Association not liable for accidental death in common element hot tub
Ohio Condo Law
07 November 2018
The Fairfield County Court of Common Pleas recently issued a decision
on an association’s liability for a death in the common elements.
An owner reserved the association’s pool and hot tub area for an
extended family party. Tragically, a two year old child drowned
in the hot tub, which broke and was closed that very day. The
child’s family sued the association alleging that the hot tub was an
The association’s potential for liability in this case hinged upon the
“duty of care” it owed to the child while she was on the
property. The duty of care owed is determined by the legal status
of the injured party while on the property. The court examined
whether the child was a “licensee” while on the property. A
licensee is someone the association permits on the property for that
person’s own pleasure or benefit. Under the facts of this case,
the Court determined that the child was on association property using
the facilities as a personal favor, making the child’s legal status and
the association’s duty of care to her as a licensee of the property.
The Court determined that as a licensee, the duty of care the
association owed is to avoid recklessness or intentional harm.
Under these facts, the child and her family were subject to the legal
doctrine of “assumption of the risk”, which holds that where
individuals engage in certain activities, they assume the risks of the
activity and cannot recover for any injury unless they can show the
association’s actions were either reckless or intentional.
Because the doctrine of “assumption of the risk” was applied, the Court
focused additional examination on the conduct of the association to
determine whether the association’s conduct was reckless or
intentional. On the exact day of the pool party, the hot tub was
closed due to a broken heater, but was still filled with water.
The association almost immediately posted a sign indicating the hot tub
was closed. As a licensee, the association owed no duty to warn
of the open and obvious danger posed by the hot tub. Further,
there was no evidence presented by the child’s family of any reckless
or intentional conduct by the association which may have proximately
caused the child’s death. As a result, the association was
NOT liable for any civil damages.
chapter previous next