Uddin v. Embassy Suites Hotel

Decision Date13 December 2005
Docket NumberNo. 04AP-754.,04AP-754.
Citation848 N.E.2d 519,165 Ohio App.3d 699,2005 Ohio 6613
PartiesUDDIN, Admr., Appellant, v. EMBASSY SUITES HOTEL et al., Appellees.
CourtOhio Court of Appeals

Twyford & Donahey P.L.L., W. Joseph Edwards, and Mark E. Defossez, Columbus, for appellant.

Mansour, Gavin, Gerlack & Manos Co., L.P.A., William J. Muniak, and Amy L. Phillips, Cleveland, for appellees.

PETREE, Judge.

{¶ 1} Plaintiff-appellant, Al Uddin, administrator of the estate of Shayla Uddin, appeals from a judgment of the Franklin County Court of Common Pleas, which granted summary judgment in favor of defendants-appellees, Embassy Suites Hotel and Hilton Hotels Corporation (collectively, "defendants"). For the following reasons, we affirm in part, reverse in part, and remand the matter to the common pleas court.

{¶ 2} On April 29, 2000, Shayla Uddin, a ten-year-old child, drowned in an indoor pool at Embassy Suites Hotel, Columbus, Ohio, while she and her family attended a birthday party at the hotel. Thereafter, on March 27, 2002, in a wrongful-death and survivorship action, plaintiff sued defendants, as well as anonymous defendants, alleging two causes of action: (1) negligence and (2) liability based upon the doctrine of attractive nuisance.

{¶ 3} Defendants moved for summary judgment, claiming that (1) they complied with all safety regulations, (2) they exercised ordinary, reasonable care, and (3) they were not subject to liability under the attractive-nuisance doctrine. Thereafter, granting defendants' motion for summary judgment, the trial court rendered judgment in favor of defendants. From this judgment, plaintiff appeals and assigns a single error for our consideration:

The trial court erred in granting appellee's motion for summary judgment since a genuine issue of material fact existed as to the negligence of Embassy Suites.

{¶ 4} Appellate review of a lower court's granting of summary judgment is de novo. Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833, 778 N.E.2d 1093, at ¶ 27. "`De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.'" Id., quoting Brewer v. Cleveland City Schools (1997), 122 Ohio App.3d 378, 701 N.E.2d 1023, citing Dupler v. Mansfield Journal (1980), 64 Ohio St.2d 116, 119-120, 18 O.O.3d 354, 413 N.E.2d 1187.

{¶ 5} Summary judgment is proper when a movant for summary judgment demonstrates that (1) no genuine issue of material fact exists, (2) the movant is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183, 677 N.E.2d 343.

{¶ 6} Under Civ.R. 56(C), a movant bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Once a movant discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264; Vahila v. Hall (1997), 77 Ohio St.3d 421, 430, 674 N.E.2d 1164; Civ.R. 56(E).

{¶ 7} "To maintain an action for damages for wrongful death upon the theory of negligence, a plaintiff must show (1) the existence of a duty owing to plaintiff's decedent, i.e., the duty to exercise ordinary care, (2) a breach of that duty, and (3) proximate causation between the breach of duty and the death." Bennison v. Stillpass Transit Co. (1966), 5 Ohio St.2d 122, 34 O.O.2d 254, 214 N.E.2d 213, paragraph one of the syllabus. For a party to recover under a theory of negligence, all the elements of negligence must be demonstrated. Whiting v. Ohio Dept. of Mental Health (2001), 141 Ohio App.3d 198, 202, 750 N.E.2d 644. Furthermore, "`negligence is without legal consequence unless it is a proximate cause of an injury.'" Id., quoting Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 28 OBR 410, 504 N.E.2d 19.

{¶ 8} Whether a duty exists is a question of law for a court to determine. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265. "There is no formula for ascertaining whether a duty exists. Duty `* * * is the court's "expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Prosser, Law of Torts (4th ed.1971) pp. 325-326.)'" Id., quoting Weirum v. RKO Gen., Inc. (1975), 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.

{¶ 9} In cases of premises liability, Ohio adheres to common-law classifications of invitee, licensee, and trespasser. Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 315, 662 N.E.2d 287. Under Ohio law, the status of a person who enters upon the land of another, i.e., trespasser, licensee, or invitee, defines the scope of the legal duty that a landowner owes the entrant. Id., citing Shump v. First Continental-Robinwood Assoc. (1994), 71 Ohio St.3d 414, 417, 644 N.E.2d 291.

{¶ 10} "A trespasser is one who, without express or implied authorization, invitation or inducement, enters private premises purely for his own purposes or convenience." McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 31 OBR 449, 510 N.E.2d 386. Comparatively, "[i]nvitees are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner," Gladon, 75 Ohio St.3d at 315, 662 N.E.2d 287, while "a licensee is one who enters upon the premises of another, by permission or acquiescence and not by invitation, for his own benefit or convenience." Quinn v. Montgomery Cty. Educational Serv. Ctr., Montgomery App. No. 20596, 2005-Ohio-808, 2005 WL 435214, at ¶ 12, citing Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68, 28 OBR 165, 502 N.E.2d 611; and Richardson v. Novak (Nov. 3, 1993), Montgomery App. No. 13947, 1993 WL 452007.

{¶ 11} Here, according to a police report,1 a room was rented at the hotel where the birthday party was held. Because decedent and her family rightfully came upon the hotel premises for some purpose that was beneficial to defendants as a business owner, we conclude that decedent and her family were business invitees.

{¶ 12} "Generally, an owner or occupier of business premises owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn invitees of latent or hidden dangers." Nageotte v. Cafaro Co., 160 Ohio App.3d 702, 2005-Ohio-2098, 828 N.E.2d 683, at ¶ 26, citing Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474, and Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 358, 12 O.O.3d 321, 390 N.E.2d 810. However, the owner or occupier of a business premise is not an insurer of a business invitee's safety. Nageotte at ¶ 26, citing Paschal at 203-204, 18 OBR 267, 480 N.E.2d 474.

{¶ 13} Accordingly, in this case, defendants, as landowners, were under a legal duty to maintain the premises in a reasonably safe condition and to warn decedent of latent or hidden dangers.

{¶ 14} In the present case, the trial court concluded that defendants were relieved of a duty toward decedent because the indoor swimming pool constituted an open-and-obvious danger. See, generally, Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 5, citing Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, paragraph one of the syllabus (observing that under the open-and-obvious doctrine, "a premises-owner owes no duty to persons entering those premises regarding dangers that are open and obvious"); Armstrong at ¶ 5 (stating that "[w]hen applicable * * * the open-and-obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claims").

{¶ 15} In Armstrong, reaffirming the viability of the open-and-obvious doctrine, the Supreme Court of Ohio explained that "[t]he rationale underlying [the open-and-obvious doctrine] is `that the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves.'" Id. at ¶ 5, quoting Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504.

{¶ 16} In Brockmeyer v. Deuer (Nov. 19, 1981), Franklin App. No. 81AP-537, 1981 WL 3605, a case involving an eight-year-old boy who drowned in an unused swimming pool, this court held that the condition of an abandoned swimming pool and its potential perils were open and obvious and, as a matter of law, fell short of being hidden perils or traps. The Brockmeyer court observed that "[t]here was no disguise or concealment by the landowner of the statical condition that existed and was open and obvious to anyone contemplating using the abandoned swimming pool." Id.

{¶ 17} However, unlike Brockmeyer, the issue in this case does not concern whether an abandoned swimming pool and its potential perils constituted hidden perils or traps.

{¶ 18} In Mullens v. Binsky (1998), 130 Ohio App.3d 64, 719 N.E.2d 599, a case involving an 18-year-old guest who drowned in a swimming pool during a graduation party at a private residence, this court observed that "`a pool becomes unreasonably dangerous only when there is a hidden defect or dangerous...

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