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Holbrook v. Mccracken, 2004-Ohio-3291; 2004 Ohio App. LEXIS 2932

Holbrook v. Mccracken, 2004-Ohio-3291; 2004 Ohio App. LEXIS 2932

Matthew Holbrook, Plaintiff-appellant vs. Erin Mccracken, Defendant-appellee

NO. 83764

COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY

2004-Ohio-3291; 2004 Ohio App. LEXIS 2932

June 24, 2004, Date of Announcement of Decision

PRIOR HISTORY: [**1] CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Court of Common Pleas. Case No. CV-466188.

DISPOSITION: AFFIRMED.

COUNSEL: For plaintiff-appellant: JACK G. FYNES, NATHAN A. HALL, Attorneys at Law, SHUMAKER, LOOP & KENDRICK, LLP, Toledo, Ohio.

For defendant-appellee: JAMES M. JOHNSON, Attorney at Law, KOETH, RICE & LEO CO., L.P.A., Cleveland, Ohio.

JUDGES: KENNETH A. ROCCO, JUDGE. JAMES J. SWEENEY, P.J. and DIANE KARPINSKI, J. CONCUR.

OPINION BY: KENNETH A. ROCCO

OPINION

ACCELERATED DOCKET

JOURNAL ENTRY and OPINION

KENNETH A. ROCCO, J.

[*P1] This cause came to be heard on the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 11.1. The purpose of an accelerated appeal is to allow the appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Ass’n (1983), 11 Ohio App. 3d 158, 11 Ohio B. 240, 463 N.E.2d 655.

[*P2] Plaintiff-appellant Matthew Holbrook appeals from the trial court order that granted summary judgment to defendant-appellee Erin McCracken, thus terminating appellant’s personal injury action.

[*P3] Appellant was injured when he fell from an indoor rock wall he had climbed for recreation. At the time, appellee was acting as his “belayer, [**2] ” i.e., as appellant descended from his successful climb, appellee reversed the process of taking up slack and instead let out rope for him from the top of the wall through a harness system attached to her body. Appellee stated she thought she “wasn’t fast enough” at locking the smooth “new” rope before too much of it slipped through the device on her harness and slackened appellant’s line.

[*P4] In his sole assignment of error, appellant argues the trial court improperly determined the doctrine of primary assumption of the risk precluded appellee’s liability on appellant’s claim. This court disagrees.

[*P5] [HN1] The Ohio Supreme Court recently reaffirmed the applicability of that doctrine to recreational activities in Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, 802 N.E.2d 1116. In order to gain the thrill associated with rock climbing, the appellant voluntarily assumed the primary and “inherent risk” of the activity, viz., falling. Blankenship v. CRT Tree, 2002 Ohio 5354.

[*P6] Therefore, despite appellant’s expert’s opinion that appellee was “reckless” in permitting the rope to slip through her hands, [HN2] the risk of falling [**3] inherent to the activity of rock climbing can be “reduced***[but] cannot be eliminated.” Vorum v. Joy Outdoor Education Center, (Dec. 12, 1998), 1998 Ohio App. LEXIS 6139, Warren App. No. CA98-06-072. This is especially true when the injury results from simple human error. Gentry v. Craycraft, supra, P 14.

[*P7] Since there was no evidence that appellee acted either intentionally or recklessly when the rope she held slipped before the harness device could lock it in place, the trial court correctly concluded she was entitled to summary judgment on appellant’s claim.

[*P8] Accordingly, appellant’s assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.KENNETH A. ROCCO JUDGE

JAMES J. SWEENEY, P.J. and

DIANE KARPINSKI, J. CONCUR

N.B. This entry is [**4] an announcement of the court’s decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court’s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court’s announcement of decision by the clerk per App.R. 22(E). See, also, S. Ct. Prac.R. II, Section 2(A)(1).

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