Rickey G. Bennett, Administrator of the Estates of Cher D. Bennett v. Jeffrey D. Stanley and Stacey Stanley, 99-LW-5916

Decision Date08 December 1999
Docket Number98 CA 36,99-LW-5916
PartiesRICKEY G. BENNETT, ADMINISTRATOR OF THE ESTATES OF CHER D. BENNETT, DECEASED, et al., Plaintiffs-Appellants v. JEFFREY D. STANLEY AND STACEY STANLEY, Defendants-Appellees Case
CourtUnited States Court of Appeals (Ohio)

COUNSEL FOR APPELLANTS: James H. McCauley, P.O. Box 196, Belpre, Ohio 45714.

COUNSEL FOR APPELLEES: John E. Erb and Abe Sellers, 424 Second Street, P.O. Box 739, Marietta, Ohio 45750.

DECISION

ABELE J.

This is an appeal from a Washington County Common Pleas Court summary judgment in favor of Jeffrey D. Stanley and Stacey Stanley, defendants below and appellees herein. Rickey G Bennett, the administrator of the estates of Cher D. Bennett and of Chance C. Lattea and the custodian of Kyleigh D. Bennett, plaintiffs below and appellants herein, assign the following errors.

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DETERMINING THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT FOR DETERMINATION BY A JURY."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DETERMINING THAT REASONABLE MINDS COULD COME TO BUT ONE CONCLUSION, VIEWING THE EVIDENCE MOST FAVORABLY FOR THE PLAINTIFFS-APPELLANTS, AND THAT DEFENDANTS-APPELLEES WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN RULING THAT A FIVE-YEAR-OLD CHILD COULD BE GUILTY OF TRESPASS, OR THAT SUCH ISSUE WAS NOT A JURY ISSUE."

FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN INTERPRETING THE DEFENDANTS/ LANDOWNERS' DUTY OF CARE IN THIS CASE."

SIXTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANTS-APPELLEES' ACTIONS IN THIS CASE COULD NOT BE FOUND BY A JURY TO HAVE BEEN ACTIVE AND NEGLIGENT OPERATION OF A STATIC CONDITION UNDER WILLS V. FRANK HOOVER SUPPLY AND COY V. COLUMBUS, DELAWARE & MARION ELECTRIC CO."

SEVENTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DETERMINING THAT ELLIOTT V. NAGY INVOLVING A PROPERLY MAINTAINED SWIMMING POOL CASE COMPELLED SUMMARY JUDGMENT FOR DEFENDANTS-APPELLEES UNDER THE FACTS IN THIS CASE."

EIGHTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY FAILING TO CONSIDER WHETHER DEFENDANTS-APPELLEES' CONDUCT COULD BE FOUND BY A JURY TO HAVE BEEN WILLFUL OR WANTON."

Our review of the record reveals the following facts pertinent to the instant appeal. In June of 1996, appellees purchased residential property located in Vincent, Ohio. A swimming pool was located on the property. The previous owner informed appellees that the swimming pool had not been used in approximately three years. When appellees moved into the residence, the swimming pool was in a state of disrepair. A tarp filled with leaves covered the stagnant water that had accumulated in the pool. Appellees had seen tadpoles and a snake in the water. Fencing enclosed two sides of the pool and a low brick wall surrounded the rest of the pool. No ladders were located inside the pool.

Appellees eventually removed the tarp covering the pool and drained the pool. Appellees also removed the fence surrounding the pool. Appellees considered restoring the pool to a useable condition, but at the time, found the expense too great. The pool thus was left in its state of disrepair.

In the fall of 1996, Rickey and Cher Bennett, along with their three small children, moved into the residence adjacent to appellees' property. Approximately one hundred feet separated appellees' property from the Bennetts' property. Appellees often saw the Bennett children Playing outside, but appellees never saw the children playing on their property. On one occasion, Stacey Stanley asked Chance to come onto her property to retrieve the Bennetts' dog.

Rickey Bennett cautioned Chance about the dangers of the swimming pool located on appellees' property and told Chance to stay away from the pool. Nevertheless, on March 20, 1997, Chance apparently wandered onto appellees' property and headed to the swimming pool. Around five o'clock in the afternoon, when Rickey returned home from work, Rickey discovered his two young daughters crying. The older daughter told Rickey that "Mommy" and Chance were "drowning in the water." Eventually, Rickey, with the help of his nephew and Jeffrey Stanley, discovered his wife and Chance in appellees' swimming pool. The three attempted life-saving techniques, but, regrettably, they could not revive Cher and Chance.

A police investigation revealed that Chance had gone to the pool and was feeding cereal to the frogs when he fell in the pool. Cher apparently drowned while trying to save her son. The police report indicated that the pool had contained approximately six feet of water at the time of the accident.[1]

On June 16, 1997, appellants instituted a wrongful death action against appellees. In their complaint, appellants alleged that appellees negligently maintained an abandoned swimming pool on their property and that appellees' negligence proximately caused the March 20, 1997 drowning of Chance and Cher. Appellants claimed that the pool had collected at least six feet of water and that the accumulation of algae rendered the pool extremely slippery. Appellants also asserted that the pool did not have adequate fencing or ladders. Appellants averred that appellees created a dangerous condition by negligently maintaining the pool and that appellees reasonably should have known that the pool posed an unreasonable risk of serious harm to others. Appellants specifically alleged that appellees' pool created an unreasonable risk of harm to children who, because of their youth, would not realize the potential danger. Appellants further asserted that appellees' conduct in maintaining the pool constituted willful and wanton misconduct such as to justify an award of punitive damages. On July 14, 1997, appellees filed an answer denying liability.

On June 2, 1998, appellees filed a motion for summary judgment. Appellees' motion asserted that Chance and Cher were undiscovered trespassers upon their property and that appellees' conduct, therefore, should not be judged according to the ordinary negligence standard. Rather, appellees claimed that in order for appellants to recover, appellants would need to demonstrate that appellees' conduct constituted willful and wanton misconduct. Appellees argued that appellants failed to specify any facts to substantiate a claim that appellees acted willfully or wantonly. Appellees further asserted that the swimming pool did not constitute a "dangerous apparatus" such as to impose a higher standard of care upon appellees. Thus, appellees claimed that no genuine issues of material fact remained to be determined as to whether appellees were liable to appellants for the deaths of Chance and Cher.

On July 30, 1998, appellants filed a memorandum in opposition to appellees' summary judgment motion. Appellants argued that appellees incorrectly asserted that Chance and Cher were trespassers. Appellants claimed that a child of tender years cannot commit a trespass. Appellants further claimed that Cher entered appellees' property not as an ordinary trespasser. Rather, appellants asserted that Cher entered appellees' property out of necessity to save her drowning child. Additionally, appellants alleged that appellees' maintenance of the swimming pool constituted a dangerous active operation and thus imposed a higher standard of care upon appellees. Finally, appellants argued that reasonable minds could conclude that appellees' conduct in maintaining the swimming pool "in the virtual deathtrap condition as [appellees] created * * * with three small children under the age of six living 100 feet away, constituted willful, malicious, wanton and reckless conduct."

On August 28, 1998, the trial court granted appellees' motion. The trial court agreed with appellees that Chance and Cher were trespassers and that appellees, therefore, did not owe Chance and Cher a duty of ordinary care. The trial court concluded that appellees owed Chance and Cher the duty to refrain from willful and wanton misconduct. The trial court further concluded that appellees' maintenance of the swimming pool did not amount to a dangerous active operation made perilous by appellees. The trial court reasoned that the dangers associated with the swimming pool were open and obvious. Thus, the trial court concluded that appellants failed to set forth specific facts demonstrating the existence of a genuine issue of material fact and granted appellees' motion for summary judgment.

Appellants filed a timely notice of appeal.

I

We initially note that each of appellants' eight assignments of error challenges the trial court's granting of summary judgment.[2] Appellants' first three assignments of error essentially complain that the trial court erroneously applied the summary judgment standard. Appellants' remaining assignments of error essentially challenge the trial court's conclusions that: (1) Chance and Cher were trespassers; (2) the swimming pool did not constitute a dangerous active and negligent operation of a static condition; and (3) appellants failed to allege willful and wanton misconduct.

Appellees argue that. the trial court properly entered summary judgment in their favor. Appellees assert that no genuine issue of material fact remains as to whether they breached the applicable duty of care to Chance and Cher. Appellees claim that they owed Chance and Cher the duty to refrain from willful and wanton misconduct and that no evidence exists that appellees acted willfully or wantonly in maintaining the swimming pool. Appellees further deny appellants' allegations that the swimming pool amounted to a...

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