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 “attractive nuisance”.

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.

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