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Ohio Supreme Court To Rule if Murky Pool at Columbus
 Embassy Suites Creates Hotel Liability in Drowing Death

By James Nash, The Columbus Dispatch, OhioMcClatchy-Tribune Business News

Feb. 14, 2007 - A Columbus hotel is responsible for the drowning of a 10-year-old girl in its pool because the hotel allowed the water to become too murky, an attorney for the girl's family told the Ohio Supreme Court yesterday.

The milky water at the Embassy Suites hotel near Cleveland Avenue and I-270 on the North Side complicated efforts to find and rescue Shayla Uddin as she drowned during a birthday party in April 2000, said attorneys for her father, Al Uddin.

Several other cases await the Supreme Court's decision. In one Butler County case, for example, the family of a woman who died after falling from a stairwell sued the business, claiming that the lack of a handrail caused her death.

Like the Uddins, the Butler County family argued that a business is liable for death or injury for failing to maintain safety standards even if the person's own behavior puts him or her at risk.

The Uddins' attorney, W. Joseph Edwards, conceded that pools are inherently dangerous but said that Embassy Suites compounded the danger by allowing the water to become cloudier than the state allows.

At the time Shayla drowned, the Ohio Department of Health required that water in public pools be clear enough to see a 6-inch black disc placed on a light field at the deepest point of the pool.

The law now requires that pool water be clear enough to see the bottom of the pool at its deepest point.

"It's interesting or curious that there's not one piece of evidence, not one affidavit from anyone who worked at the Embassy Suites, that the water was clear," Edwards said. "The water was murky. Because of that, there was a delay in the attempt to find and rescue Shayla Uddin."

The hotel's attorney, Dale E. Markworth, said swimming pools are an "open and obvious" danger regardless of the clarity of their water. Shayla was one of about a dozen children using the indoor pool under the supervision of a single 18-year-old who was not the parent of any of the children, according to police reports filed in the incident. Several parents were in a hotel room at the time.

"It's obvious that a child, even a child of 10 years, would recognize the danger of drowning," Markworth told justices. "Milky water is not a case where you cannot apply the openand-obvious doctrine."

Justice Maureen O'Connor suggested that the hotel might bear more responsibility for the delay in finding and attempting to rescue Shayla. One witness said that Shayla might have been in the water for more than a half-hour when the 18-yearold chaperon stumbled across her body underwater.

"We're talking about milky, clouded water that precluded an adult -- there was an adult there supervising -- from seeing the child at the bottom of the pool," O'Connor said.

Markworth said outside court that the pool had passed routine clarity inspections but had become temporarily clouded because many people were using it at once. There's no automatic system to alert the hotel staff when the water becomes murky, nor was a lifeguard at the pool, he said.

Justice Evelyn Lundberg Stratton said the court's ruling in the Uddin case could have implications for drownings in water that's naturally murky, such as streams and ponds. In those cases, she asked, would a property owner be blamed for a death that's partially attributable to muddy water?

Edwards said the logic doesn't apply because the state regulates water clarity in swimming pools, but no one is proposing to regulate the muddiness of natural bodies of water.

The Supreme Court is expected to rule in several months.

jnash@dispatch.com

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Copyright (c) 2007, The Columbus Dispatch, Ohio

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