[Cite as Robertson v. St. Clare Commons, 2019-Ohio-3930.]




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


Rebecca A. Robertson, Executor of                           Court of Appeals No. WD-18-086
the Estate of John C. Voland
                                                            Trial Court No. 16 CV 484
        Appellant

v.

St. Clare Commons                                           DECISION AND JUDGMENT

        Appellee                                            Decided: September 27, 2019

                                                *****

        Marvin A. Robon, R. Ethan Davis and Zachary J. Murry,
        for appellant.

        Terrance K. Davis and Nicholas T. Stack, for appellee.

                                                *****

        OSOWIK, J.

        {¶ 1} This is an accelerated appeal from a November 6, 2018 judgment of the

Wood County Court of Common Pleas, granting summary judgment in favor of appellee,

Perrysburg skilled care nursing facility St. Clare Commons (“appellee”), and against
Rebecca Robertson (“appellant”), the executor of the estate of John Voland (“Voland”), a

former patient in appellee’s facility.

         {¶ 2} The decedent drowned in a pond located on the expansive facility grounds in

the course of travelling the grounds in his motorized wheelchair. Voland regularly

travelled the grounds and enjoyed the liberty afforded him to travel the spacious property.

It is unknown how this incident occurred. There were no witnesses to this lamentable

event.

         {¶ 3} Appellant’s negligence-based summary judgment filing was denied on the

basis of the applicability of the open and obvious doctrine, an affirmative defense to most

incidents occurring in connection to an open body of water.

         {¶ 4} The trial court found that there were no factors present which would operate

to preclude the open and obvious doctrine from applying to this event. Thus, the court

determined that the open and obvious doctrine applied and negated appellee from owing

any duty to Voland, from which liability could potentially arise against appellee for

Voland’s death. For the reasons set forth below, this court affirms the judgment of the

trial court.

         {¶ 5} Appellant sets forth the following assignment of error:

               I. The Trial Court committed reversible error by entering summary

         judgment in favor of the Defendant-Appellee.

         {¶ 6} The following undisputed facts are relevant to this appeal. On November 13,

2013, Voland voluntarily transferred his residency from another skilled care facility to




2.
appellee’s Perrysburg facility. It is undisputed, and was consistently affirmed by the

testimony of both family members and medical care providers, that despite Voland’s

advanced age, he remained cognitively sharp, alert, and functional.

       {¶ 7} The record reflects that Voland selected this specific facility in order to

enjoy the freedom offered by the peaceful 55-acre site, which included pathways, open

spaces, a pond, and views of nearby land formerly farmed by Voland.

       {¶ 8} Given Voland’s ability to independently operate an electric scooter, as

verified by an occupational therapy evaluation conducted by appellee, Voland routinely

availed himself of the opportunity to travel the grounds in his electric scooter.

       {¶ 9} Voland was often accompanied on these trips around the grounds by visiting

relatives. Voland sometimes rode his motorized scooter around the pond which underlies

this appeal. None of Voland’s relatives or medical providers expressed reservations on

any basis in connection to this activity.

       {¶ 10} Tragically, on the morning of August 21, 2014, Voland was traveling on

his electric scooter near the pond, and under unknown circumstances, fell into the pond

and drowned. On August 17, 2016, appellant filed a wrongful death claim premised on

appellee’s negligence in connection to Voland’s drowning death.

       {¶ 11} On November 6, 2018, the trial court granted summary judgment in favor

of appellee on the basis of an application of the open and obvious affirmative defense to

the negligence claim arising from the drowning death in an open body of water by a




3.
cognitively sound, adult male capable of independent mobility with the use of a

motorized device.

       {¶ 12} In the disputed summary judgment ruling, the trial court held in pertinent

part, in response to assertions that the open and obvious doctrine should not apply, “This

is a rather tortuous argument that fails in light of the fact of Mr. Voland residing at St.

Clare Commons for many months freely roaming the campus. Mr. Voland’s children

never raised any concerns * * * None of the medical professionals at St. Clare Commons

entered any notes in Mr. Voland’s records raising any concerns about Mr. Voland’s

mental and physical abilities.”

       {¶ 13} The trial court subsequently determined that, “In perceiving dangers and in

taking precautions, Mr. Voland, even though he was residing in skilled nursing facility,

possessed the same abilities as an adult residing in his own home * * * the court finds

that the pond was an open and obvious danger and that Mr. Voland was of sound mind

and body to perceive and protect himself from the danger of the pond.” This appeal

ensued.

       {¶ 14} In the sole assignment of error, appellant alleges that the trial court erred in

its summary judgment ruling against appellee based upon an application of the open and

obvious doctrine to this negligence case. We do not concur.

       {¶ 15} We note at the outset that appellate court review of a disputed summary

judgment ruling is performed utilizing the same de novo standard as that used by the trial




4.
court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 572 N.E.2d 198 (9th

Dist.1989).

       {¶ 16} Summary judgment will be granted when there remains no genuine issue of

material fact and, when considering the evidence most strongly in favor of the

nonmoving party, reasonable minds can only conclude that the moving party is entitled to

judgment as a matter of law. Civ.R. 56(C).

       {¶ 17} In the instant case, appellant’s complaint was premised upon the alleged

negligence of appellee proximately causing Voland’s drowning death. In other words,

appellant asserted that appellee owed Voland a heightened duty of care in connection to

the risks of coming into proximity to an open body of water.

       {¶ 18} In order to establish an actionable negligence claim, a plaintiff must

demonstrate the existence of a duty, a breach of that duty, and an injury proximately

caused by the breach. Watkins v. Scioto Downs Inc., 10th Dist. Franklin No. 15AP-985,

2016-Ohio-3141, ¶ 8. In the absence of a duty, no legal liability for negligence can arise.

Smallwood v. MCL, Inc., 10th Dist. Franklin No. 14AP-664, 2015-Ohio-1235, ¶ 7.

       {¶ 19} Specifically, this appeal is centered upon the propriety of applying the open

and obvious doctrine to the drowning death of a mentally sound, mobile adult occurring

in an open pond located on the premises where decedent resided for a considerable period

of time prior to his tragic death.

       {¶ 20} Ohio courts have consistently held that the danger of drowning in a body of

water does constitute an open and obvious risk which generally both minors and adults




5.
should be expected to be able to both appreciate and avoid. Watkins v. Hartford-on-the-

Lake, L.L.C., 10th Dist. Franklin Nos. 16AP-271/272, 2016-Ohio-7792, ¶ 33.

       {¶ 21} The only narrow exceptions to this general rule involve cases in which the

decedent is a child of such a tender age so as to have not developed the mental capacity to

appreciate the risk being encountered, such as a case involving the drowning of a two-

year-old in an aeration pond. Fields v. Henrich, 208 S.W.3d 353, 361 (Ct.App.Mo.2006).

By contrast, this case involved a cognitively sound adult male capable of independent

mobility.

       {¶ 22} In conjunction with the above, Ohio landowners owe no duty of care to

those lawfully present on the subject premises in connection to dangers which are open

and obvious. Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d

1088, ¶ 5.

       {¶ 23} The record of evidence in this case contains numerous deposition

transcripts of both lay and expert witnesses. All of the transcripts consistently and

irrefutably establish that Voland was cognitively intact and capable of independent

mobility prior to this incident.

       {¶ 24} In the deposition testimony of appellant’s own physician, Dr. Schlaudecker

unambiguously conveyed that in the course of his care of Voland he found Voland to be,

“alert,” a “competent individual,” who exhibited, “the capacity,” to independently

determine his course of medical care. It cannot reasonably be maintained that such an




6.
individual simultaneously lacked the cognitive ability to discern the dangers associated

with being in close proximity to a pond.

       {¶ 25} Notably, appellant presented no evidence in support of any notion that

Voland suffered from any defects or malfunction which would have potentially

compromised his ability to discern the dangers of being in close proximity to open bodies

of water.

       {¶ 26} The deposition testimony of both lay and expert witnesses consistently

demonstrated that Voland possessed the capacity and the will to regularly, independently

travel the grounds of the facility in his motorized scooter.

       {¶ 27} In the deposition testimony of appellant, counsel for appellee inquired,

“Your father while he was at St. Clare Commons had free rein to move about the facility

with his motorized wheelchair, true?” Appellant replied, “Yes. Yes.” Counsel next

inquired, “And that’s something he wanted?” Appellant replied, “Yes.” Counsel further

inquired, “And that’s something your family wanted for him?” Appellant replied, “Yes.”

Lastly, counsel inquired, “Were there any restrictions of any kind on your father’s ability

to move about inside or outside the * * * facility?” (Emphasis added). Appellant

correctly replied, “No.”

       {¶ 28} The record reflects that Voland possessed the cognitive ability and function

to appreciate the open and obvious risks associated with being in close proximity to the

open pond located on appellee’s grounds, where Voland had resided for a considerable

period of time prior to his death.




7.
       {¶ 29} The record further reflects that Voland possessed the capacity and the will

to make independent determinations regarding both his medical care decisions and

decisions governing his comings and goings around the facility and grounds.

       {¶ 30} The record is devoid of any evidence in support of the notion that appellant

lacked any skills or functioning so as to arguably avoid an application of the open and

obvious doctrine to this matter.

       {¶ 31} Given that the subject pond undeniably constituted an open and obvious

risk, and given that Voland possessed the requisite functioning to appreciate that open

and obvious risk, reasonable minds can only conclude as a matter of law that appellee

owed no duty of care in connection to Voland traveling near the pond so as to potentially

bear liability arising in negligence to appellant in this case.

       {¶ 32} Based upon these facts and circumstances, and our de novo review of this

matter, we find that reasonable minds could only conclude that appellee is entitled to

judgment as a matter of law on the underlying negligence claim. As such, the trial court

properly granted summary judgment in favor of appellee.

       {¶ 33} We note that this court struck several of appellant’s briefs. Even in the

final, non-stricken brief, appellant again falsely claimed that appellee never assessed

Voland regarding his ability to operate his motorized wheelchair on the facility grounds.

The record of evidence clearly belies this assertion given that the deposition testimony of

Voland’s own physician reflected otherwise.




8.
       {¶ 34} Lastly, in a footnote of appellee’s amended merit brief to this court,

appellee has requested that this court strike Appendix 5 of appellant’s final corrected

brief filed with this court. Appendix 5 consists of a local police report that is not part of

the trial court record properly before this court on appeal. Accordingly, pursuant to

App.R. 9(A), appellee’s motion to strike is hereby granted.

       {¶ 35} On consideration whereof, we find appellant’s sole assignment of error not

well-taken. The judgment of the Wood County Court of Common Pleas is hereby

affirmed. Appellant is ordered to pay the costs of this case pursuant to App.R. 24.


                                                                          Judgment affirmed.




       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.
                                                 _______________________________
Gene A. Zmuda, 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/.




9.
