from tort liability. The state has provided statutory means of adjudicating certain claims against it under R.C. 2743.02(A), which reads, in pertinent part, as follows:

"The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits...