610 N.E.2d 641
No. 88-11909-AD.Court of Claims of Ohio.
Decided February 27, 1989.
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Russell L. Fagan, pro se.
Kyme Rennick, Chief Counsel, Department of Natural Resources, for defendant.
DANIEL R. BORCHERT, Deputy Clerk.
This action was filed by plaintiff, Russell L. Fagan, for administrative determination by the court.
Findings of Fact
On August 7, 1988, plaintiff, Russell L. Fagan, a patron of defendant’s East Harbor State Park, sustained substantial property damage while boating on defendant’s premises. Specifically, plaintiff has alleged his boat propeller blades and battery were totally destroyed as a result of the propeller blades becoming entangled with a submerged steel cable connected to defendant’s boat launching ramp. Plaintiff had been using the boat launching ramp as a boat dock facility when the incident occurred, although the ramp was not designed or intended for such use. Consequently, plaintiff has filed this complaint seeking to recover $274.18, the replacement cost of the damaged propeller blades and battery.
Defendant, Department of Natural Resources, has denied liability for the incident, although it does not dispute plaintiff’s damage claim. Defendant has asserted plaintiff’s own actions of docking in a place not designated as a boat dock constituted comparative negligence, outweighing any negligence attributable to it in respect to the submerged cable. Defendant has contended
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plaintiff’s improper use of the boat ramp was the cause of his injury and, therefore, it should bear no liability in this matter.
Conclusions of Law
After review of the plaintiff’s complaint, the defendant’s Investigation Report, and other evidence in the case file, the court makes the following determination. The plaintiff, by paying a fee and using defendant’s facility, was considered under the law as a business invitee. Scheibel v. Lipton (1951), 156 Ohio St. 308, 46 O.O. 177, 102 N.E.2d 453. Therefore, the defendant was under a duty to exercise ordinary care for the safety of invitees such as the plaintiff and to keep the premises in a reasonably safe condition for normal use Presley v. Norwood (1973), 36 Ohio St.2d 29, 65 O.O.2d 129, 303 N.E.2d 81.
However, the court finds, in the instant case, plaintiff, although an invitee when he initially entered his watercraft into the water, became a licensee when he docked the boat on the launch ramp without invitation or consent and consequently strayed from defendant’s area of invitation. Ordinarily, since plaintiff was a licensee, defendant had no duty except to refrain from willful or wanton wrongdoing. Hannan v. Ehrlich
(1921), 102 Ohio St. 176, 131 N.E. 504; Clary v. McDonald
(1963), 120 Ohio App. 8, 28 O.O.2d 169, 200 N.E.2d 805. However, when a defendant has notice of plaintiff’s actions, defendant is under a duty to use ordinary care to avoid injury to plaintiff and his property. Maple v. Tennessee Gas Transm. Co. (App. 1963), 94 Ohio Law Abs. 398, 30 O.O.2d 471, 201 N.E.2d 299.
In the instant case, the court finds the defendant had general notice of boating activity in the accident area, considering the site was used for boat launching and recovery. The submerged cable constituted a concealed hazard and, therefore, defendant was under a duty to warn plaintiff of this concealed peril. Since no evidence has shown defendant erected signs or in any other way warned boaters about the submerged cable, the court finds this failure to warn constitutes negligence on the part of defendant and this negligence resulted in plaintiff’s loss. However, the court also finds plaintiff’s actions in improperly using the launch ramp as a boat dock constitutes thirty percent comparative negligence. Consequently, defendant’s negligence amounts to seventy percent of the total negligence in this case and plaintiff’s damage award will be reduced in accordance with this finding.
Administrative Order
Having considered all evidence in the claim file and adopting the decision filed concurrently herewith;
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IT IS ORDERED THAT:
1. Defendant (Ohio Department of Natural Resources) pay plaintiff (Russell L. Fagan) $191.93 and such interest as is allowed by law; and
2. The court absorb the court costs for this case in excess of the filing fee.
Order accordingly.