Confusing underlying reason for filing a lawsuit against a gymnastics’ studio for questionable injuries gets slammed by the Ohio Appellate court.

Posted: June 5, 2023 | Author: Recreation Law | Filed under: Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue), Uncategorized | Tags: Diva Gymnastics Academy, Gymnastics, Gymnastics Academy, minors, Ohio, Release, Release Law, Waiver |1 Comment

Plaintiffs argued the injuries to their children were caused by the gym instructors attempting to get back at the parents.

Campagna-McGuffin v. Diva Gymnastics Acad., Inc., 199 N.E.3d 1034 (Ohio App. 2022)

State: Ohio; Court of Appeals of Ohio, Fifth District, Stark County

Plaintiff: Angela Campagna-McGuffin, as legal guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and Shelly Benson, as legal guardian of Jocelynn Benson

Defendant: Diva Gymnastics Academy, Inc., Travis Seefried

Plaintiff Claims: Negligence

Defendant Defenses: Release, Assumption of the Risk

Holding: For the Defendant

Year: 2022

Summary

Parents of kids studying at a gymnastics studio were thrown out of the gym. The parents sued claiming the gym was getting back at the kids by exercising them for too long and hard causing injuries. However, in deposition, the kids said they were sore but not injured. The parents also signed a release that stops claims by minors in Ohio.

Facts

On June 25, 2020, appellants Angela Campagna-McGuffin, as legal guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and Shelly Benson, as legal guardian of Jocelynn Benson, filed a complaint against appellee Diva Gymnastics Academy, Inc., alleging negligence, negligent supervision, bodily injury with mental anguish, and loss of consortium. Diva is owned and operated by Dr. Lisa Ford (“Ford”).

Appellants McGuffin, Bagnola, and Benson filed their first amended complaint on September 23, 2020, adding appellee Travis Seefried, the head coach at Diva, as a defendant, and alleging the following claims: negligence, negligent supervision, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium.

Appellants, who brought these claims on behalf of their daughters, alleged that, between 2017 and 2019, their daughters were injured as a result of excessive conditioning they were made to do by Seefried and Diva. Specifically, appellants allege they had to do excessive frog jumps, excessive butt scoots, excessive v-ups, and hang on the bars for long periods of time. They allege this extra conditioning amounted to a form of punishment, which breached appellees’ duty to teach, train, and instruct according to United States of America Gymnastics (“USAG”) rules, and the duty of ordinary care for conducting gymnastics activities. There are no allegations of any sexual misconduct against appellees.

On November 20, 2020, appellant Felisha Waltz, as legal guardian of Abeka Fouts, filed a complaint under a separate case number, alleging similar conduct and causes of action against appellees. In the second case, appellant Waltz filed a second amended complaint, adding appellant Courtney Hawk, as legal guardian of Samantha Hawk, as a plaintiff in the case.

Appellees filed answers in each of the cases, denying the allegations against them, and arguing appellants filed their cases as a way to seek revenge on appellees. Specifically, appellees argue that four of the five appellant gymnasts were asked to leave Diva due to inappropriate conduct, such as harassing other gymnasts and disobeying coaches.

…the trial court granted appellees’ motion for summary judgment. The court found: (1) the deposition testimony of appellants contradicts their claims that they suffered physical injury, and appellants have provided no evidence that they suffered a physical injury as a result of appellees’ conduct; (2) appellants’ claims are barred by the Ohio Recreational Activity Doctrine because appellants accepted the risks inherent in the sport by engaging in competitive gymnastics; and (3) appellants acknowledged the inherent risk and expressly assumed the risk by signing “Release, Indemnification, and Hold Harmless Agreements.”

Analysis: making sense of the law based on these facts.

This was an interesting case to read and is still puzzling as to the real motive for the lawsuit. Where the lawsuit failed is the complaint said the students were injured by the actions of the defendants, yet in testimony during depositions, the students stated they were not injured.

This also extended to the affidavits filed by the plaintiffs supporting those injury claims. The affidavits were excluded from the record (struck) because they conflicted with the testimony in the depositions. Meaning the depositions of the plaintiffs were taken. The defendant filed a motion for summary judgment and in response to the defendant’s motion for summary judgment; they supplied affidavits supporting their response. The court found the affidavits were conflicting (and obviously self-serving) so the affidavits were struck.

Affidavits that are inconsistent with earlier deposition testimony are subject to being stricken. “An affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat the motion for summary judgment.” Byrd v. Smith. Further, “[w]hen determining the effect of a party’s affidavit that appears to be inconsistent with the party’s deposition and that is submitted either in support of or in opposition to a motion for summary judgment, a trial court must consider whether the affidavit contradicts or merely supplements the deposition.”

This is an extremely rare action on behalf of the court. Thus, the court found the action of the plaintiff in doing this to be beyond reasonable. The court went so far as to review the depositions and point out the inconsistencies in the affidavits.

The trial court provided a detailed description of how each of the affidavits contradicts the affiant’s deposition testimony. Appellants contend the affidavits were merely condensed versions of each affiant’s deposition testimony, and the affidavits did not contradict the deposition testimony. This Court has reviewed each of the depositions and affidavits at issue. We find the trial court did not abuse its discretion in determining the affidavits contradict the depositions, and concur with the trial court’s analysis in striking each of the affidavits.

The courts’ actions were fully supported by the appellate court.

The court then dived into the legal issues of the appeal. The court held that in Ohio, there were three ways to sue for injuries that arose from recreational sporting activities. “Three standards are used to permit recovery for injuries received during sports and recreation activities: (1) intentional tort; (2) willful or reckless misconduct, and (3) negligence.”

Here the plaintiff claimed the defendant was negligent. Ohio, like most other states, has the following requirements to prove negligence.

In order to establish a cause of action for negligence, a plaintiff must demonstrate: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) and the plaintiff suffered injury proximately caused by the defendant’s breach of duty.

Ohio has the same defenses as most other states to negligence claims for sports and recreational activities. Assumption of the risk is a defense to a claim of negligence.

However, when a defendant shows the plaintiff assumed the risk of injury through participating in an inherently dangerous activity, the duty of care is eliminated.

Ohio recognizes three types of assumption of the risk: express, primary, and implied assumption of the risk. Primary assumption of the risk is:

Primary assumption of the risk is a defense of extraordinary strength because it essentially means “that no duty was owed by the defendant to protect the plaintiff from that specific risk,” so a “court must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery.” A successful primary assumption of the risk defense means that the duty element of negligence is not established as a matter of law. Thus, the defense prevents the plaintiff from making a prima facie case of negligence. The applicability of the primary-assumption-of-the-risk defense presents an issue of law for the court to decide.

If no duty is owed there can be no breach of a duty, therefore, no negligence. To prove negligence the plaintiff must prove all the elements to win their case. When applied to sports or recreational cases, this relieves the burden on the defendant to protect the players from the risks of the sport.

When individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional.

The primary assumption of risk doctrine defense relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity, because such risks cannot be eliminated. “The types of risks associated with [an] activity are those that are foreseeable and customary risks of the * * * recreational activity.”

Ohio has a test to determine if the risks encountered by the plaintiff were inherent in the sport.

The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires: (1) the danger is ordinary to the game; (2) it is common knowledge the danger exists; and (3) the injury occurs as a result of the danger during the course of the game. “The nature of the sporting activity is highly relevant in defining the duty of care owed by a particular defendant: what constitutes an unreasonable risk, under the circumstances, of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participant’s idea of foreseeable conduct in the course of the game.”

The court must determine for each sport, game, or activity if the injury was a risk of the sport. An example would be badminton. There is probably a risk of being hit by a badminton racquet in the sport, but there is no risk of being injured by being tackled by an opposing badminton player. Football would be just the opposite. A football player assumes the risk of being tackled; however, nothing in the rules or the sport would allow a football player to be hit by a racquet.

The next argument raised by the plaintiff was the activities that gave rise to the injuries in the complaint were not inherent in the sport. The injuries were incurred because of excessive conditioning, which was to punish the participants and their mothers.

The court did not agree with the plaintiff’s arguments.

We first note that not every violation of a sport’s rules meets the negligence standard, and the focus for what constitutes an unreasonable risk of harm under the circumstances involves the examination of both the “rules and customs” associated with the sport that shape the participants’ ideas of foreseeable conduct.

Additionally, none of the testimony or proof offered by the plaintiff supported this argument.

The fact that appellants submitted an expert affidavit opining that appellees engaged in violations of the Safe Sport Policy and that their conduct is “not inherent” in gymnastics activities does not create a genuine issue of material fact in this case.

Since the affidavits were found to be “inconsistent” with the deposition testimony, the affidavits did not prove the injuries caused by excessive training were not inherent to the sport. This means the depositions are given more weight because they are taken under oath and the questions are asked by opposing counsel. Affidavits are sworn statements prepared by the party presenting them and not questioned by opposing counsel.

The appellate court then looked to the defense of express assumption of the risk. The plaintiffs argued the releases, the express assumption of the risk documents, only covered inherent risks of the sport and did not identify the actual risks causing the injuries to the plaintiffs.

Appellants argue the trial court committed error in applying the express assumption of the risk doctrine to bar their claims because the release the parents signed only covers “inherent” risks, and the risks in this case are not inherent to gymnastics; further, that the release failed to identify the precise activity which resulted in injury.

Each appellant-mother signed a document entitled “Release, Indemnification, and Hold Harmless Agreement” (“Release”) prior to any of the incidents alleged in the complaint. Each appellant-mother in this case admitted in their deposition to signing the Release when registering their appellant-daughter for gymnastics at Diva.

A release is a separate defense to primary assumption of the risk. However, a well-written release can also be used to prove primary assumption of the risk. A release must have the legal language or wording needed to meet the requirements in most states of making sure the person signing the release knows and understands they are giving up their right to sue for their injuries. An assumption of the risk document is an acceptance of the risks identified in the document or easily identified by the signor based on education, experience, and knowledge. Consequently, a release can be both a release and an express assumption of the risk.

Ohio allows a parent to sign a release on behalf of a minor, waiving the minor’s right to sue as well as the parents.

Express assumption of the risk is a separate and independent bar to recovery from the doctrine of primary assumption of the risk.

Valid exculpatory clauses or releases constitute express assumption of risk, and is the same as waiving the right to recover. A participant in a recreational activity is free to contract with the proprietor of such activity to relieve the proprietor of responsibility for damages or injuries to the participant caused by negligence, except when it is caused by wanton or willful misconduct. Appellants do not allege wanton or willful misconduct in this case. Parents have the authority to bind their minor children to exculpatory agreements in favor of sponsors of sports activities where the cause of action sounds in negligence.

The court then reviewed the requirements under Ohio’s law for the release to be enforceable. These requirements are the same as most other states.

For express assumption of the risk to operate as a bar to recovery, the party waiving his or her right to recover must make a conscious choice to accept the consequences of the other party’s negligence. The waiver must be clear and unequivocal. Releases from liability are narrowly construed; however, courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms.

Then the court explained how the release signed by the parents met the requirements under Ohio’s law.

In this case, the Release clearly specified the kind of liability released, as the Release contains the word “negligence” multiple times. It also clearly specifies the persons and/or entities being released (Diva, its owners, directors, officers, employees, agents, volunteers, participants, and all other persons or entities acting for them). The language contained in the Release is sufficiently clear and unambiguous such that the express assumption of the risk defense bars recovery.

What is interesting is there is very little discussion in Ohio anymore about whether the release signed by a parent stops a minor from suing.

The plaintiffs then tried to argue that because the word “conditioning” was not in the release, the release should fail for not identifying the risk causing the injury to the youth.

Appellants contend since the word “conditioning” does not appear in the Release, their claims are not barred. However, appellants expressly assumed the risk for “gymnastics, tumbling, cheering, high bars, low bars, beam training, activities, exhibitions, demos and open gym.” Further, the language in the Release states that “risks include, but are not limited to,” the list above. In the second paragraph of the Release, appellants expressly “assume[d] all of the risk inherent in this activity.” By signing the Release, appellants acknowledged gymnastics involves “known and unanticipated risks which could result in physical or emotional injury.”

However, Ohio, like most other states does not need a release to be a specific list of the possible ways someone can get hurt engaging in a sport or recreational activity. That list would make releases thousands of pages long. The release must just identify the fact that there is a risk.

The plaintiffs then argued that the release did not identify the risk of “excessive conditioning” which is not inherent in the sport of gymnastics.

Appellants additionally argue they did not expressly assume liability because the risks suffered by appellants during “excessive conditioning” are not inherent risks within the sport of gymnastics. As noted above, the Release specifically includes “known and unanticipated risks,” including risks that “could result in physical or emotional injury.” Further, as detailed above, the exercises, drills, and conditioning alleged by appellants were normal, routine, and customary during high-level competitive gymnastics training.

Not only did the court find that language was not necessary in the release, the court found came back to the point that earlier the plaintiff had not proven there was excessive conditioning.

We find the language contained in the Release is sufficiently clear and unambiguous. Appellants expressly assumed the risks they describe in their depositions. Accordingly, the express assumption of the risk defense is a separate and independent bar to recovery in this case.

The final issue was the trial court found the plaintiffs did not prove they had suffered any injury.

As an alternative and independent basis for granting summary judgment, the trial court found appellants could not meet the third part of the negligence test, i.e., that appellants suffered an injury proximately caused by appellees’ breach of duty.

The affidavits in support of the cross motions probably did not make the trial court or the appellate court happy when they were so contradictory to the depositions. So, it was easy to rule the plaintiffs did not make their case when they could not prove the actions taken were outside of the normal actions of a gymnastic gym or the fact the youth suffered no injury.

So Now What?

Usually, once an appellate court finds one way to support the trial court’s decision, it ignores the other arguments made by an appellant or appellee. When the appellate court reviews all the issues, it means the legal issues were not properly identified or applied below or the facts of the case are such that the appellant court wants to eliminate any additional attempts to make baseless arguments again.

The court showed how not every possible risk must be in a release. However, the more risk identified in a release, the greater the chance the release can be used as an express assumption of the risk document to stop a lawsuit if the release is found to be void.

For other cases on Ohio law.

In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night

Ohio adopts the requirement that a skier assumes the risk of a collision with another skier.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

Poorly written release on a sign-in sheet barely passes protecting Ohio defendant swimming area from suit.

Release upheld in Ohio to stop negligence claims for indoor ski jumping. However, gross negligence claims survived.

For other case law on a parent’s right to sign away a minor’s right to sue see:

States that allow a parent to sign away a minor’s right to sue

Adult volunteer responsibility ends when the minor is delivered back to his parents.

An example of adults and money getting in the way of kids has fun

As long as there are laws, there will be people trying to get around them.

BSA Summer Camp was able to have punitive damages claim dismissed prior to trial

Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims? Maybe, but only by omission, not by intent I believe.    http://rec-law.us/2qTjjBw

First of a kind! A release written so badly the assumption of risk language stopped the release from working for one defendant and did not cover the minors because the release did not name them.

Iowa does not allow a parent to sign away a minor’s right to sue.

Is being overprotective putting our kids at risk

Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.

New Jersey does not allow a parent to sign away a minor’s right to sue so a binding arbitration agreement is a good idea, if it is written correctly.

New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.    http://rec-law.us/2r7ls9l

North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations

North Dakota decision allows a parent to sign away a minor’s right to sue.

Paranoia can only get you so far, and then you get into the absurd.

Poorly written release on a sign-in sheet barely passes protecting Ohio defendant swimming area from suit.

Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause.

The Boy Scouts of America are not liable because they owed no duty, they did not own the camp

This article takes a real look at the risks parents allow their children to face

Virgin Islands court upholds release to stop claims by a minor against a program providing benefits for youth

You’ve got to be kidding: Chaperone liable for the death of girl on a trip

What do you think? Leave a comment.

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

Copyright 2022 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

G-YQ06K3L262

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

---