[Cite as Fuller v. Anchor Pointe Marina, 2017-Ohio-8921.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

Scott T. Fuller, et al. Court of Appeals No. L-17-1051 

 

 Appellants Trial Court No. CI0201502807 

v. 

Anchor Pointe Marina DECISION AND JUDGMENT

Appellee Decided: December 8, 2017 

* * * * * 

 Matthew O. Hutchinson, for appellants. 

 Gene Canestraro and Stephen C. Roach, for appellee. 

* * * * * 

 PIETRYKOWSKI, J. 

{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common 

Pleas, granting summary judgment in favor of appellee, Anchor Pointe Marina, on 

appellants’, Scott and Doll Fuller, claims for damage to their boat, loss of value of their 

dock space, and personal injury. For the reasons that follow, we affirm, in part, and 

reverse, in part. 
2.

I. Facts and Procedural Background

{¶ 2} The claims in this case arise from appellants’ ownership of a boat and dock 

space at appellee’s marina. In October 2012, appellants and appellee entered into an 

agreement for appellee to store their boat over the winter. During that winter, water froze 

inside of the boat causing extensive damage, and the boat was deemed a total loss. The 

damage resulted from the fact that the drain plugs were not pulled prior to the boat being 

stored. 

{¶ 3} Relative to the failure to remove the drain plugs, the terms of the “Winter 

Boat Storage Worksheet” specifically state in two separate places that “Removal of Drain 

Plugs & Batteries are the boat owner’s responsibility,” and “[Appellee] is not responsible 

for any damaged, lost, or stolen items, or removal of batteries and drain plugs.” Further, 

the “Winter Boat Storage Agreement” expressly provides that “This agreement is for 

rental of ground space and is not a bailment agreement. Therefore, [appellee] has no 

responsibility for damage to the boat and owner agrees to provide his own insurance on 

the boat.” 

{¶ 4} The parties originally agreed as indicated on the “Winter Boat Storage 

Worksheet” that the boat was to be removed from the water on October 29, 2012. Mr. 

Fuller was present that day to remove the drain plugs and battery from his boat. 

However, he was informed that the boat could not be removed at that time because of the 

weather. Mr. Fuller advised appellee that he was unable to return to have the boat 

removed because of his work schedule. He testified in his deposition that he was told by 
3.

Donna, an office worker who has since passed away, to leave the boat near the sling, and 

when appellee resumed pulling boats from the water they would pull his. After he tied 

his boat near the sling, Mr. Fuller reminded Donna that his boat needed to be plugged in 

so that the batteries would not run out of power causing his boat to sink. He paid his bill 

at the time, and was told by Donna that “We’ll take care of it.” 

{¶ 5} The next day, Mr. Fuller called appellee to see if his boat had been pulled 

from the water, and he was told that it had not been. The day after that, Mr. Fuller called 

again, and again was told that the weather was preventing the removal of any boats. Mr. 

Fuller testified that two days later he called for a third time, asking if his boat had been 

pulled. He stated that Donna told him, “Yep, we took care of everything, we got it 

winterized, shored, everything’s taken care of. You don’t have to worry about nothing.” 

{¶ 6} Mr. Fuller testified that he never specifically said anything to Donna about 

removing the drain plugs. However, he stated that when he left the boat at the sling, he 

spoke with a mechanic who was there, and opened up his boat and showed the mechanic 

where the drain plugs were, and told the mechanic to take care of it. Mr. Fuller testified 

that the mechanic replied “Yep, no problem.” 

{¶ 7} After the boat was deemed a total loss by appellants’ insurance company, 

appellants purchased a new boat. The new boat was larger than the previous one, and 

would not fit in appellants’ dock space. Appellants requested that they be assigned a 

larger dock space, but appellee refused. Appellants ultimately were directed to a docking 

space along the shoreline wall. 
4.

{¶ 8} Mr. Fuller testified that after he had been docked along the wall for one or 

two weeks he came to do some work on his boat on June 5, 2013. It was a warm, sunny 

day, and Mr. Fuller had made several trips from his truck onto his boat carrying the tools 

and items that he would need. He testified that on his third or fourth time getting onto the 

boat he tripped and fell over a metal conduit that was attached to the shoreline wall. Mr. 

Fuller admitted that nothing was obstructing his view of the conduit, and he knew that the 

conduit was there. As a result of his fall, Mr. Fuller broke his right shoulder. 

{¶ 9} On May 28, 2015, appellants filed their three-count complaint, asserting 

claims for damage to the boat, loss of value of the dock space, and personal injury. 

Appellee answered and filed a counterclaim for past due assessments related to 

appellants’ ownership of the dock space. 

{¶ 10} On July 20, 2015, appellee moved for summary judgment on appellants’ 

claims. Appellee argued that it was not liable for the damages to appellants’ boat because 

the “Winter Boat Storage Agreement” expressly stated that it was not a bailment 

agreement, disclaimed any liability for damage to the boat, and contained a release of all 

claims and damages. Further, appellee argued that it was not liable for appellants’ claim 

for the loss of value of the dock space because appellants chose to purchase a larger boat 

that did not fit, and thus any alleged wrongful conduct on the part of appellee was not a 

proximate cause of appellants’ damages. Finally, appellee argued that it was entitled to 

summary judgment on appellants’ personal injury claim because the hazard that caused 

the fall was a known condition to Mr. Fuller, and it was open and obvious. 
5.

{¶ 11} Appellants responded to the motion for summary judgment, and argued that 

a bailment agreement arose and superseded the “Winter Boat Storage Agreement” when 

appellee was unable to remove the boat from the water on October 29, 2012, and told Mr. 

Fuller that “it would take care of it” and haul it out without his presence. As to the claim 

for loss of value of the dock space, consistent with their complaint, appellants argued that 

appellee drove down the resale value of appellants’ dock space by subsequently offering 

free dock space to anyone who was willing to pay an $800 assessment fee for five years. 

Finally, regarding the personal injury claim, appellants argued that either appellee was 

negligent per se because the conduit violated the building code, the placement of the 

conduit was willful and wanton misconduct, or the hazard was not open and obvious 

because it was in a location where a person’s focus would be diverted towards stepping 

onto the boat. 

{¶ 12} Appellee replied, and, inter alia, argued that the statements of the deceased 

office worker that appellants relied on to create the bailment agreement were 

inadmissible hearsay because they did not fall under Evid.R. 804(B)(5) governing 

statements by a deceased person. 

{¶ 13} On August 25, 2016, the trial court granted appellee’s motion for summary 

judgment. As to the count for damage to the boat, the trial court reasoned that the 

“Winter Boat Storage Agreement” disclaimed any liability on the part of appellee, and 

expressly did not create a bailment agreement. Further, the court found that the 

exculpatory clause was not unenforceable as against public policy. Regarding appellants’ 
6.

assertion of a subsequent bailment agreement, the trial court found that there was no 

admissible evidence to support appellants’ claim because the statements of the nowdeceased office worker and the unidentified mechanic were inadmissible hearsay. 

{¶ 14} The trial court further awarded summary judgment in favor of appellee on 

appellants’ claim for the loss of the value of the dock, finding that, in addition to Mr. 

Fuller being the sole cause of his inability to use the dock space, the complaint failed to 

state a claim. The court noted, in particular, that the complaint alleges that appellants 

purchased the dock space for $3,000, but appellants admit that appellee is now offering 

pier spaces for $4,000 ($800 assessment per year for five years). Thus, the court 

concluded that appellants were not precluded from marketing their space at a profit. 

{¶ 15} Finally, in regards to appellants’ claim for personal injury, the trial court 

found that appellee did not owe a duty to Mr. Fuller because Mr. Fuller had actual 

knowledge of the risk, and because the condition was open and obvious. 

{¶ 16} Appellants appealed the trial court’s August 25, 2016 decision. However, 

because the trial court failed to resolve appellee’s counterclaim for past due assessments, 

we remanded the matter to the trial court as it was not a final, appealable order. On 

February 6, 2017, the trial court entered its judgment granting summary judgment in 

favor of appellee on its counterclaim. 

II. Assignments of Error

{¶ 17} Appellants have timely appealed the trial court’s judgment, and now assert 

four assignments of error for our review: 
7.

 1. The trial court erred in finding that the Storage Agreement and 

Worksheet excused Anchor Pointe of liability for its failure to remove the 

drain plugs from Mr. Fuller’s boat. 

 2. The trial court erred in excluding the statements made by Ms. 

Huth and the mechanic as inadmissible hearsay. 

 3. The trial court erred in finding that Mr. Fuller had failed to state a 

claim as to the loss of value of his boat condominium, which was caused by 

Anchor Pointe when it started to give away boat condominiums to 

prospective purchasers. 

 4. The trial court erred in finding that there was no genuine issue of 

material fact as to whether Anchor Pointe had established the open and 

obvious defense. 

III. Analysis

{¶ 18} We review the grant of a motion for summary judgment de novo, applying 

the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 

127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d 

102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate 

where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled 

to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, 

and viewing the evidence most strongly in favor of the nonmoving party, that conclusion 
8.

is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio 

St.2d 64, 66, 375 N.E.2d 46 (1978). 

A. Claim for Damage to the Boat

{¶ 19} Because appellants’ first and second assignments of error both pertain to 

their claim for damage to the boat, we will address them together. In their first 

assignment of error, appellants argue that the exculpatory clauses in the “Winter Boat 

Storage Agreement” do not apply to the situation because the damage occurred not from 

the storage of the boat, but rather appellee’s failure to remove the drain plugs from the 

boat when it hauled it out of the water. Further, as to the “Winter Boat Storage 

Worksheet,” appellants argue that either the disclaimers of liability contained therein are 

unconscionable under the present circumstances, or appellee, through its agents, agreed to 

modify the terms of the “Winter Boat Storage Worksheet” to accept responsibility for 

removing the drain plugs. 

{¶ 20} We initially note that, in the trial court, appellants argued that the 

exculpatory clauses were unenforceable as against public policy, not because the clauses 

were unconscionable. Regardless, we agree with the trial court’s conclusion that the 

disclaimer of liability contained in the “Winter Boat Storage Worksheet” is enforceable. 

“As a general proposition, attempts to excuse liability for negligence by contract are 

disfavored in the law. This is especially true in the case of bailments made in the course 

of a general dealing with the public. Nonetheless, absent important public policy 

concerns, unconscionability, or vague and ambiguous terms, limiting or exculpatory 
9.

provisions will be upheld.” Collins v. Click Camera & Video, 86 Ohio App.3d 826, 832, 

621 N.E.2d 1294 (2d Dist.1993). “A determination of whether a written contract is 

unconscionable is an issue of law.” Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio 

St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 34. “Unconscionability includes both an 

absence of meaningful choice on the part of one of the parties together with contract 

terms which are unreasonably favorable to the other party.” (Citations omitted.) Id. at 

¶ 33. “The party asserting unconscionability of a contract bears the burden of proving 

that the agreement is both procedurally and substantively unconscionable.” Id.

{¶ 21} Here, appellants have not provided any evidence or arguments that the 

agreement was procedurally unconscionable. Instead, they argue that the disclaimer of 

liability is unconscionable under the facts of this case where Mr. Fuller was present and 

ready to remove the drain plugs and battery as agreed, but appellee refused to perform its 

obligation of pulling the boat out of the water. Thus, while appellants have failed to 

satisfy their burden of showing that the agreement was unconscionable, they do raise an 

issue regarding whether the parties either modified the agreement, or entered into a new 

agreement. 

{¶ 22} Appellants argue that the agreement was modified when appellee refused to 

pull the boat out of the water and instructed Mr. Fuller to leave the boat at the sling, with 

Donna stating “We’ll take care of it,” and the unidentified mechanic replying that it was 

“no problem” to take out the drain plugs. The trial court discounted appellants’ 

arguments, finding that the statements from Donna and the mechanic were inadmissible 
10. 

hearsay under Evid.R. 804(B)(5). In their second assignment of error, appellants contend 

that the trial court erred in excluding the out of court statements because they were not 

hearsay, but rather admissions of a party opponent under Evid.R. 801(D)(2), which 

provides “A statement is not hearsay if: * * * The statement is offered against a party 

and is * * * (d) a statement by the party’s agent or servant concerning a matter within the 

scope of the agency or employment, made during the existence of the relationship.” 

{¶ 23} Appellee, in opposition, argues that Evid.R. 801(D)(2)(d) does not apply 

because the statements were not made within the scope of the employment.1

 In support, 

appellee relies on an affidavit from Eric Van Duzen, Sr., an officer and member of the 

board of directors of appellee, in which Van Duzen states that no employee has ever been 

authorized to agree to remove drain plugs from boats stored at the marina. However, the 

issue of whether an employee was authorized to bind the company in a contractual 

agreement is separate from the issue of whether the statement was made within the scope 

of his or her employment for purposes of determining whether the statement was hearsay 

under Evid.R. 801(D)(2)(d). Here, the purported statements were made by employees of 

appellee, while they were acting on behalf of appellee, and regarding a transaction with 

one of appellee’s customers. Therefore, we find that the out of court statements of Donna 

 

1

 Appellee also contends that appellants failed to raise in the trial court the argument that 

the out of court statements were admissions of a party opponent, and therefore they 

cannot raise the issue for the first time on appeal. However, appellee did not challenge 

the admissibility of the statements until it filed its reply brief in support of its motion for 

summary judgment. 
11. 

and the unidentified mechanic are not hearsay, and the trial court erred in excluding those 

statements. 

{¶ 24} Considering those statements, we now turn to the issue of whether the 

parties agreed to modify the “Winter Boat Storage Worksheet” to provide for appellee 

accepting responsibility to remove the drain plugs from the boat. Appellee contends that 

Donna and the unidentified mechanic lacked authority to so bind the company. 

Appellants, on the other hand, argue that the employees, while perhaps not possessing 

actual authority, nonetheless possessed implied or apparent authority. 

 In order for a principal to be bound by the acts of his agent under the 

theory of apparent agency, evidence must affirmatively show: (1) that the 

principal held the agent out to the public as possessing sufficient authority 

to embrace the particular act in question, or knowingly permitted him to act 

as having such authority, and (2) that the person dealing with the agent 

knew of those facts and acting in good faith had reason to believe and did 

believe that the agent possessed the necessary authority. 

Master Consol. Corp. v. BancOhio Natl. Bank, 61 Ohio St.3d 570, 575 N.E.2d 817 

(1991), syllabus. 

{¶ 25} “The existence of an agency relationship is a question of fact.” Dickinson 

v. Charter Oaks Tree & Landscaping Co., 10th Dist. Franklin No. 02AP-981, 2003-Ohio2055, ¶ 22, citing McSweeney v. Jackson, 117 Ohio App.3d 623, 631, 691 N.E.2d 303 

(4th Dist.1996). 
12. 

{¶ 26} Here, Mr. Fuller testified that Donna was the office worker for appellee, 

and that “She took care of everything in the office.” Viewing this evidence in a light 

most favorable to appellants, we find that it is sufficient to create a genuine issue of 

material fact as to whether Donna had apparent authority to bind appellee to remove the 

drain plugs. As testified to by Mr. Fuller, Donna was a long-tenured worker, who 

handled all of the office matters. She was the person to whom he submitted his payment, 

was the person who directed him to leave his boat at the sling, and was the apparent 

contact person for removing the boat. From this evidence, a reasonable person could 

conclude that appellee held Donna out as possessing sufficient authority, or knowingly 

permitted her to act as though she had such authority, to agree to remove the boat at a 

later date, and to remove the drain plugs without Mr. Fuller’s presence. 

{¶ 27} Likewise, we hold that a genuine issue of material fact exists regarding 

whether the parties did in fact either create a new agreement or modify the existing one to 

provide for appellee to assume responsibility for removal of the drain plugs, based on Mr. 

Fuller’s testimony that Donna told him “We’ll take care of it,” and later confirming that, 

“Yep, we took care of everything, we got it winterized, shored, everything’s taken care 

of. You don’t have to worry about nothing.” 

{¶ 28} Therefore, we hold that the trial court erred in granting summary judgment 

to appellee on appellants’ first count for damage to their boat. 

{¶ 29} Accordingly, appellants’ first and second assignments of error are welltaken. 
13. 

B. Claim for Loss of Value of Dock Space

{¶ 30} In their third assignment of error, appellants argue that the trial court erred 

in granting summary judgment to appellee on their claim for loss of value of their dock 

space. Appellants contend on appeal that a genuine issue of material fact exists whether 

appellee owed a fiduciary duty to all of appellee’s boat condominium owners, including 

appellants, to maintain the market for the dock spaces, which appellee breached when it 

began to give away dock spaces if the new owner agreed to pay the $800 annual 

assessment for five years. 

{¶ 31} In moving for summary judgment, appellee only argued that it was not the 

proximate cause of appellants’ loss of value of the dock space, but rather the proximate 

cause was appellants’ decision to purchase a boat that would not fit in their space. 

Appellee, however, ignored appellants’ assertions in paragraphs 13 and 14 of the 

complaint that “Scott Fuller’s old dock space is unmarketable since Anchor Pointe 

Marina, after Scott’s dock purchased (sic) went into competition with its members by 

offering free dock spaces for persons who agree to pay the annual $800 assessment fees 

for five years. * * * Pursuant to such competition, Scott Fuller has lost the $3,000.00 

investment he made in dock space C-22.” Thus, the alleged cause of the loss of value 

was not appellants’ purchase of a new boat, but rather the conduct of appellee in 

competing with its members. Therefore, as stated by appellants in their memorandum in 

opposition, appellee has not provided any factual or legal argument to support or 

demonstrate why it is entitled to summary judgment. 
14. 

{¶ 32} Furthermore, the trial court, in its decision, determined that summary 

judgment was appropriate because “while [Mr. Fuller] alleges he invested $3,000 in the 

pier space, he also admits that Anchor Pointe is now offering pier spaces at the marina for 

$4,000 ($800 per year for five years) to any persons interested. Thus, he admits that his 

investment is less than what a new purchaser would have to pay – he does not appear to 

be precluded from marketing his pier space at a profit.” However, the trial court’s 

finding is not consistent with the allegation in the complaint that appellee gave dock 

spaces away at no cost, as well as the allegation in the counterclaim that the “Declaration 

of Condominium Ownership” provides that “each unit owner shall pay yearly or monthly 

or special assessments to the defendant for the cost of maintenance, insurance, and other 

common area expenses and assessments of the Association.” Thus, at the least, a genuine 

issue of material fact exists whether every dock space owner, including the owner of 

appellants’ dock space, must pay an assessment, with the net effect that appellee is giving 

away for free that for which appellant paid $3,000. 

{¶ 33} Therefore, because appellee did not present any evidence demonstrating 

that no genuine issue of material fact exists, nor articulate any relevant legal theory 

explaining why appellants’ claim for loss of value of the dock space based on appellee’s 

conduct in giving away dock spaces for free with a five-year commitment was untenable 

as a matter of law, we hold that the trial court erred in granting summary judgment to 

appellee. 

{¶ 34} Accordingly, appellants’ third assignment of error is well-taken. 
15. 

C. Claim for Personal Injury

{¶ 35} Finally, in their fourth assignment of error, appellants argue that the trial 

court erred in determining that the metal conduit was an open and obvious condition. 

Relying on an expert affidavit submitted with their opposition to appellee’s motion for 

summary judgment, appellants argue that a genuine issue of material fact existed whether 

the act of getting onto and off of the boat was an attendant circumstance that would have 

rendered the trip hazard caused by the metal conduit not open and obvious. 

{¶ 36} Initially, we note that the parties do not contest that Mr. Fuller was on 

appellee’s premises as a business invitee. “A shopkeeper owes business invitees a duty 

of ordinary care in maintaining the premises in a reasonably safe condition so that its 

customers are not unnecessarily and unreasonably exposed to danger.” Paschal v. Rite 

Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). “A shopkeeper is not, 

however, an insurer of the customer’s safety.” Id. Thus, “a shopkeeper is under no duty 

to protect business invitees from dangers ‘which are known to such invitee or are so 

obvious and apparent to such invitee that he may reasonably be expected to discover 

them and protect himself against them.” Id., quoting Sidle v. Humphrey, 13 Ohio St.2d 

45, 233 N.E.2d 589 (1968), paragraph two of the syllabus. 

{¶ 37} Appellants focus on whether the hazard was open and obvious. However, 

appellants do not address the fact that Mr. Fuller admitted that he knew the conduit was 

there. Regardless of whether the hazard was open and obvious, because Mr. Fuller had 

actual knowledge of it, appellee was under no duty to protect him from the danger. See 
16. 

Wicichowski v. Gladieux V. Enterprises, Inc., 54 Ohio App.3d 177, 179, 561 N.E.2d 1012 

(6th Dist.1988) (where injured party tripped in a stairwell, “[B]ecause appellant had 

knowledge of the condition of the step at least equal to that of appellee, appellee did not 

breach any duty owed to appellant and, therefore, is not guilty of actionable negligence as 

a matter of law.”). Further, “the plaintiff’s failure to avoid a known peril is not excused 

by the fact that he ‘did not think,’ or ‘forgot.’” Raflo v. Losantiville Country Club, 34 

Ohio St.2d 1, 3, 295 N.E.2d 202 (1973). Therefore, we hold that because appellee owed 

no duty to protect Mr. Fuller from the trip hazard caused by the metal conduit, the trial 

court did not err in granting summary judgment to appellee on appellants’ claim for 

personal injury. 

{¶ 38} Accordingly, appellants’ fourth assignment of error is not well-taken. 

IV. Conclusion

{¶ 39} For the foregoing reasons, we find that substantial justice has not been done 

the parties complaining, and the judgment of the Lucas County Court of Common Pleas 

is reversed, in part, and affirmed, in part. This matter is remanded to the trial court for 

further proceedings consistent with this decision on appellants’ claims for damage to their 

boat and loss of value of their dock space. Pursuant to App.R. 24, the costs of this appeal 

are ordered to be shared evenly by the parties. 

Judgment reversed, in part, 

and affirmed, in part. 

 
17. 

 Fuller v. Anchor Pointe Marina 

 C.A. No. L-17-1051 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

James D. Jensen, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE