[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

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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).



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       {¶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.

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       {¶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


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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

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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.



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         {¶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

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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

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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.

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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.

                                                               Judgment Affirmed

ROGERS, P.J. and SHAW, J., concur.

/jlr




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