In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.Posted: April 7, 2014
This decision held that falling down while hiking at night was an inherent risk of hiking, especially at night.
Morgan et al., v. Ohio Conference of the United Church of Christ et al., 2012-Ohio-453; 2012 Ohio App. LEXIS 385
Date of the Decision: February 7, 2012
Plaintiff: Brian Morgan and his wife Amie Morgan
Defendant: Ohio Conference of the United Church of Christ (“OCUCC”) and Templed Hills Camp and Conference Center
Plaintiff Claims: negligence
Defendant Defenses: defendant assumed the risks of hiking at night, falling was an inherent risk of hiking
Holding: for the defendants
Ohio has a statute that requires kids to receive some of their education about the outdoors in the outdoors. This law was passed in the early 70’s. I know I was a camp counselor for one of these trips as a senior in high school.
This case comes from a school group going to a camp for outdoor classroom. The plaintiff had done this for five consecutive years, and for five years had participated as a chaperone on the “night hike.” During the night hike, after crossing a stream the plaintiff fell injuring his shoulder.
The plaintiff sued. The defendant camp filed a motion to dismiss claiming the plaintiff assumed the risk, which was granted by the court and this appeal followed. Due to the evidence presented the appellate court viewed the motion as a motion for summary judgment.
Summary of the case
The Ohio Appellate court extensively reviewed Primary Assumption of the Risk under Ohio Law.
Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries. The doctrine is based on the fiction that the plaintiff has “tacitly consented” to the risk of injury inherent in the activity. The rationale behind the doctrine is that certain risks are so intrinsic in some activities that the risk of injury is unavoidable. The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.”
The effect of a court finding that the plaintiff assumed the risk as defined, by Primary Assumption of the Risk, is a complete bar to the plaintiff’s claims.
The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.
The court then explained how Primary Assumption of the Risk worked to stop a claim by the plaintiff.
Primary assumption of risk ‘is really a principle of no duty, or no negligence, and so denies the existence of any underlying cause of action. Primary assumption of the risk serves to negate the duty of care owed by the defendant to the plaintiff. “Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.”
To prevail at trial, the plaintiff has to make a prima facie case. That means the plaintiff has to plead and prove enough facts to prove their case. If the defendant or the court can show the risks of the activity which caused the injury to the plaintiff were inherent to the activity, then the plaintiff is prevented from even making his or her case.
The risks of the activity that are sufficient to prove Primary Assumption of the Risk are “…types of risks inherent to an activity are those risks that are foreseeable and customary risks of the sport or recreational activity.”
The telling issue, as the court explained, is not of the actions of the parties but of the risk. “If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.”
The court also looked at the defendant’s side of the facts. “The focus in primary assumption of the risk is on the defendant’s conduct, whether such conduct was reckless or intentional.” If the conduct of the defendant was not reckless or intentional, if the defendant did not do anything that increased the risk to the injured plaintiff in a reckless or intentional way than the defense stands.
In the instant case, the trial court noted that hiking was a recreational activity to which the doctrine applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night.
The court then looked at how Ohio defines tortious conduct. It came from the plaintiff’s argument that the defendant increased the risk by reckless choosing the trail that the plaintiff fell on.
Intentional misconduct and recklessness contrasted. Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results.
Negligence and recklessness contrasted. Reckless mis-conduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.
Because the conduct of the employee, the guide of the night hike, was not intentional or reckless, the plaintiff was prevented from brining his claims because of the defense of Primary Assumption of the Risk.
So Now What?
The issues you need to understand when looking at the risks of outdoor or recreational activities are which risks are of what type. Those risks that are not inherent in the activity are the ones that you are at the greatest risk of losing a lawsuit over unless you can prove the guest knew and assumed the risks or released you from their injury prior to the activity.
This does not mean you should not inform your guests of all the risks. On the contrary, knowledgeable guests are happier guests and usually injury-free guests. Any injury is a problem for you no matter how small and a problem for the entire group all the time.
What this means is when you list the risks of the activity you need to make sure you know which ones may need special attention for your guests. Those they do not recognize or understand which may include some inherent risks, and those that are obvious.
What do you think? Leave a comment.
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By Recreation Law Recfirstname.lastname@example.orgJames H. Moss #Authorrank
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