[Cite as Drury v. Blackston, 2015-Ohio-4725.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
JAMES PAUL DRURY, A MINOR, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 1-15-39
v.
DAVID C. BLACKSTON, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court Trial Court No. CV20140243
Judgment Affirmed
Date of Decision: November 16, 2015
APPEARANCES:
Aaron L. Bensinger for Appellants
John A. Fiocca, Jr. for Appellees Case No. 1-15-39
PRESTON, J.
{¶1} Plaintiffs-appellants, James Paul Drury (“James”), Chanphen Drury
(“Chanphen”), and Dustin D. Drury (“Dustin”) (collectively “Plaintiffs”), appeal
the judgment of the Allen County Court of Common Pleas granting summary
judgment in favor of defendants-appellees, David C. Blackston (“David”) and
Heather R. Blackston (“Heather”) (collectively “Defendants”). For the reasons
that follow, we affirm.
{¶2} This case stems from an incident on June 23, 2013 during which
James ingested water after entering the backyard swimming pool of the
Defendants. (Doc. No. 35). On June 23, 2013, the Defendants offered to
supervise James and his sister, Ashley Drury (“Ashley”), at their residence while
James’ parents—Chanphen and Dustin—went shopping at the mall. (Id.).
Chanphen dropped James and Ashley off to play in the Defendants’ backyard
where there was a swimming pool, a trampoline, and a tree house. (Id.). While
the Defendants supervised, James and Ashley played in the pool, on the
trampoline, and in the tree house with the Defendants’ two children and two
neighborhood children. (Id.). Heather became ill during that time and went inside
the house. (Id.). At some point, James removed his “arm floaties,” which he
needed to be able to swim, and entered the pool. (Id.). After James entered the
pool without his arm floaties, one of the Defendants’ children called for David to
come to the pool. (Id.). David found his daughter holding James so that his head
-2- Case No. 1-15-39
was above the water. (Id.). David pulled James from the swimming pool, stood
him up on the grass, and asked him if he swallowed water, to which he responded
that he had. (Id.). James put his finger down his throat and made himself throw
up pool water. (Id.). Heather, a registered nurse, came outside to make sure
James was alright, and James responded that he was. (Id.). As a precaution,
James was taken to Lima Memorial Hospital. (Id.). Lima Memorial Hospital
transported James to Toledo Children’s Hospital by helicopter for further
assessment. (Id.). James was released from Toledo Children’s Hospital the
following day. (Id.).
{¶3} The Plaintiffs filed a complaint on April 11, 2014, in which they
alleged negligence against the Defendants. (Doc. No. 1). On July 14, 2014, the
Defendants filed their answer. (Doc. No. 10). On July 18, 2014, the Defendants
filed an amended answer. (Doc. No. 11).
{¶4} On February 25, 2015, the Defendants filed a motion for summary
judgment arguing that the “Plaintiffs’ negligence claims are superseded and barred
by Ohio’s recreational activity doctrine” and that there is no evidence of an injury.
(Doc. No. 26). On April 30, 2015, the Plaintiffs filed a memorandum in
opposition to the Defendants’ motion for summary judgment. (Doc. No. 33). On
May 14, 2015, the Defendants filed a response to the Plaintiffs’ memorandum in
opposition to their motion for summary judgment. (Doc. No. 34).
-3- Case No. 1-15-39
{¶5} On May 22, 2015, the trial court granted the Defendants’ motion for
summary judgment after concluding that “the recreational activity doctrine
protects Defendants from liability in this case” since James was engaging in the
recreational activity of swimming at the time of his alleged injury. (Doc. No. 35).
The trial court further concluded that there is no evidence in the record that the
Defendants’ conduct was intentional or reckless. (Id.). As such, the trial court
concluded that the Plaintiffs cannot, as a matter of law, prove the essential
elements of their negligence claim. (Id.).
{¶6} The Plaintiffs filed their notice of appeal on June 19, 2015. (Doc. No.
37). They raise three assignments of error for our review. Because they are
related, we address the assignments of error together.
Assignment of Error No. I
Whether the Recreational Activity Doctrine, a primary assumption of the risk rule, prevents the Plaintiffs from proving duty in a negligence claim, when a child under the age of seven is the party “assuming the risk”.
Assignment of Error No. II
Whether the Plaintiff can prove that Defendants owed a duty to Plaintiff, a four year old child, to properly supervise him while he was in and around their swimming pool in their backyard.
Assignment of Error No. III
Whether under all of the circumstances a reasonable person would conclude that Defendants had assumed custodial responsibility, such as to elevate their duty to a heighted standard of care.
-4- Case No. 1-15-39
{¶7} In their first assignment of error, the Plaintiffs argue that the trial court
erred in granting the Defendants’ motion for summary judgment because the
recreational-activity doctrine does not apply to children under the age of seven—
that is, the Plaintiffs argue that children under the age of seven cannot assume the
risk of swimming in a swimming pool. Specifically, the Plaintiffs argue that
because children under the age of seven “are conclusively presumed to be
incapable of negligence or contributory negligence,” the Defendants were required
“to exercise a heighted standard of care toward James, or at the very least ordinary
care for his safety.” (Appellant’s Brief at 11). In their second assignment of error,
the Plaintiffs argue that the Defendants owed James a “heighted duty of care”
because they agreed to supervise James and because James could not appreciate
the danger of swimming in the Defendants’ backyard swimming pool without his
arm floaties. (Id. at 13). In their third assignment of error, the Plaintiffs argue that
the Defendants had custodial responsibility of James, which created a heighted
duty of care. Also, in their third assignment of error, the Plaintiffs argue that
negligence can be established under the attractive-nuisance doctrine.
{¶8} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there
is no genuine issue of material fact, the moving party is entitled to judgment as a
matter of law, and reasonable minds can reach but one conclusion when viewing
-5- Case No. 1-15-39
the evidence in favor of the non-moving party, and the conclusion is adverse to the
non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.
Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶9} “The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶
13, citing Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the
moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument.”
Id., citing Dresher at 292.
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[Cite as Drury v. Blackston, 2015-Ohio-4725.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
JAMES PAUL DRURY, A MINOR, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 1-15-39
v.
DAVID C. BLACKSTON, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court Trial Court No. CV20140243
Judgment Affirmed
Date of Decision: November 16, 2015
APPEARANCES:
Aaron L. Bensinger for Appellants
John A. Fiocca, Jr. for Appellees Case No. 1-15-39
PRESTON, J.
{¶1} Plaintiffs-appellants, James Paul Drury (“James”), Chanphen Drury
(“Chanphen”), and Dustin D. Drury (“Dustin”) (collectively “Plaintiffs”), appeal
the judgment of the Allen County Court of Common Pleas granting summary
judgment in favor of defendants-appellees, David C. Blackston (“David”) and
Heather R. Blackston (“Heather”) (collectively “Defendants”). For the reasons
that follow, we affirm.
{¶2} This case stems from an incident on June 23, 2013 during which
James ingested water after entering the backyard swimming pool of the
Defendants. (Doc. No. 35). On June 23, 2013, the Defendants offered to
supervise James and his sister, Ashley Drury (“Ashley”), at their residence while
James’ parents—Chanphen and Dustin—went shopping at the mall. (Id.).
Chanphen dropped James and Ashley off to play in the Defendants’ backyard
where there was a swimming pool, a trampoline, and a tree house. (Id.). While
the Defendants supervised, James and Ashley played in the pool, on the
trampoline, and in the tree house with the Defendants’ two children and two
neighborhood children. (Id.). Heather became ill during that time and went inside
the house. (Id.). At some point, James removed his “arm floaties,” which he
needed to be able to swim, and entered the pool. (Id.). After James entered the
pool without his arm floaties, one of the Defendants’ children called for David to
come to the pool. (Id.). David found his daughter holding James so that his head
-2- Case No. 1-15-39
was above the water. (Id.). David pulled James from the swimming pool, stood
him up on the grass, and asked him if he swallowed water, to which he responded
that he had. (Id.). James put his finger down his throat and made himself throw
up pool water. (Id.). Heather, a registered nurse, came outside to make sure
James was alright, and James responded that he was. (Id.). As a precaution,
James was taken to Lima Memorial Hospital. (Id.). Lima Memorial Hospital
transported James to Toledo Children’s Hospital by helicopter for further
assessment. (Id.). James was released from Toledo Children’s Hospital the
following day. (Id.).
{¶3} The Plaintiffs filed a complaint on April 11, 2014, in which they
alleged negligence against the Defendants. (Doc. No. 1). On July 14, 2014, the
Defendants filed their answer. (Doc. No. 10). On July 18, 2014, the Defendants
filed an amended answer. (Doc. No. 11).
{¶4} On February 25, 2015, the Defendants filed a motion for summary
judgment arguing that the “Plaintiffs’ negligence claims are superseded and barred
by Ohio’s recreational activity doctrine” and that there is no evidence of an injury.
(Doc. No. 26). On April 30, 2015, the Plaintiffs filed a memorandum in
opposition to the Defendants’ motion for summary judgment. (Doc. No. 33). On
May 14, 2015, the Defendants filed a response to the Plaintiffs’ memorandum in
opposition to their motion for summary judgment. (Doc. No. 34).
-3- Case No. 1-15-39
{¶5} On May 22, 2015, the trial court granted the Defendants’ motion for
summary judgment after concluding that “the recreational activity doctrine
protects Defendants from liability in this case” since James was engaging in the
recreational activity of swimming at the time of his alleged injury. (Doc. No. 35).
The trial court further concluded that there is no evidence in the record that the
Defendants’ conduct was intentional or reckless. (Id.). As such, the trial court
concluded that the Plaintiffs cannot, as a matter of law, prove the essential
elements of their negligence claim. (Id.).
{¶6} The Plaintiffs filed their notice of appeal on June 19, 2015. (Doc. No.
37). They raise three assignments of error for our review. Because they are
related, we address the assignments of error together.
Assignment of Error No. I
Whether the Recreational Activity Doctrine, a primary assumption of the risk rule, prevents the Plaintiffs from proving duty in a negligence claim, when a child under the age of seven is the party “assuming the risk”.
Assignment of Error No. II
Whether the Plaintiff can prove that Defendants owed a duty to Plaintiff, a four year old child, to properly supervise him while he was in and around their swimming pool in their backyard.
Assignment of Error No. III
Whether under all of the circumstances a reasonable person would conclude that Defendants had assumed custodial responsibility, such as to elevate their duty to a heighted standard of care.
-4- Case No. 1-15-39
{¶7} In their first assignment of error, the Plaintiffs argue that the trial court
erred in granting the Defendants’ motion for summary judgment because the
recreational-activity doctrine does not apply to children under the age of seven—
that is, the Plaintiffs argue that children under the age of seven cannot assume the
risk of swimming in a swimming pool. Specifically, the Plaintiffs argue that
because children under the age of seven “are conclusively presumed to be
incapable of negligence or contributory negligence,” the Defendants were required
“to exercise a heighted standard of care toward James, or at the very least ordinary
care for his safety.” (Appellant’s Brief at 11). In their second assignment of error,
the Plaintiffs argue that the Defendants owed James a “heighted duty of care”
because they agreed to supervise James and because James could not appreciate
the danger of swimming in the Defendants’ backyard swimming pool without his
arm floaties. (Id. at 13). In their third assignment of error, the Plaintiffs argue that
the Defendants had custodial responsibility of James, which created a heighted
duty of care. Also, in their third assignment of error, the Plaintiffs argue that
negligence can be established under the attractive-nuisance doctrine.
{¶8} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there
is no genuine issue of material fact, the moving party is entitled to judgment as a
matter of law, and reasonable minds can reach but one conclusion when viewing
-5- Case No. 1-15-39
the evidence in favor of the non-moving party, and the conclusion is adverse to the
non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.
Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶9} “The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶
13, citing Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the
moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument.”
Id., citing Dresher at 292. “The nonmoving party must then rebut with specific
facts showing the existence of a genuine triable issue; he may not rest on the mere
allegations or denials of his pleadings.” Id., citing Dresher at 292 and Civ.R.
56(E).
{¶10} “‘[I]n order to establish actionable negligence, one seeking recovery
must show the existence of a duty, the breach of the duty, and injury resulting
proximately therefrom.’” Id. at ¶ 14, quoting Strother v. Hutchinson, 67 Ohio
St.2d 282, 285 (1981).
{¶11} “In applying primary assumption of the risk to recreational activities,
the Ohio Supreme Court has held that ‘[w]here individuals engage in recreational
or sports activities, they assume the ordinary risks of the activity and cannot
recover for any injury unless it can be shown that the [defendant’s] actions were
-6- Case No. 1-15-39
either “reckless” or “intentional” as defined in Sections 500 and 8A of the
Restatement of Torts 2d.’” Taylor v. Mathys, 3d Dist. Union No. 14-04-32, 2005-
Ohio-150, ¶ 10, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶
6, quoting Marchetti v. Kalish, 53 Ohio St.3d 95 (1990), syllabus. See also
Kinnison v. Ohio State Univ., 10th Dist. Franklin No. 13AP-501, 2013-Ohio-5715,
¶ 10 (concluding that a defendant cannot be liable in negligence for children
injured in recreational pursuits if the defendant assumed responsibility for
supervising the children; rather, “intentional or reckless conduct is necessary if
liability is to be established”), citing Gentry and Marchetti. “No liability attaches
for injuries caused by negligence that occurs during recreational activities.”
Taylor at ¶ 10, citing Gentry at ¶ 6, citing Thompson v. McNeill, 53 Ohio St.3d
102 (1990), paragraphs one and two of the syllabus. Moreover, the age of the
person injured is immaterial to the application of the recreational-activity doctrine.
“[I]n a personal injury action brought for injuries sustained while an
individual is a participant in or a spectator at a sport or recreational
activity, the age of the participant or spectator and whether he or
she was capable of appreciating the inherent risks are immaterial.
Instead, recovery is dependent upon whether the defendant’s conduct
was either reckless or intentional.”
(Emphasis added.) Id. at ¶ 12, quoting Gentry at ¶ 13.
-7- Case No. 1-15-39
{¶12} The Plaintiffs’ arguments that the recreational-activity doctrine
should not apply to children under the age of seven since young children cannot
appreciate the risk of swimming in a swimming pool and that the Defendants
owed James a heighted duty of care since they assumed responsibility for James’
supervision are meritless. Swimming is a recreational activity. Estate of Vince v.
Estate of Smallwood, 11th Dist. Trumbull No. 2005-T-0017, 2006-Ohio-1697, ¶
20 (concluding that swimming in a backyard pool is a recreational activity). See
also Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855, ¶ 51
(1st Dist.) (swimming lessons are a type of supervised recreational activity). That
James was four-years old at the time of his alleged injury is immaterial. Taylor at
¶ 12, quoting Gentry at ¶ 13. See also Kinnison at ¶ 10, citing Gentry at syllabus.
Also immaterial is the Defendants’ assumption of responsibility for supervising
James. Kinnison at ¶ 9. Therefore, because James was swimming in the
Defendants’ backyard pool, he was engaging in a recreational activity and the
recreational-activity doctrine shields the Defendants from claims of negligence
and requires a showing of reckless or intentional conduct. Kinnison at ¶ 10;
Gentry at syllabus. The Plaintiffs did not allege that the Defendants acted
intentionally or recklessly, and we need not address those issues.
{¶13} Accordingly, because the recreational-activity doctrine shields the
Defendants from claims of negligence, and because the Plaintiffs did not plead, or
offer evidence of, reckless or intentional conduct on the part of the Defendants, the
-8- Case No. 1-15-39
Plaintiffs cannot demonstrate the requisite conduct to avoid summary judgment.
Therefore, the Plaintiffs’ first and second assignments of error are overruled, and
their third assignment of error is overruled, in part.
{¶14} The Plaintiffs’ also assert in their third assignment of error that the
attractive-nuisance doctrine creates a higher duty of care. The attractive-nuisance
doctrine is a form of tort liability that subjects landowners to “civil liability for
physical harm sustained by a child trespasser under certain circumstances where
the landowner is aware of an artificial condition on the property that poses an
unreasonable risk of death or serious bodily harm to children and the owner is
aware that children frequent the area where the condition exists.” Kiracofe v.
Ketcham, 3d Dist. Allen No. 1-05-19, 2005-Ohio-5271, ¶ 14, citing Bennett v.
Stanley, 92 Ohio St.3d 35, 42 (2001) and Restatement of the Law 2d, Torts,
Section 339 (1965).
{¶15} “At common law, the legal duty owed by a landowner to one who
enters upon his land was contingent upon the status of the entrant: trespasser,
licensee, or invitee.” Carnes, 2011-Ohio-4467, at ¶ 14, citing Shump v. First
Continental-Robinwood Assoc., 71 Ohio St.3d 414, 417 (1994). “In addition to
the traditional categories of invitee, licensee, and trespasser, the Ohio Supreme
Court has included the category of social guest.” Howze v. Carter, 9th Dist.
Summit No. 24688, 2009-Ohio-5463, ¶ 18, citing Scheibel v. Lipton, 156 Ohio St.
308, 329 (1951). “A social guest is someone the owner or occupier of land invites
-9- Case No. 1-15-39
onto the property for the purpose of social interaction.” Id., citing Scheibel at 329
and White v. Brinegar, 9th Dist. Summit No. 16429, 1994 WL 232692, *2 (June 1,
1994). “The duty owed to a social guest is less than that owed to a business
invitee, but more than that owed to a mere licensee.” Id., citing White at *2,
citing Zenisek v. Haycook, 3d Dist. Marion No. 9-93-39, 1994 WL 29861, *3 (Jan.
27, 1994). The parties do not dispute that James was a social guest—that is, the
Defendants invited James to their residence to play in their backyard while James’
parents went shopping.
{¶16} The attractive-nuisance doctrine does not apply to this case because
James was not a trespasser on the Defendants’ property. Kinnison, 2013-Ohio-
5715, at ¶ 16. In addressing the applicability of the attractive-nuisance doctrine in
a similar scenario to the facts presented in this case, the Tenth District Court of
Appeals noted:
[T]he doctrine is inapplicable here, first because the Kinnison
children were guests and not trespassers on the property. In
addition, the recreational-use doctrine acts as a complete bar to an
action for negligence because, as a matter of law, the courts have
held that, under these types of circumstances, there is no duty and
therefore no claim exists for negligence [since] the child’s
perception of the risk inherent in a recreational activity is not part of
the analysis under the recreational-use doctrine.
-10- Case No. 1-15-39
Id.
{¶17} Therefore, the Plaintiffs’ third assignment of error is further
overruled because James was not a trespasser and negligence cannot be
established under the attractive-nuisance doctrine.
{¶18} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
ROGERS, P.J. and SHAW, J., concur.
/jlr
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