[Cite as Lepkowski v. Wild Wings Camp & Boat-O-Minimum Water Slip Condominium Owners' Assn., 2024- Ohio-5625.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
Frank Lepkowski, Jr. Court of Appeals No. OT-24-002
Appellant Trial Court No. 20220CVH0050
v.
Wild Wings Camp and Boat-O-Minimum DECISION AND JUDGMENT Water Slip Condominium Owners' Association, et al. Decided: November 27, 2024
Appellees
*****
Michael J. Zychowicz, for appellant.
Brian T. Winchester and Taylor K. Dennon, for appellee, Wild Wings, Inc.
Robert J. Bahret and Stephen F. House, for appellee, DLF Enterprises, LLC.
***** SULEK, J.
{¶ 1} Appellant, Frank Lepkowski, Jr., appeals the Ottawa County Court of
Common Pleas’ December 19, 2023 and January 4, 2024 judgments granting summary
judgment to appellees, DLF Enterprises, LLC and Wild Wings, Inc., on his premises liability claim. Because Lepkowski failed to set forth a triable issue of fact, the trial
court’s judgments are affirmed.
I. Facts and Procedural History
{¶ 2} In August 2019, Lepkowski docked his boat at Wild Wings Marina in Oak
Harbor, Ohio, after renting dock space. In 2020, he decided to dock his boat at a
different location in the marina and rented a dock from an individual whose ownership
interest in Wild Wings Camp and Boat-O-Minium Water Slip Condominiums included a
dock space in Wild Wings Marina. Wild Wings leased the marina’s boat launch ramps to
DLF. DLF, in turn, was responsible for the maintenance and repair of the ramps and
collected a fee for their use.
{¶ 3} The boat launch area has two ramps, the north and the south ramp. Each
ramp consists of five floating-dock sections, made mostly of wood with metal couplings
and flotation tubes underneath. The ramps are designed to rise and fall with the water
level. On each ramp, the first float is attached directly to the second float and the second
and third floats are directly attached. The third and fourth floats are attached by a center
piling with metal rings that fit over the piling; the piling’s location results in a six-to-
eight-inch gap between the floats. Finally, the fourth and fifth floats are attached by
pilings located at the periphery. A set of steel piles or poles in the waterway separates the
two ramps.
{¶ 4} During the 2019 and 2020 boating seasons, Lepkowski used the ramps a
total of four times. When Lepkowski launched his boat in April 2020, he believed that he
2. used the right, or north, boat ramp. He stated that he had not previously observed the gap
between floats three and four. Lepkowski acknowledged that the north and south ramps
were identical.
{¶ 5} On June 13, 2020, Lepkowski and his son, Frank, Jr., took the boat out of the
water for several hours to install various electronic upgrades. Lepkowski could not recall
which ramp they used to retrieve the boat. While re-launching the boat on the north ramp
later that day, Lepkowski had two lines attached to the boat and walked it along the ramp
while his son operated the winch at the front of the boat, easing it into the water.
Lepkowski stated that there was a strong wind and he maintained a close, controlled grip
on the lines while stepping sideways to prevent the boat from drifting into the pilings in
the waterway. As he walked along the boat, he stepped into the gap between the third
and fourth floating dock sections, cutting his leg on exposed metal. Lepkowski agreed
that had he been looking down and to the right he “would probably see the gap,” and he
acknowledged the gap’s visibility in various exhibit photographs.
{¶ 6} During the 2020 boating season, Lepkowski did not pay a fee to DLF to
launch his boat. He believed that the dock space rental covered the launch fees.
Lepkowski acknowledged that “transient” boaters were required to pay a launch fee and
that there was a drop box for payment at the nearby gas station.
{¶ 7} Lepkowski’s son, Frank Jr., assisted with launching and removing his
father’s boat at the Wild Wings Marina in 2019 and 2020. Frank Jr. did not observe the
gap between the third and fourth floating dock sections prior to the accident.
3. {¶ 8} On March 10, 2022, Lepkowski commenced this action alleging that DLF
and Wild Wings1 were negligent by failing to keep the premises reasonably safe for
business invitees, failing to “prevent, remove, or warn against hazards” the on the
property, and failing to warn Lepkowski of a “latent hidden danger.” Lepkowski claimed
long-term physical impairment and pain and suffering due to DLF and Wild Wings’
breach of duty.
{¶ 9} DLF and Wild Wings each filed motions for summary judgment, claiming
they had no legal duty to protect or warn Lepkowski of an open and obvious hazard, that
there were no attendant circumstances negating the open and obvious status, and that they
were entitled to immunity based on Lepkowski’s recreational user status. Both motions
relied on Lepkowski’s deposition testimony.
{¶ 10} Lepkowski opposed the motions asserting that issues of fact remained
whether the gap was open and obvious. He contested the recreational user arguments by
stating that the launch ramps were not open to the public. He also attached and relied
upon the marine expert affidavit of Arthur Faherty, who opined that a reasonable person
tending boat lines would not observe the gap between the docks. Faherty concluded that
the gap caused by the piling between the third and fourth floating docks failed to comply
with floating equipment planking and spacing standards.
Defendant Wild Wings Camp and Boat-O-Minium Water Slip Condominium Owners’ 1
Association was voluntarily dismissed from the action on June 27, 2023.
4. {¶ 11} The trial court granted the motions for summary judgment finding “if the
court determined that Lepkowski was a recreational user of the ramp, [DLF and Wild
Wings] would be immune from liability; however, even if the court determined that
Lepkowski was a business invitee, the gap between the docks was open and obvious and
there were no attendant circumstances present which would present an exception to the
open and obvious doctrine.” This appeal followed.
II. Assignments of Error
{¶ 12} Lepkowski presents three assignments of error:
1. The trial court erred when it concluded on the summary judgment record that the hazardous gap between two floating dock sections that Appellant inadvertently stepped into was “open and obvious” as a matter of law, and that Appellees therefore owed Appellant no duty.
2. The trial court erred when it concluded on the summary judgment record that the “attendant circumstances” exception to the “open and obvious” doctrine was inapt in this case as a matter of law.
3. The trial court erred to the extent it concluded on the summary judgment record that Appellant was a “recreational user” of Appellees’ boat ramp and floating dock as a matter of law, and that Appellees therefore were immune from liability for Appellant’s injuries.
III. Analysis
A. Summary Judgment Standard
{¶ 13} An appellate court reviews the grant or denial of a motion for summary
judgment de novo, applying the same standard as the trial court. Bliss v. Johns Manville,
2022-Ohio-4366, ¶ 12. Under Civ.R. 56(C), a trial court shall grant summary judgment
only where (1) no genuine issue of material fact remains to be litigated, (2) the moving
5. party is entitled to judgment as a matter of law, and (3) viewing the evidence most
strongly in favor of the nonmoving party, reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party.
{¶ 14} “A party seeking summary judgment must specifically delineate the basis
upon which the motion is brought and identify those portions of the record that
demonstrate the absence of a genuine issue of material fact.” King v. Buildtech Ltd.
Constr. Dev., 2023-Ohio-1092, ¶ 23 (6th Dist.), citing Dresher v. Burt, 75 Ohio St.3d
280, 293 (1996); Mitseff v. Wheeler, 38 Ohio St.3d 112, (1988), syllabus. “When a
properly supported motion for summary judgment is made, an adverse party may not rest
on mere allegations or denials in the pleadings, but must respond with specific facts
showing that there is a genuine issue of material fact.” Id., citing Civ.R. 56 (E) and Riley
v. Montgomery, 11 Ohio St.3d 75, 79 (1984). “A ‘material’ fact is one that would affect
the outcome of the suit under the applicable and substantive law.” Id., citing Russell v.
Interim Personnel, Inc., 135 Ohio App.3d 301, 304 (6th Dist. 1999). (Additional citations
omitted.)
B. The gap between the dock sections was open and obvious.
{¶ 15} In a negligence action, a plaintiff must establish the existence of a duty, a
breach of that duty, and damages proximately resulting from the breach of the duty.
Caruso v. Erie Shoreline Properties, LLC, 2018-Ohio-1659, ¶ 7 (6th Dist.), citing
Mussivand v. David, 45 Ohio St.3d 314, 318 (1989). Premises liability is a form of
negligence where the “duty that an owner or occupier of premises owes to one who is
6. injured on those premises is governed by the relationship between the parties.” Gilliam v.
Rucki, 2023-Ohio-1413, ¶ 10 (6th Dist.), citing Light v. Ohio University, 28 Ohio St.3d
66, 67 (1986). The relationship falls into the categories of invitee, licensee, or trespasser.
Id., quoting Turner v. Cathedral Ministries, 2015-Ohio-633, ¶ 10 (6th Dist.). An invitee
is a person rightfully on the premises for a purpose beneficial to the owner. Hammer v.
McKinnis, 2004-Ohio-7158, ¶ 7 (6th Dist.). A licensee is permitted on the premises for
his own pleasure or benefit. Id. Finally, a trespasser enters a property for his own benefit
or pleasure and without express of implied permission. Id.
{¶ 16} A premises owner’s duty to an invitee is to use “‘ordinary care in
maintaining the premises in a reasonably safe condition and has the duty to warn its
invitees of latent or hidden dangers.’” Hill v. At Home Stores, LLC, 2023-Ohio-2798, ¶
32 (6th Dist.), quoting Clark v. BP Oil, 2005-Ohio-1383, ¶ 10 (6th Dist.). Conversely, a
premises owner or occupier has no duty to warn an invitee of dangers or defects that are
open and obvious because the open and obvious nature “serves as a warning to the invitee
and absolves the landowner/occupier of any duty to protect the plaintiff.” Rice v. Kroger,
2020-Ohio-2654, ¶ 7 (6th Dist.), citing Lang v. Holly Hill Motel, Inc., 2009-Ohio-2496, ¶
11. A danger is considered open and obvious “‘when it is in plain view and readily
discoverable upon ordinary inspection.’” Id., quoting Miller v. First Internatl. Fid. &
Trust Bldg., Ltd., 2009-Ohio-6677, ¶ 68 (6th Dist.); Gilliam at ¶ 20.
“The question of whether a particular danger is open and obvious is answered objectively, without regard to the injured plaintiff. Accordingly, the open-and-obvious test ‘properly considers the nature of the dangerous condition itself, as opposed to the nature of the plaintiff's conduct in
7. encountering it.’” Hissong v. Miller, 186 Ohio App.3d 345, 2010–Ohio– 961, 927 N.E.2d 1161, ¶ 8, quoting Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 13.
Caruso at ¶ 10. “While an invitee is expected to be aware of their surroundings and look
down to avoid a danger . . . the open and obvious standard is not so strict as to require a
person to constantly be looking downward for dangers under all circumstances.”
(Citations omitted.) Rice at ¶ 7 (6th Dist.).
{¶ 17} Lepkowski claims that he was an invitee and that issues of fact precluded
the trial court’s finding that the gap was open and obvious.2 He asserts that neither he nor
his son observed the gap prior to his fall, that the floating docks appear contiguous upon
approach, that other marinas cover gaps between dock sections with a flap or bridge
material, that he had not previously navigated the gap, and that he was reasonably
attending to his boat during its launch.
{¶ 18} Conversely, Wild Wings and DLF assert that Lepkowski and his son’s
subjective belief is not determinative as it is an objective standard that is used in
determining whether a hazard is open and obvious, that the argument that the gap is not
noticeable from a distance does not negate the fact that it was observable when
Lepkowski had the ability to avoid it, and that Lepkowski and his son testified that they
had been on the docks, including the north dock, a number of times prior to the accident.
2 Though the parties dispute whether Lepkowski was an invitee or trespasser, our analysis, assumes the more stringent, invitee standard applies.
8. {¶ 19} Lepkowski relies on Rice v. Kroger, supra, Ellington v. JCTH Holdings,
2015-Ohio-840 (7th Dist.), and Jacobsen v. Coon Restoration & Sealants, Inc., 2011-
Ohio-3563 (5th Dist.) in support of his argument that the open and obvious doctrine did
not require him to be constantly look down under all circumstances.
{¶ 20} In Rice, a store patron, distracted by reading a sales flyer she received upon
entering the store, tripped and fell over an empty pallet in the produce department. This
court found an issue of fact regarding whether the location the empty pallet caused it to
be hidden from view until the store patron was nearly upon it and whether it would be
readily apparent to a reasonable patron. Id. at ¶ 15.
{¶ 21} In Ellington, 2015-Ohio-840 (7th Dist.), the appellate court concluded that
issues of fact remained as to whether a hole in a parking lot was open and obvious. The
court noted that the trial court found that the hole was subjectively open and obvious to
the plaintiff but failed to determine whether the hole was objectively open and obvious.
Id. at ¶ 24. Additionally, the parties provided no clear representation of the size of the
hole. Id. at ¶ 26. The court further noted that the lack of evidence as to how long the
hole had been in the parking lot and whether the plaintiff had previously traversed that
area of the lot. Id. at ¶ 28.
{¶ 22} And in Jacobsen v. Coon Restoration & Sealants, Inc., 2011-Ohio-3563
(5th Dist.), the court of appeals determined there was a genuine issue of fact regarding
whether a metal stump in a parking lot was open and obvious and whether the attendant
9. circumstance—a patron carrying a pizza box blocking the view of her feet— would have
expected and discovered the danger.” Id. at ¶ 23, 26.
{¶ 23} On review, the facts at issue are distinguishable. Unlike Rice, there is no
evidence that the gap was obscured. Unlike Ellington, the parties provided ample
evidence, including numerous photographs, regarding the gap’s attributes. In addition,
Lepkowski admitted to previously traversing the north and south docks, which he stated
were identical. Finally, as discussed below, Jacobsen’s conclusion that a patron’s act of
carrying a pizza box is an attendant circumstances conflicts with the common definition
of attendant circumstance. See Jacobsen at ¶ 32 (Wise, J., dissenting) (stating that
attendant circumstances “do not include the individual’s activity at the moment of the
fall, unless the individuals’ attention was diverted by an unusual circumstance of the
property owner’s making.”).
{¶ 24} The facts in this case are more analogous to those in Caruso, 2018-Ohio-
1659 (6th Dist.), where the plaintiff was injured after falling over a railroad tie while
playing miniature golf. The trial court granted summary judgment, finding that the tie
was open and obvious. Affirming the judgment, this court stated:
“What is material to the open-and-obvious test is whether the danger is observable, which means it ‘is discoverable or discernible by one who is acting with ordinary care under the circumstances.’” (Citations omitted). Hissong [v. Miller, 2010-Ohio-961] at ¶ 11. “[T]he question is answered, and the open-and-obvious nature of the danger is established, if the plaintiff admits that if she had looked down she would have seen the danger.” Id. at ¶ 12.
10. Id. at ¶ 11. This court then found that appellant’s admission that had she looked she
would have seen the tie, that a reasonable person using ordinary care would have
discovered the tie, and that she had previously played the course and safely navigated any
obstacles supported the conclusion that the tie was open and obvious. Id. at ¶ 12-13; see
also Isbell v. Dollar Gen., 2019-Ohio-1560, ¶ 11-12 (6th Dist.) (A reasonable person
would have seen the spilled container of sour cream.).
{¶ 25} Here, Lepkowski gave the following testimony regarding the observability
of the gap:
Q: If you were looking down and to your right before you stepped to your right, do you know whether or not you would have been able to see this opening? MR ZYCHOWICZ: Objection calls for speculation. A: I can speculate that if I was looking down and to my right, I would probably see that gap. Q: On the four occasions prior to this incident when you were on one or the other ramps, did you have to step over that opening? A: I’m sure I did, but I don’t remember it. Q: If you had stepped over the opening, would you have seen it? A: I don’t remember. Q: Do you believe it’s a visible condition? A: This picture right there, it’s visible. When you’re doing a job where there’s multiple things that are at hand, that’s the last thing from your mind, is this a safe ramping dock. Q: You had no prior issues with either dock before June 13, 2020 in the afternoon, correct? A: Right, maybe it was just luck that I didn’t.
{¶ 26} As in Caruso, Lepkowski had been on the dock multiple times prior to the
accident and admitted that had he been looking he would have seen the gap. The
photographs clearly depict the gap between the third and fourth floating docks and the
center piling which extends several feet above the dock. Lepkowski’s expert admits this
11. “significant change” in the configuration of the floating docks. Accordingly, the gap was
an open and obvious condition of the dock relieving DLF and Wild Wings of any duty to
warn its invitees. Lepkowski’s first assignment of error is not well-taken.
C. The attendant circumstances exception does not apply.
{¶ 27} Lepkowski’s second assignment of error alternatively contends that the
application of the attendant circumstance exception creates an issue of fact because
windy conditions diverted his focus and he feared that his boat would drift into the center
of the waterway and hit the concrete pilings.
{¶ 28} An attendant circumstance may create an issue of fact as to whether a
danger is open and obvious. Herbst v. Kroger Co., 2009-Ohio-2767, ¶ 9 (6th Dist.) An
attendant circumstances is generally defined as “‘a factor that contributes to the fall and is
beyond the injured person’s control. The phrase refers to all circumstances surrounding
the event, such as time and place, the environment or background of the event, and the
conditions normally existing that would unreasonably increase the normal risk of a
harmful result of the event.’” Lowe v. Loc. Union No. 14 U.A.W., 2020-Ohio-703, ¶ 37
(6th Dist.), quoting Jackson v. Pike Cty. Bd. of Commrs., 2010-Ohio-4875, ¶ 21 (4th
Dist.). “‘[A]n attendant circumstance must be “so abnormal that it unreasonably
increased the normal risk of a harmful result or reduced the degree of care an ordinary
person would exercise.”’” (Citations omitted.) Coldren v. Northview Shopping Plaza,
LLC, 2023-Ohio-1703, ¶ 30 (3d Dist.). “Ordinarily, ‘the attendant circumstance must be
“an unusual circumstance of the property owner’s making.”’” Lowe at ¶ 37, quoting
12. Hallar v. Meijer, Inc., 2012-Ohio-670, ¶ 10 (10th Dist.), quoting McConnell v. Margello,
2007-Ohio-4860, ¶ 17 (10th Dist.); see also Stinson v. Kirk, 2007-Ohio-3465, ¶ 25 (6th
Dist.); Hammond v. Lutz, 2022-Ohio-3542, ¶ 13 (1st. Dist.); Lang, 2007-Ohio-3898, at ¶
27 (4th Dist.).
{¶ 29} Lepkowski contends that the wind diverted his attention. Wind is not a
circumstance of a property owner’s making. See Meyer v. Dayton, 2016-Ohio-8080, ¶ 20
(2d Dist.) (The weather when the appellant parked versus when she returned was not an
attendant circumstances.) Lepkowski, however, also admitted that prior to the accident
he had his boat “under control” as he walked down the dock and he was “looking down at
[his] feet to make sure [he] was not going to step off the edge of the dock.” His care to
watch his step belies his argument that the windy conditions completely undermined his
ability to observe the gap. Because Lepkowski failed to establish a genuine issue of
material fact regarding the existence of an attendant circumstance, his second assignment
of error is not well-taken.
D. Recreational User Status
{¶ 30} Lepkowski’s third assignment of error asserts error in the trial court’s
finding that Lepkowski’s status as “recreational user” of the boat ramp. Because we have
already determined that the court had a sufficient basis to grant summary judgment due to
the open and obvious nature of the gap, we decline to address the issue. See App.R.
12(A)(1)(c). Lepkowksi’s third assignment of error is moot.
13. IV. Conclusion
{¶ 31} Based on the foregoing, Lepkowski failed to establish a genuine issue of
material facts supporting his premises liability claim. The judgments of the Ottawa
County Court of Common Pleas are affirmed. Lepkowski is ordered to pay the costs of
this appeal pursuant to App.R. 24.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Charles E. Sulek, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
14.