[Cite as Fuller v. Anchor Pointe Marina, 2017-Ohio-8921.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Scott T. Fuller, et al.                                     Court of Appeals No. L-17-1051

        Appellants                                          Trial Court No. CI0201502807

v.

Anchor Pointe Marina                                        DECISION AND JUDGMENT

        Appellee                                            Decided: December 8, 2017

                                                 *****

        Matthew O. Hutchinson, for appellants.

        Gene Canestraro and Stephen C. Roach, for appellee.

                                                 *****

        PIETRYKOWSKI, J.

        {¶ 1} This is an appeal from the judgment of the Lucas County Court of Common

Pleas, granting summary judgment in favor of appellee, Anchor Pointe Marina, on

appellants’, Scott and Doll Fuller, claims for damage to their boat, loss of value of their

dock space, and personal injury. For the reasons that follow, we affirm, in part, and

reverse, in part.
                            I. Facts and Procedural Background

          {¶ 2} The claims in this case arise from appellants’ ownership of a boat and dock

space at appellee’s marina. In October 2012, appellants and appellee entered into an

agreement for appellee to store their boat over the winter. During that winter, water froze

inside of the boat causing extensive damage, and the boat was deemed a total loss. The

damage resulted from the fact that the drain plugs were not pulled prior to the boat being

stored.

          {¶ 3} Relative to the failure to remove the drain plugs, the terms of the “Winter

Boat Storage Worksheet” specifically state in two separate places that “Removal of Drain

Plugs & Batteries are the boat owner’s responsibility,” and “[Appellee] is not responsible

for any damaged, lost, or stolen items, or removal of batteries and drain plugs.” Further,

the “Winter Boat Storage Agreement” expressly provides that “This agreement is for

rental of ground space and is not a bailment agreement. Therefore, [appellee] has no

responsibility for damage to the boat and owner agrees to provide his own insurance on

the boat.”

          {¶ 4} The parties originally agreed as indicated on the “Winter Boat Storage

Worksheet” that the boat was to be removed from the water on October 29, 2012. Mr.

Fuller was present that day to remove the drain plugs and battery from his boat.

However, he was informed that the boat could not be removed at that time because of the

weather. Mr. Fuller advised appellee that he was unable to return to have the boat

removed because of his work schedule. He testified in his deposition that he was told by




2.
Donna, an office worker who has since passed away, to leave the boat near the sling, and

when appellee resumed pulling boats from the water they would pull his. After he tied

his boat near the sling, Mr. Fuller reminded Donna that his boat needed to be plugged in

so that the batteries would not run out of power causing his boat to sink. He paid his bill

at the time, and was told by Donna that “We’ll take care of it.”

       {¶ 5} The next day, Mr. Fuller called appellee to see if his boat had been pulled

from the water, and he was told that it had not been. The day after that, Mr. Fuller called

again, and again was told that the weather was preventing the removal of any boats. Mr.

Fuller testified that two days later he called for a third time, asking if his boat had been

pulled. He stated that Donna told him, “Yep, we took care of everything, we got it

winterized, shored, everything’s taken care of. You don’t have to worry about nothing.”

       {¶ 6} Mr. Fuller testified that he never specifically said anything to Donna about

removing the drain plugs. However, he stated that when he left the boat at the sling, he

spoke with a mechanic who was there, and opened up his boat and showed the mechanic

where the drain plugs were, and told the mechanic to take care of it. Mr. Fuller testified

that the mechanic replied “Yep, no problem.”

       {¶ 7} After the boat was deemed a total loss by appellants’ insurance company,

appellants purchased a new boat. The new boat was larger than the previous one, and

would not fit in appellants’ dock space. Appellants requested that they be assigned a

larger dock space, but appellee refused. Appellants ultimately were directed to a docking

space along the shoreline wall.




3.
       {¶ 8} Mr. Fuller testified that after he had been docked along the wall for one or

two weeks he came to do some work on his boat on June 5, 2013. It was a warm, sunny

day, and Mr. Fuller had made several trips from his truck onto his boat carrying the tools

and items that he would need. He testified that on his third or fourth time getting onto the

boat he tripped and fell over a metal conduit that was attached to the shoreline wall. Mr.

Fuller admitted that nothing was obstructing his view of the conduit, and he knew that the

conduit was there. As a result of his fall, Mr. Fuller broke his right shoulder.

       {¶ 9} On May 28, 2015, appellants filed their three-count complaint, asserting

claims for damage to the boat, loss of value of the dock space, and personal injury.

Appellee answered and filed a counterclaim for past due assessments related to

appellants’ ownership of the dock space.

       {¶ 10} On July 20, 2015, appellee moved for summary judgment on appellants’

claims. Appellee argued that it was not liable for the damages to appellants’ boat because

the “Winter Boat Storage Agreement” expressly stated that it was not a bailment

agreement, disclaimed any liability for damage to the boat, and contained a release of all

claims and damages. Further, appellee argued that it was not liable for appellants’ claim

for the loss of value of the dock space because appellants chose to purchase a larger boat

that did not fit, and thus any alleged wrongful conduct on the part of appellee was not a

proximate cause of appellants’ damages. Finally, appellee argued that it was entitled to

summary judgment on appellants’ personal injury claim because the hazard that caused

the fall was a known condition to Mr. Fuller, and it was open and obvious.




4.
       {¶ 11} Appellants responded to the motion for summary judgment, and argued that

a bailment agreement arose and superseded the “Winter Boat Storage Agreement” when

appellee was unable to remove the boat from the water on October 29, 2012, and told Mr.

Fuller that “it would take care of it” and haul it out without his presence. As to the claim

for loss of value of the dock space, consistent with their complaint, appellants argued that

appellee drove down the resale value of appellants’ dock space by subsequently offering

free dock space to anyone who was willing to pay an $800 assessment fee for five years.

Finally, regarding the personal injury claim, appellants argued that either appellee was

negligent per se because the conduit violated the building code, the placement of the

conduit was willful and wanton misconduct, or the hazard was not open and obvious

because it was in a location where a person’s focus would be diverted towards stepping

onto the boat.

       {¶ 12} Appellee replied, and, inter alia, argued that the statements of the deceased

office worker that appellants relied on to create the bailment agreement were

inadmissible hearsay because they did not fall under Evid.R. 804(B)(5) governing

statements by a deceased person.

       {¶ 13} On August 25, 2016, the trial court granted appellee’s motion for summary

judgment. As to the count for damage to the boat, the trial court reasoned that the

“Winter Boat Storage Agreement” disclaimed any liability on the part of appellee, and

expressly did not create a bailment agreement. Further, the court found that the

exculpatory clause was not unenforceable as against public policy. Regarding appellants’




5.
assertion of a subsequent bailment agreement, the trial court found that there was no

admissible evidence to support appellants’ claim because the statements of the now-

deceased office worker and the unidentified mechanic were inadmissible hearsay.

       {¶ 14} The trial court further awarded summary judgment in favor of appellee on

appellants’ claim for the loss of the value of the dock, finding that, in addition to Mr.

Fuller being the sole cause of his inability to use the dock space, the complaint failed to

state a claim. The court noted, in particular, that the complaint alleges that appellants

purchased the dock space for $3,000, but appellants admit that appellee is now offering

pier spaces for $4,000 ($800 assessment per year for five years). Thus, the court

concluded that appellants were not precluded from marketing their space at a profit.

       {¶ 15} Finally, in regards to appellants’ claim for personal injury, the trial court

found that appellee did not owe a duty to Mr. Fuller because Mr. Fuller had actual

knowledge of the risk, and because the condition was open and obvious.

       {¶ 16} Appellants appealed the trial court’s August 25, 2016 decision. However,

because the trial court failed to resolve appellee’s counterclaim for past due assessments,

we remanded the matter to the trial court as it was not a final, appealable order. On

February 6, 2017, the trial court entered its judgment granting summary judgment in

favor of appellee on its counterclaim.

                                 II. Assignments of Error

       {¶ 17} Appellants have timely appealed the trial court’s judgment, and now assert

four assignments of error for our review:




6.
              1. The trial court erred in finding that the Storage Agreement and

       Worksheet excused Anchor Pointe of liability for its failure to remove the

       drain plugs from Mr. Fuller’s boat.

              2. The trial court erred in excluding the statements made by Ms.

       Huth and the mechanic as inadmissible hearsay.

              3. The trial court erred in finding that Mr. Fuller had failed to state a

       claim as to the loss of value of his boat condominium, which was caused by

       Anchor Pointe when it started to give away boat condominiums to

       prospective purchasers.

              4. The trial court erred in finding that there was no genuine issue of

       material fact as to whether Anchor Pointe had established the open and

       obvious defense.

                                        III. Analysis

       {¶ 18} We review the grant of a motion for summary judgment de novo, applying

the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d

127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d

102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate

where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled

to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion,

and viewing the evidence most strongly in favor of the nonmoving party, that conclusion




7.
is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio

St.2d 64, 66, 375 N.E.2d 46 (1978).

                            A. Claim for Damage to the Boat

       {¶ 19} Because appellants’ first and second assignments of error both pertain to

their claim for damage to the boat, we will address them together. In their first

assignment of error, appellants argue that the exculpatory clauses in the “Winter Boat

Storage Agreement” do not apply to the situation because the damage occurred not from

the storage of the boat, but rather appellee’s failure to remove the drain plugs from the

boat when it hauled it out of the water. Further, as to the “Winter Boat Storage

Worksheet,” appellants argue that either the disclaimers of liability contained therein are

unconscionable under the present circumstances, or appellee, through its agents, agreed to

modify the terms of the “Winter Boat Storage Worksheet” to accept responsibility for

removing the drain plugs.

       {¶ 20} We initially note that, in the trial court, appellants argued that the

exculpatory clauses were unenforceable as against public policy, not because the clauses

were unconscionable. Regardless, we agree with the trial court’s conclusion that the

disclaimer of liability contained in the “Winter Boat Storage Worksheet” is enforceable.

“As a general proposition, attempts to excuse liability for negligence by contract are

disfavored in the law. This is especially true in the case of bailments made in the course

of a general dealing with the public. Nonetheless, absent important public policy

concerns, unconscionability, or vague and ambiguous terms, limiting or exculpatory




8.
provisions will be upheld.” Collins v. Click Camera & Video, 86 Ohio App.3d 826, 832,

621 N.E.2d 1294 (2d Dist.1993). “A determination of whether a written contract is

unconscionable is an issue of law.” Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio

St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 34. “Unconscionability includes both an

absence of meaningful choice on the part of one of the parties together with contract

terms which are unreasonably favorable to the other party.” (Citations omitted.) Id. at

¶ 33. “The party asserting unconscionability of a contract bears the burden of proving

that the agreement is both procedurally and substantively unconscionable.” Id.

       {¶ 21} Here, appellants have not provided any evidence or arguments that the

agreement was procedurally unconscionable. Instead, they argue that the disclaimer of

liability is unconscionable under the facts of this case where Mr. Fuller was present and

ready to remove the drain plugs and battery as agreed, but appellee refused to perform its

obligation of pulling the boat out of the water. Thus, while appellants have failed to

satisfy their burden of showing that the agreement was unconscionable, they do raise an

issue regarding whether the parties either modified the agreement, or entered into a new

agreement.

       {¶ 22} Appellants argue that the agreement was modified when appellee refused to

pull the boat out of the water and instructed Mr. Fuller to leave the boat at the sling, with

Donna stating “We’ll take care of it,” and the unidentified mechanic replying that it was

“no problem” to take out the drain plugs. The trial court discounted appellants’

arguments, finding that the statements from Donna and the mechanic were inadmissible




9.
hearsay under Evid.R. 804(B)(5). In their second assignment of error, appellants contend

that the trial court erred in excluding the out of court statements because they were not

hearsay, but rather admissions of a party opponent under Evid.R. 801(D)(2), which

provides “A statement is not hearsay if: * * * The statement is offered against a party

and is * * * (d) a statement by the party’s agent or servant concerning a matter within the

scope of the agency or employment, made during the existence of the relationship.”

       {¶ 23} Appellee, in opposition, argues that Evid.R. 801(D)(2)(d) does not apply

because the statements were not made within the scope of the employment.1 In support,

appellee relies on an affidavit from Eric Van Duzen, Sr., an officer and member of the

board of directors of appellee, in which Van Duzen states that no employee has ever been

authorized to agree to remove drain plugs from boats stored at the marina. However, the

issue of whether an employee was authorized to bind the company in a contractual

agreement is separate from the issue of whether the statement was made within the scope

of his or her employment for purposes of determining whether the statement was hearsay

under Evid.R. 801(D)(2)(d). Here, the purported statements were made by employees of

appellee, while they were acting on behalf of appellee, and regarding a transaction with

one of appellee’s customers. Therefore, we find that the out of court statements of Donna



1
  Appellee also contends that appellants failed to raise in the trial court the argument that
the out of court statements were admissions of a party opponent, and therefore they
cannot raise the issue for the first time on appeal. However, appellee did not challenge
the admissibility of the statements until it filed its reply brief in support of its motion for
summary judgment.




10.
and the unidentified mechanic are not hearsay, and the trial court erred in excluding those

statements.

       {¶ 24} Considering those statements, we now turn to the issue of whether the

parties agreed to modify the “Winter Boat Storage Worksheet” to provide for appellee

accepting responsibility to remove the drain plugs from the boat. Appellee contends that

Donna and the unidentified mechanic lacked authority to so bind the company.

Appellants, on the other hand, argue that the employees, while perhaps not possessing

actual authority, nonetheless possessed implied or apparent authority.

              In order for a principal to be bound by the acts of his agent under the

       theory of apparent agency, evidence must affirmatively show: (1) that the

       principal held the agent out to the public as possessing sufficient authority

       to embrace the particular act in question, or knowingly permitted him to act

       as having such authority, and (2) that the person dealing with the agent

       knew of those facts and acting in good faith had reason to believe and did

       believe that the agent possessed the necessary authority.

Master Consol. Corp. v. BancOhio Natl. Bank, 61 Ohio St.3d 570, 575 N.E.2d 817

(1991), syllabus.

       {¶ 25} “The existence of an agency relationship is a question of fact.” Dickinson

v. Charter Oaks Tree & Landscaping Co., 10th Dist. Franklin No. 02AP-981, 2003-Ohio-

2055, ¶ 22, citing McSweeney v. Jackson, 117 Ohio App.3d 623, 631, 691 N.E.2d 303

(4th Dist.1996).




11.
         {¶ 26} Here, Mr. Fuller testified that Donna was the office worker for appellee,

and that “She took care of everything in the office.” Viewing this evidence in a light

most favorable to appellants, we find that it is sufficient to create a genuine issue of

material fact as to whether Donna had apparent authority to bind appellee to remove the

drain plugs. As testified to by Mr. Fuller, Donna was a long-tenured worker, who

handled all of the office matters. She was the person to whom he submitted his payment,

was the person who directed him to leave his boat at the sling, and was the apparent

contact person for removing the boat. From this evidence, a reasonable person could

conclude that appellee held Donna out as possessing sufficient authority, or knowingly

permitted her to act as though she had such authority, to agree to remove the boat at a

later date, and to remove the drain plugs without Mr. Fuller’s presence.

         {¶ 27} Likewise, we hold that a genuine issue of material fact exists regarding

whether the parties did in fact either create a new agreement or modify the existing one to

provide for appellee to assume responsibility for removal of the drain plugs, based on Mr.

Fuller’s testimony that Donna told him “We’ll take care of it,” and later confirming that,

“Yep, we took care of everything, we got it winterized, shored, everything’s taken care

of. You don’t have to worry about nothing.”

         {¶ 28} Therefore, we hold that the trial court erred in granting summary judgment

to appellee on appellants’ first count for damage to their boat.

         {¶ 29} Accordingly, appellants’ first and second assignments of error are well-

taken.




12.
                        B. Claim for Loss of Value of Dock Space

       {¶ 30} In their third assignment of error, appellants argue that the trial court erred

in granting summary judgment to appellee on their claim for loss of value of their dock

space. Appellants contend on appeal that a genuine issue of material fact exists whether

appellee owed a fiduciary duty to all of appellee’s boat condominium owners, including

appellants, to maintain the market for the dock spaces, which appellee breached when it

began to give away dock spaces if the new owner agreed to pay the $800 annual

assessment for five years.

       {¶ 31} In moving for summary judgment, appellee only argued that it was not the

proximate cause of appellants’ loss of value of the dock space, but rather the proximate

cause was appellants’ decision to purchase a boat that would not fit in their space.

Appellee, however, ignored appellants’ assertions in paragraphs 13 and 14 of the

complaint that “Scott Fuller’s old dock space is unmarketable since Anchor Pointe

Marina, after Scott’s dock purchased (sic) went into competition with its members by

offering free dock spaces for persons who agree to pay the annual $800 assessment fees

for five years. * * * Pursuant to such competition, Scott Fuller has lost the $3,000.00

investment he made in dock space C-22.” Thus, the alleged cause of the loss of value

was not appellants’ purchase of a new boat, but rather the conduct of appellee in

competing with its members. Therefore, as stated by appellants in their memorandum in

opposition, appellee has not provided any factual or legal argument to support or

demonstrate why it is entitled to summary judgment.




13.
       {¶ 32} Furthermore, the trial court, in its decision, determined that summary

judgment was appropriate because “while [Mr. Fuller] alleges he invested $3,000 in the

pier space, he also admits that Anchor Pointe is now offering pier spaces at the marina for

$4,000 ($800 per year for five years) to any persons interested. Thus, he admits that his

investment is less than what a new purchaser would have to pay – he does not appear to

be precluded from marketing his pier space at a profit.” However, the trial court’s

finding is not consistent with the allegation in the complaint that appellee gave dock

spaces away at no cost, as well as the allegation in the counterclaim that the “Declaration

of Condominium Ownership” provides that “each unit owner shall pay yearly or monthly

or special assessments to the defendant for the cost of maintenance, insurance, and other

common area expenses and assessments of the Association.” Thus, at the least, a genuine

issue of material fact exists whether every dock space owner, including the owner of

appellants’ dock space, must pay an assessment, with the net effect that appellee is giving

away for free that for which appellant paid $3,000.

       {¶ 33} Therefore, because appellee did not present any evidence demonstrating

that no genuine issue of material fact exists, nor articulate any relevant legal theory

explaining why appellants’ claim for loss of value of the dock space based on appellee’s

conduct in giving away dock spaces for free with a five-year commitment was untenable

as a matter of law, we hold that the trial court erred in granting summary judgment to

appellee.

       {¶ 34} Accordingly, appellants’ third assignment of error is well-taken.




14.
                              C. Claim for Personal Injury

       {¶ 35} Finally, in their fourth assignment of error, appellants argue that the trial

court erred in determining that the metal conduit was an open and obvious condition.

Relying on an expert affidavit submitted with their opposition to appellee’s motion for

summary judgment, appellants argue that a genuine issue of material fact existed whether

the act of getting onto and off of the boat was an attendant circumstance that would have

rendered the trip hazard caused by the metal conduit not open and obvious.

       {¶ 36} Initially, we note that the parties do not contest that Mr. Fuller was on

appellee’s premises as a business invitee. “A shopkeeper owes business invitees a duty

of ordinary care in maintaining the premises in a reasonably safe condition so that its

customers are not unnecessarily and unreasonably exposed to danger.” Paschal v. Rite

Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). “A shopkeeper is not,

however, an insurer of the customer’s safety.” Id. Thus, “a shopkeeper is under no duty

to protect business invitees from dangers ‘which are known to such invitee or are so

obvious and apparent to such invitee that he may reasonably be expected to discover

them and protect himself against them.” Id., quoting Sidle v. Humphrey, 13 Ohio St.2d

45, 233 N.E.2d 589 (1968), paragraph two of the syllabus.

       {¶ 37} Appellants focus on whether the hazard was open and obvious. However,

appellants do not address the fact that Mr. Fuller admitted that he knew the conduit was

there. Regardless of whether the hazard was open and obvious, because Mr. Fuller had

actual knowledge of it, appellee was under no duty to protect him from the danger. See




15.
Wicichowski v. Gladieux V. Enterprises, Inc., 54 Ohio App.3d 177, 179, 561 N.E.2d 1012

(6th Dist.1988) (where injured party tripped in a stairwell, “[B]ecause appellant had

knowledge of the condition of the step at least equal to that of appellee, appellee did not

breach any duty owed to appellant and, therefore, is not guilty of actionable negligence as

a matter of law.”). Further, “the plaintiff’s failure to avoid a known peril is not excused

by the fact that he ‘did not think,’ or ‘forgot.’” Raflo v. Losantiville Country Club, 34

Ohio St.2d 1, 3, 295 N.E.2d 202 (1973). Therefore, we hold that because appellee owed

no duty to protect Mr. Fuller from the trip hazard caused by the metal conduit, the trial

court did not err in granting summary judgment to appellee on appellants’ claim for

personal injury.

       {¶ 38} Accordingly, appellants’ fourth assignment of error is not well-taken.

                                      IV. Conclusion

       {¶ 39} For the foregoing reasons, we find that substantial justice has not been done

the parties complaining, and the judgment of the Lucas County Court of Common Pleas

is reversed, in part, and affirmed, in part. This matter is remanded to the trial court for

further proceedings consistent with this decision on appellants’ claims for damage to their

boat and loss of value of their dock space. Pursuant to App.R. 24, the costs of this appeal

are ordered to be shared evenly by the parties.


                                                                  Judgment reversed, in part,
                                                                       and affirmed, in part.




16.
                                                        Fuller v. Anchor Pointe Marina
                                                        C.A. No. L-17-1051




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




17.
