A TRAGEDY WITHOUT COMPENSATION
We hear the opening gun of summer this weekend (not the astronomical kind, but the vacation-from-school and lazy-days and, thankfully, the-pandemic’s-over kinds). I plan to some time on Sunday for a visit to Nickel Plate Beach in Huron, Ohio. Nickel Plate (named for a great railroad of the same name) is a substantial extent of sand on the south shore of Lake Erie. Usually, it’s sunny and peaceful there. But sometimes, when the wind is out of the northwest, the deceptively tranquil beach develops a serious undertow.
The story is repeated often enough that lifeguards hear it in training as a cautionary tale. Someone is drowning, and a rescuer tries to help, only to die as well. On a stormy summer day in 2002, a woman was trapped in the undertow at Nickel Plate Beach. She was rescued, but not before four young men perished when they entered the troubled water to save her.
Afterward, families of the men sued the City of Huron, arguing that despite Ohio’s recreational user statute, the City was not immune from liability for the men’s deaths. The trial court disagreed and dismissed the suit. An appellate court agreed. The City ran the beach, but there was no evidence that it controlled or tried to control the waters of Lake Erie, which belonged to the State of Ohio. The men drowned in Lake Erie, the Court held, not on the grounds of the city park. Thus, even if Lake Erie constituted a nuisance, it wasn’t the City’s nuisance, but rather the State’s.
Smith v. Huron, 2007-Ohio-6370, 2007 Ohio App. LEXIS 5589, 2007 WL 4216133 (Ohio App. Erie Co., Nov. 30, 2007). Four people died at Nickel Plate Beach on July 10, 2002, when another person screamed for help from the water. The four entered the water to save her, but although she survived, the four would-be rescuers drowned in the windswept waters of Lake Erie.
Their survivors sued the City of Huron, seeking recovery for the drowning deaths from the city and entities that controlled the beach. They claimed that the city failed to maintain the swimming area it owned in a safe manner and failed to warn the general public of hazardous defects on the premises. The complaint also alleged the city maintained or abetted the creation of a nuisance at the beach and in the water; that the deceased men had reasonably relied upon representations that the beach and waters were safe, and that the city voluntarily assumed a duty of controlling and maintaining the waters adjacent to the beach.
The City of Huron filed for summary judgment arguing that it was entitled to immunity as a political subdivision pursuant to O.R.C. Chapter 2744, that it was not liable because it had satisfied the requirements of Ohio’s recreational user statute, that the men engaged in recreational pursuits prior to their deaths, and that the decedents assumed the risk by voluntarily exposing themselves to the waters of Lake Erie even though they were warned of the dangerous conditions. The trial court granted the City summary judgment. The survivors appealed.
Held: The City of Huron was immune from liability. The survivors claimed that O.R.C. §2744, Ohio’s Political Subdivision Tort Liability Act, did not confer immunity on Huron. And indeed, under O.R.C. 2744.02(B), in some situations, a political subdivision can be held liable for damages in a civil suit arising from injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or its employees in connection with a governmental or proprietary function.
The survivors claimed the City was liable under the exception that a political subdivision can be held liable for damages in a civil suit arising from injury, death, or loss to persons or property caused by its failure to keep the public grounds within their political subdivision open, in repair and free from nuisance. They argued that Nickel Plate Beach and the waters of Lake Erie adjacent to the shoreline are public grounds within the city of Huron.
The Court of Appeals ruled that the city didn’t maintain any actual control over Lake Erie itself by placing buoys in the lake or at times posting “no swimming” signs on the beach. The city didn’t actively keep swimmers from going beyond the buoys or boaters from going inside the marked area; nor did the city take overt actions to prevent swimmers from going in the water when the beach was “closed” due to rough conditions. More important, the Court said, title to Lake Erie clearly belongs to the state of Ohio, which holds it in trust for the benefit of the people of Ohio.
The victims in this case drowned in Lake Erie, not on grounds within Nickel Plate Beach or Huron. The City didn’t maintain any actual control of Lake Erie. Based on that, the Court found that the trial court correctly granted summary judgment in favor of the City of Huron.
– Tom Root