The Ohio Supreme Court on May 2, 2007 dismissed as improvidently accepted an appeal addressing the “Open and Obvious” Doctrine: Uddin v. Embassy Suites Hotel, 113 Ohio St.3d 1249, 2007-Ohio-1791. I reported on the Uddin oral argument in the lead article of the March/April 2007 issue of the Tort Law Journal of Ohio.
Justices Stratton, O’Donnell, Lanzinger, and Cupp voted to dismiss the appeal. Justice O’Connor, joined by Chief Justice Moyer and Justice Pfeifer, dissented, writing a lengthy opinion addressing the merits of the case. It was an odd turn of events, because three of the justices voting to dismiss (Stratton, O’Donnell, and Lanzinger) had voted (along with Justice O’Connor) to accept the appeal, while two of the three dissenters (Moyer and Pfeifer) had voted (along with former Justice Resnick) against accepting the appeal. See 5/10/2006 Case Announcements, 2006-Ohio-2226.
In Uddin, a ten-year-old hotel guest drowned in the hotel’s swimming pool. The water in the five-foot pool was so white and murky that the bottom was not visible. The water’s lack of clarity violated former section 3701-31-07(C) of the Ohio Administrative Code. The trial court granted summary judgment to the hoteliers on the ground that swimming pools are, as a matter of law, open and obvious hazards. The Tenth District Court of Appeals reversed, but each of the three judges authored an opinion in which no other judge joined.
The dissenters fell one vote short of the expected affirmance. The dissenters would have ruled that the “Open and Obvious” Doctrine did not apply in this case, due mostly to the victim’s youth.
The dissenters also would have expressed a second basis for affirming: that there were genuine issues of material fact arising from the administrative rule violation. The dissenters sought to bring clarity to Ohio law: “Given the apparent uncertainty in courts, and the important public policy issues that underlie both the open-and-obvious doctrine and the promulgation of public-health administrative rules, I believe we should address how a possible violation of the Ohio Administrative Code affects the analysis governing the open-and-obvious doctrine.” Uddin, 113 Ohio St.3d 1249, 2007-Ohio-1791, ¶15 (O’Connor, dissenting). But the dissent’s attempt to bring clarity falls short. The dissent’s proposed holding is: “Like the court of appeals, I would hold that if there is evidence that could support a finding that a defendant violated an administrative rule, and if that violation raises a genuine issue of material fact as to whether there was a duty, a breach, and proximate cause, summary judgment is inappropriate.” Id. at ¶15.
That proposed holding falls short in two regards. First, what that sentence really means is that there is a genuine issue of fact regarding whether the quality of the water was an independent hazard not obvious to the ten-year-old victim – regardless of any administrative-rule violation. The dissent’s discourse on the value of administrative rules is unnecessary and confusing. Second, referring to the court of appeals decision in such general fashion only confuses, because each of the three court of appeals judges analyzed the case differently.
The majority did not provide a reason for the dismissal. With the dissent so focused on the age of the victim, my guess is that the majority was uncomfortable with the state of the factual record and the development of Ohio law on the general question of the extent to which the “Open and Obvious” Doctrine should distinguish between children and adults. Uddin may stoke that debate.
Contact this Author: Paul Giorgianni
