Chapple, Et Al., v. Ultrafit Usa, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

Chapple, Et Al., v. Ultrafit USA, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

Roger Chapple, Et Al., Plaintiffs-Appellants -vs- Ultrafit Usa, Inc., Et Al., Defendants-Appellees

Case No. 01-CAE-08037

COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, DELAWARE COUNTY

2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

March 18, 2002, Date of Judgment Entry

PRIOR HISTORY: [*1] CHARACTER OF PROCEEDING: Appeal from the Delaware County, Common Pleas Court, Case No. 00-CVC-06-270.

DISPOSITION: Trial court’s grant of defendants-appellees’ motion for summary judgment was affirmed.

COUNSEL: For Plaintiffs-Appellants: JOHN A. YAKLEVICH, Columbus, Ohio.

For Defendants-Appellees: MARK PETRUCCI, Columbus, Ohio.

JUDGES: Hon. Sheila G. Farmer, P.J., Hon. Julie A. Edwards, J., Hon. John F. Boggins, J. Boggins, J., Farmer, P.J., and Edwards, J. concur.

OPINION BY: John F. Boggins

OPINION

Boggins, J.

This is an appeal from a Summary Judgment ruling of the Delaware County, Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

The facts underlying this case are that appellant Roger Chapple was an employee of the Ohio Department of Natural Resources, Division of Parks and Recreation (O.D.N.R.). Appellee Ultrafit, Inc. through its president, appellee Jeffrey Sheard is engaged in organizing and promoting events such as triathlons. One of these contests was set for June 28, 1998 at Alum Creek State Park. Appellees had made application to the O.D.N.R. to use the facilities, including employees of O.D.N.R. on June 28, 1998 to conduct a triathlon. Appellant signed up per O.D.N.R. procedure to work the event. John Williamson, crew leader for O.D.N.R. set the work schedule which [*2] included appellant’s duties. (Appellant’s deposition at p.14). Appellant had no contact with appellees on 6/28/98 prior to his injury. Due to severe weather, the triathlon’s starting time was delayed until about 9:30a.m. when the weather had improved. Due to the late start, the race was shortened. Near the end of the shortened event, appellant Roger Chapple was rolling a hose on an abandoned leg of the race and was struck by lightning and injured. Appellant, Joyce Chapple, spouse of Roger Chapple is joined on a loss of consortium basis. The issues are whether appellees owed a duty to Roger Chapple, was he an employee of O.D.N.R. or other status, and if a duty of care existed, did it require a postponement or cancellation of the event. Appellees filed a Motion for Summary Judgment on April 11, 2000 which was set for a non-oral hearing with appellants memorandum in opposition filed May 8, 2000, and a reply subsequently filed. After careful consideration of all materials available to the trial court, it sustained appellee’s motion.

ASSIGNMENT OF ERROR

The sole Assignment of Error is:

I.

THE TRIAL COURT ERRED IN RENDERING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS-APPELLEES WHERE [*3] THE DEFENDANT-APPELLEES OWED A DUTY OF CARE TO PLAINTIFFS-APPELLANTS AND GENUINE ISSUES OF FACT EXISTED CONCERNING DEFENDANTS-APPELLEES’ BREACH OF THAT DUTY.

SUMMARY JUDGMENTS

Civ.R. 56(C) states, in pertinent part:

[HN1] Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law…. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.

[HN2] Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. [HN3] In order to survive a motion for summary judgment, the non-moving party must produce evidence on any issue [*4] to which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, citing Celotex v. Catrett (1986), 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548. [HN4] Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, 36, 506 N.E.2d 212. I. As to the Assignment of Error, even though appellants’ Complaint asserts negligence, gross negligence and wanton and wilful misconduct but his Brief relies solely on negligence. (Appellant’s brief at p. 8). Appellant acknowledges that no Ohio case strictly fits the fact pattern in the case sub judice. Other than the cases citing basic propositions of negligence law, none of the cases cited by either party to this appeal are particularly in point, therefore we must, as the trial court did, review the facts which would support or refute the decision from which the appeal is taken. The deposition of appellant, Roger Chapple, indicates that the weather had cleared by the delayed starting time and that [*5] lightning flashes were to the north of the park. (Appellant’s deposition at p. 26). In the reply brief appellant’s counsel attempts to blame a memory loss for the inability of Roger Chapple to remember that lightning was flashing in his vicinity prior to being struck. (Appellant’s reply brief at p. 2). This conclusion is not supported by appellant’s deposition which demonstrates a clear memory except for short term loss. (Appellant’s deposition at p. 46). The essential issue is whether alleged facts were presented to the trial court indicating a breach of duty of appellees to appellants. [HN5] The existence of a duty is an essential element of negligence action. Grover v. Eli Lilly and Company (1992), 63 Ohio St. 3d 756, 591 N.E.2d 696. [HN6] The foreseeability of injury is obviously a factor to consider under appropriate circumstances. An injury is foreseeable if a reasonably prudent person, under like or similar circumstance knew or should have known that an act or nonperformance of an act was likely to result in harm. Simmers v. Bentley Construction Co. (1992), 64 Ohio St. 3d 642, 597 N.E.2d 504. Here, appellants assert that, because appellee had authority to postpone [*6] or cancel the race, that a duty to appellant existed. The defect in this argument is that the weather had cleared considerably at starting time. Lightning flashes were to the north. Appellant did not believe that danger was present. (Appellant’s deposition at p. 47). Also, if such became a concern, he believed policy dictated that he go to a vehicle. (Appellant’s deposition at p. 40-41). Appellant argues that severe electrical storm activity was present, but his deposition does not support this conclusion. Appellee has reviewed certain theories and applicable cases such as injury to subcontractors, and inherently dangerous activity. These are not applicable under the facts and the appellant being a subcontractor has not been argued. The only aspect of appellant’s position which is close to the decisions in this line of cited cases is one of control by appellee. The control asserted is that appellant was included with the use of the facilities and appellees retained the exclusive ability to cancel or postpone the triathlon. However, no direction occurred. It can only be argued that appellee possessed a general authority to cancel or postpone. In this narrow regard the language of Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 113 N.E.2d 629 [*7] is pertinent even though, it is a subcontractor case. It holds that active participation by the contractor as opposed to a general supervisory role is required. The facts in the case sub judice indicate that Roger Chapple chose to work outside and felt that no danger existed. (Appellant’s deposition at p. 41-42). Roger Chapple believed that park rules provided that he wait in a vehicle if a weather danger existed, (Appellant’s deposition at p. 40-41) even though Mr. Hart disputes the existence of such a policy in his deposition. As stated before, Roger Chapple had no contact with appellees and nothing in any deposition supports direction by appellees. It is asserted that lightning was present during the race and the affidavit of Mr. Williamson is relied on for this assertion. However, such affidavit also places the lightning to the north of the race event. It is also stated that appellees had no access to weather information. However, Mr. Sheard’s deposition indicated that amateur radio operators were at the race and would provide such data if such need arose. (Sheard deposition at p. 38). The facts which the trial court had available is that Mr. Chapple was employed by and paid by [*8] O.D.N.R. His worker’s compensation claim was filed as such rather than as a loaned employee to appellees. It is accurate, however, that [HN7] an employee may institute a third-party negligence action even though a worker’s compensation claim has been filed. George v. City of Youngstown (1942), 139 Ohio St. 591. The essence of appellant’s claim is that appellee had the authority to postpone or cancel the race and that the race was commenced under dangerous weather conditions. We must disagree with the Assignment of Error and conclude, as the trial court did, that there is insufficient support for the existence of a duty, control of the activities of appellant, nor negligence of appellee.

We therefore affirm the decision of the trial court.

By: Boggins, J. Farmer, P.J. and Edwards, J. concur.


Liability of race organizer for State Park Employees?

Legally a complicated issue with no clear answer on how to prevent this issue in the future

Chapple, Et Al., v. Ultrafit USA, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366 (Ohio App. 2002)

Plaintiff: Roger Chapple & Joyce Chapple

Defendant: Appellee Ultrafit, Inc., Jeffrey Sheard

Plaintiff Claims: negligence, loss of consortium

Defendant Defenses: no duty

Holding: for the defendant

I would guess this is a subrogation case. A subrogation claim is based upon the subrogation clause in an insurance policy. This clause gives your insurance company that pays a claim on your behalf to sue someone in your name to recover what the insurance company paid. If you were hurt at work, and worker’s compensation paid a claim on your behalf, worker’s compensation could sue to recover for the damages WC paid.

However, that is just a guess in this case.

This is an interesting fact situation. The plaintiff was an employee of the Ohio Department of Natural Resources, Division of Parks and Recreation, (ODNR). The defendant was running a triathlon in one of Ohio’s state parks. The plaintiff signed up to work the triathlon through normal procedures with ODNR and the park.

The plaintiff had no interaction with the defendant prior to the accident. The triathlon was delayed for a while because of weather issues. Eventually, the triathlon started after a delay. The plaintiff was in the park, rolling a hose in an area where a leg of the race had been when he was struck by lightning. The plaintiff and his spouse sued for their injuries.

The issues are whether appellees owed a duty to Roger Chapple, was he an employee of O.D.N.R. or other status, and if a duty of care existed, did it require a postponement or cancellation of the event.

Summary of the case

The court first looked at many factual issues that were pled at the appellate level that were in conflict with the deposition of the plaintiff. (Plaintiff on appeal said one thing and during his deposition said something else.) Although the court made note of those issues to deny arguments of the plaintiff, no other action was taken.

The issue was whether the defendant was negligent. The negligence argument was centered on whether the defendant owed a duty to the plaintiff. The first part of that argument was whether the injury was foreseeable.

The existence of a duty is an essential element of negligence action. The foreseeability of injury is obviously a factor to consider under appropriate circumstances. An injury is foreseeable if a reasonably prudent person, under like or similar circumstance knew or should have known that an act or nonperformance of an act was likely to result in harm. Here, appellants assert that, because appellee had authority to postpone or cancel the race, that a duty to appellant existed. The defect in this argument is that the weather had cleared considerably at starting time. Lightning flashes were to the north. Appellant did not believe that danger was present.

However, there were a few issues with that argument. The plaintiff knew that during lightning, ODNR had a policy that he was to return to his vehicle. The argument made by the defendant was, there was no obvious lightning around the plaintiff, the lightning had all moved to the north. The final issue was who had control to cancel the event. The plaintiff argued that it was solely under the control of the defendant.

The control asserted is that appellant was included with the use of the facilities, and appellees retained the exclusive ability to cancel or postpone the triathlon. However, no direction occurred. It can only be argued that appellee possessed a general authority to cancel or postpone.

None of those arguments were persuasive with the court.

The facts in the case sub judice indicate that Roger Chapple [plaintiff] chose to work outside and felt that no danger existed. Roger Chapple believed that park rules provided that he waits in a vehicle if a weather danger existed, even though Mr. Hart [unknown person] disputes the existence of such a policy in his deposition. As stated before, Roger Chapple had no contact with appellees and nothing in any deposition supports direction by appellees.

Because the plaintiff was an employee of ODNR and not of the race organization, it was clear that the liability for the injury had to be ODNRs. Control of the event was vested with several groups, and the plaintiff was still under the control of ODNR. “We must disagree with the Assignment of Error and conclude, as the trial court did, that there is insufficient support for the existence of a duty, control of the activities of appellant, nor negligence of appellee.”

So Now What?

If you are organizing events, you should always clarify who is responsible for what and who will ensure what. Here, clarification that ODNR is responsible for ODNR’s employees might have eliminated this issue.

However, who else would ever be in control of someone else’s employee is interesting. If someone is wearing a uniform, that person is the responsibility of the person issuing the uniform.

Another option is to always have volunteers sign a release. All volunteers should sign a release just so volunteers do not sue other volunteers.

This is an interesting case and possible ODNR procedures, and paperwork would not allow you to clarify the liability issues further. Government paperwork is difficult to modify. Sometimes, you just have to rely on insurance.

What do you think? Leave a comment.

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

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Ohio Department of Natural Resources, Division of Parks and Recreation, ODNR, Alum State Park, Triathlon, Ultrafit Usa, Inc., Volunteer, Race, Lightning,

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

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

Release stops suit for falling off horse at Colorado summer Camp

Florida

Florida Statute § 744.301 (3)

New Florida law allows a parent to sign away a child’s right to sue for injuries

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Delaware

Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Delaware decision upholds a release signed by a parent against a minor’s claims

Delaware holds that mothers signature on contract forces change of venue for minors claims.

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

Minnesota decision upholds parent’s right to sign away a minor’s right to sue.

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

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

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

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

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 voided all releases in the state

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741

Ruling is by the Federal District Court and only a preliminary motion

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

What do you think? Leave a comment.

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

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Keywords: #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #minor, #release, #ParentSignature, #NC, #NorthCarolina,#Alaska, #AK, #AZ, #Arizona, #CO, #Colorado, #Florida, #FL, #CA, #California, #MA, #Massachusetts, #Minnesota, #MN, #ND, #NorthDakota, #OH, #Ohio, #WI, #Wisconsin, #Hohe, #SanDiego, #SanDiegoUnifiedSchoolDistrict, #GlobalTravelMarketing, #Shea, #Gonzalez, #CityOfCoralGables, #Sharon, #CityofNewton, #Moore, #MinnesotaBaseballInstructionalSchool, #McPhail, #BismarkParkDistrict, #Zivich, #MentorSoccerClub, #Osborn, #CascadeMountain, #Atkins, #SwimwestFamilyFitnessCenter, Delware,

WordPress Tags: States,State,Statute,Restrictions,Alaska,areas,injuries,Arizona,Equine,Activities,Colorado,Release,horse,Camp,Florida,Case,California,Hohe,Diego,Dist,Rptr,Delaware,Hong,Hockessin,Athletic,Club,Super,LEXIS,decision,signature,venue,minors,Global,Travel,Shea,Allows,arbitration,Gonzalez,Coral,Gables,government,entities,Massachusetts,Sharon,Newton,Mass,Minnesota,Baseball,Instructional,School,Minn,Unpub,North,Dakota,McPhail,Bismarck,Park,District,Ohio,Zivich,Mentor,Soccer,Appellate,Wisconsin,Osborn,Cascade,Mountain,Wisc,Atkins,Swimwest,Center,Edge,Carolina,America,Federal,Court,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Blog,Mobile,Site,Keywords,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camps,Youth,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,ParentSignature,NorthCarolina,NorthDakota,SanDiego,SanDiegoUnifiedSchoolDistrict,CityOfCoralGables,CityofNewton,MinnesotaBaseballInstructionalSchool,BismarkParkDistrict,MentorSoccerClub,CascadeMountain,SwimwestFamilyFitnessCenter,Delware


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

Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872

In order to recover in a collision on the ski slope the plaintiff must prove the defendant’s actions were reckless or intentional.

This case is between an injured adult and a young snowboarder. The snowboarder and his friends were on the same slope as the adult and his friends. The snowboarders went through the terrain park and upon exiting collided with the plaintiff.

The plaintiff sued for his injuries. The trial court dismissed the complaint based on the assumption of the risk. The plaintiff appealed, and the appellate court reversed the trial court agreeing with the plaintiffs that the Ohio statute created liability on the part of skiers and boarders for any collision.

The Ohio Supreme Court also sent the case back to the trial court but only to determine if the actions of the defendant snowboarder were reckless or intentional. The Supreme Court found that the statute in question, Ohio R.C. 4169.08 or 4169.09 only applied to the ski areas and did not apply to skiers and boarders.

So?

Once the Supreme court held that the statute did not apply, the legal issue was easily decided. The statute in question stated that skiing was a hazardous sport regardless of the safety measures that could be taken.

Under Ohio’s law on sports had held that:

[w]here 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

In Ohio, primary assumption of the risk means that a “defendant owes no duty whatsoever to the plaintiff.” The assumption is limited to those risks directly associated with the activity. “To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.”

The court then held:

Accordingly, we hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

So Now What?

Ohio joins most other states with ski areas that require more than simple negligence on the part of the defendant for the plaintiff to recover for a collision on the slopes.

Without this standard of care, the risk of the sport would be totally removed, and skiers and boarders would enter a turnstile before they could enter the slope.

All sports have risk and if you are not willing to accept the risk of the sport then you should search for a sport that has risks that are what you can deal with. Checkers or chess are what I would suggest, although you could be hit by an angry knight if your opponent loses their temper.

 

Ski Area: Boston Mills Ski Area

Plaintiffs: Angel Horvath and Eugene Horvath

Defendants: David Ish, Tyler Ish and their cousins

Plaintiff Claims: Plaintiff had acted negligently, carelessly, recklessly, willfully, and wantonly in causing the collision with Defendant

Defendant Defenses: Assumption of the Risk

Holding: Reversed and sent back to determine if the defendant acted intentional or recklessly when he collided with the plaintiff.

 

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Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872

Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872

Horvath Et Al., Appellees, v. Ish Et Al., Appellants.

No. 2011-1089

Supreme Court of Ohio

2012 Ohio 5333; 2012 Ohio LEXIS 2872

April 25, 2012, Submitted

November 20, 2012, Decided

NOTICE:

THIS SLIP OPINION IS SUBJECT TO FORMAL REVISION BEFORE IT IS PUBLISHED IN AN ADVANCE SHEET OF THE OHIO OFFICIAL REPORTS.

PRIOR HISTORY: [**1]

APPEAL from the Court of Appeals for Summit County, No. 25442, 194 Ohio App. 3d 8, 2011 Ohio 2239, 954 N.E.2d 196.

Horvath v. Ish, 194 Ohio App. 3d 8, 2011 Ohio 2239, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907 (Ohio Ct. App., Summit County, 2011)

DISPOSITION: Judgment affirmed.

CORE TERMS: skier, skiing, sport, ski-area, collision, ski, inherent risks, tramway, negligence per se, slope, ski area, passenger, reckless, standard of care, statutory duties, statutory schemes, owe, common law, summary judgment, owed, duty of care, personal-injury, refrain, trail, ordinary care, general assembly, reasonable care, recreational, enumerated, sentence

HEADNOTES

Torts–Sport or recreational activity–Skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

SYLLABUS

OF THE COURT

Skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

COUNSEL: Paul W. Flowers Co. and Paul W. Flowers; and Sennett Fischer, L.L.C., and James A. Sennett, for appellees.

Gallagher Sharp, Timothy J. Fitzgerald, and Jeremy V. Farrell, for appellants.

JUDGES: LUNDBERG STRATTON, J. O’CONNOR, C.J., and O’DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. PFEIFER, J., concurs in part and dissents in part.

OPINION BY: LUNDBERG STRATTON

OPINION

Lundberg Stratton, J.

I. Introduction

[*P1] The issue before the court is what duty or standard of care is owed by one skier to another for purposes of determining tort liability. We hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

[*P2] The court of appeals reversed the trial court’s grant of summary judgment in favor of Ish and remanded the case to the trial court [**2] to determine whether Ish had violated any duties under R.C. 4169.08 or 4169.09 and if he did, whether negligence per se applied. The court of appeals also held that a genuine issue of material fact existed whether Ish was reckless. Horvath v. Ish, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 18 (9th Dist). We agree that there is a genuine issue of material fact, but only whether Ish’s actions were more than negligent, that is, whether his actions were reckless or intentional under the common law. Therefore, we affirm the judgment of the court of appeals, albeit on somewhat different grounds, and remand the case to the trial court for proceedings consistent with our opinion.

II. Facts and Procedural History

[*P3] On March 6, 2007, Angel Horvath and Eugene Horvath (the couple were married after the accident but before the complaint was filed) were skiing at Boston Mills ski resort. David Ish was snowboarding at Boston Mills on that same date, with his brother, Tyler, and their cousins. In the early evening, Angel and Eugene were skiing down Buttermilk Hill. David, Tyler, and their cousins were snowboarding on the same hill. David and his relatives proceeded through a terrain park 1 [**3] and then reentered Buttermilk Hill, where David and Angel collided. Angel was injured in the accident.

1 A terrain park is an area where snowboarders and skiers can do tricks or stunts using various features including jumps, rails, and half-pipes. See R.C. 4169.01(I).

[*P4] The Horvaths filed a complaint against David Ish and his parents, alleging that David had acted negligently, carelessly, recklessly, willfully, and wantonly in causing the collision with Angel.

[*P5] The Ishes filed a motion for summary judgment, arguing that skiers are subject to primary assumption of the risk, which means that a defendant owes no duty of ordinary care to plaintiff. Thus, the Ishes argued that in order to recover, the Horvaths were required to prove that David had acted recklessly or intentionally in causing the collision. The Ishes further asserted that there was no evidence that David’s actions were reckless or intentional.

[*P6] In opposing the Ishes’ motion for summary judgment, the Horvaths argued that R.C. 4169.08(C) imposes specific duties on skiers and that breaching those duties is negligence per se. The trial court granted the Ishes’ motion for summary judgment.

[*P7] In a two-to-one decision, the court of appeals [**4] reversed the judgment of the trial court, stating that “[b]y reading R.C. 4169.08(C) in context with 4169.09, we find that it is evident that the legislature intended that skiers would be liable for injuries caused to others while skiing.” Horvath, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 13. The court of appeals remanded the cause to the trial court to determine whether David Ish’s actions violated any of the responsibilities described in R.C. 4169.08(C) and, if so, whether any such violation invoked the doctrine of negligence per se. Id. at ¶ 14.

[*P8] This case is before this court pursuant to the acceptance of the Ishes’ discretionary appeal. 129 Ohio St. 3d 1503, 2011 Ohio 5358, 955 N.E.2d 386.

III. Analysis

R.C. Chapter 4169

[*P9] We begin our analysis by determining whether R.C. 4169.08 and 4169.09 apply to personal-injury litigation between skiers.

[*P10] When interpreting a statute, a court’s paramount concern is legislative intent. State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395, 2003 Ohio 1630, 786 N.E.2d 39, ¶ 12. “[T]he intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express [**5] plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation ” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. However, “[i]n reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body.” State v. Wilson, 77 Ohio St.3d 334, 336, 1997 Ohio 35, 673 N.E.2d 1347 (1997). “A court must examine a statute in its entirety rather than focus on an isolated phrase to determine legislative intent.” Massillon City School Dist. Bd. of Edn. v. Massillon, 104 Ohio St.3d 518, 2004 Ohio 6775, 820 N.E.2d 874, ¶ 37.

[*P11] See also R.C. 1.42. With this guidance in mind, we examine R.C. Chapter 4169 in its entirety to determine whether R.C. 4169.08 and 4169.09 apply to personal-injury litigation between skiers.

[*P12] R.C. 4169.02 established a ski-tramway board that is authorized to create rules under R.C. Chapter 119 relating to “public safety in the construction, maintenance, mechanical operation, and inspection of passenger tramways.” 2 R.C. 4169.03 requires that a tramway must be registered [**6] with the board before it can be operated. R.C. 4169.04 provides that tramways must be inspected. R.C. 4169.05 authorizes the board to hear complaints that the construction, maintenance, or mechanical operation of a tramway endangers public safety. R.C. 4169.06 permits a board member to suspend the operation of a tramway if the board determines that an “immediate danger exists.” R.C. 4169.07 provides that ski-area operators are responsible for any tramway they construct and for the maintenance and operation of a passenger tramway in the operator’s ski area. R.C. 4169.07 also states that passengers have certain enumerated responsibilities regarding their use of tramways. R.C. 4169.99 provides that ski-area operators are subject to a monetary fine if they fail to register their tramway with the board, fail to comply with an order from the board, or fail to comply with a rule issued by the board.

2 A “passenger tramway” is “a device used to transport passengers uphill, whether on skis or other devices or without skis or other devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains, or belts or by ropes, and that is usually supported by trestles or towers [**7] with one or two spans.” R.C. 4169.01(F). Chair lifts, rope tows, and conveyors are passenger tramways. R.C. 4169.01(F)(3), (5), and (7).

[*P13] R.C. 4169.08 insulates ski-area operators from liability for injuries that arise from the inherent risks of skiing and otherwise defines certain responsibilities applicable to ski-area operators and ski-area visitors. R.C. 4169.09 addresses the liability of ski-area operators and ski-area visitors for failing to comply with the responsibilities enumerated in R.C. 4169.08(C).

[*P14] And, finally, R.C. 4169.10 immunizes ski-area operators for damages suffered by a person who was committing a theft at the time the person suffered the loss.

[*P15] It is evident that R.C. Chapter 4169, when viewed in its entirety, addresses certain obligations and limitations on liability pertaining to ski-area operators, as well as the relationship between ski-area operators and ski-area visitors. Consequently, neither R.C. 4169.08 nor 4169.09 apply to personal-injury litigation between skiers.

[*P16] Our conclusion is confirmed when we examine R.C. 4169.08 and 4169.09 in greater detail. R.C. 4169.08(A)(1) provides that “the general assembly recognizes that skiing as a recreational sport [**8] is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing.” R.C. 4169.08(A)(1) then provides a nonexhaustive list of conditions (e.g., slush) or objects (e.g., out-of-bounds barriers) that are inherent risks of skiing. R.C. 4169.08(A)(2) and (3) provide that ski-area operators are not liable for the death of or injury to ski-area visitors that occur in a freestyle terrain or tubing park, subject to certain qualifications. Thus, R.C. 4169.08(A) effectively insulates ski-area operators from personal-injury lawsuits that arise from the inherent risks of skiing. See Stone v. Alpine Valley Ski Area, 135 Ohio App.3d 540, 545, 734 N.E.2d 888 (11th Dist.1999); Otterbacher v. Brandywine Ski Ctr., Inc., 9th Dist. No. 14269, 1990 Ohio App. LEXIS 4582, 1990 WL 72327, *4 (May 23, 1990).

[*P17] R.C. 4169.08(B) and (C) also state that ski-area operators and skiers have certain enumerated responsibilities. For example, ski-area operators must mark certain snowmaking equipment, and skiers must ski within the limits of their [**9] ability. R.C. 4169.08(B)(1) and (C)(1). And R.C. 4169.09 states that a “ski area operator * * * or skier is liable for injury, death, or loss to person or property * * * caused by the operator’s * * * or skier’s failure to fulfill any of the responsibilities required by this chapter.” Therefore, reading R.C. 4169.08(B) and (C) in context with R.C. Chapter 4169, we find that the responsibilities of ski-area operators and ski-area visitors are reciprocal. In other words, the General Assembly intended that ski-area operators owe skiers certain enumerated responsibilities, and in return skiers owe ski-area operators certain enumerated responsibilities. Thus, we hold that R.C. 4169.08(C) does not create a duty of care that applies between skiers.

[*P18] Accordingly, we hold that R.C. Chapter 4169, and in particular, R.C. 4169.08 and 4169.09, do not apply to personal-injury litigation between skiers.

Common Law

[*P19] Having determined that R.C. Chapter 4169 does not apply to personal-injury litigation between skiers, we turn to the common law to determine the proper standard of care applicable between skiers. This court has held that “[w]here individuals engage in recreational or sports activities, they [**10] 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 as defined in [2 Restatement of the Law 2d, Torts, Section 500, and 1 Restatement of the Law 2d, Torts, Section 8A (1965)].” Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus; see also Thompson v. McNeill 53 Ohio St.3d 102, 559 N.E.2d 705. “Obviously, without our stating so, in Marchetti and Thompson we applied ‘primary’ assumption-of-risk principles in limiting the defendant’s liability.” Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, 802 N.E.2d 1116, ¶ 11. Primary assumption of the risk means that a defendant owes no duty whatsoever to the plaintiff. Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431-432, 1996 Ohio 320, 659 N.E.2d 1232 (1996).

[*P20] Clearly, skiing is a sport or recreational activity. However, “only those risks directly associated with the activity in question are within the scope of primary assumption of risk.” Id. at 432, citing Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 3 Ohio Law Abs. 164, 147 N.E. 86 (1925). “To be covered under the [primary-assumption-of-the-risk] doctrine, the risk [**11] must be one that is so inherent to the sport or activity that it cannot be eliminated.” Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005 Ohio 7009, 844 N.E.2d 408, ¶ 19 (6th Dist), citing Westray v. Imperial Pools & Supplies, Inc., 133 Ohio App. 3d 426, 432, 728 N.E.2d 431 (6th Dist.1999). Where the risk at issue is not inherent, then a negligence standard applies. See Gallagher at 432; see also Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005 Ohio 4744, 2005 WL 2179317 (colliding with a truck on a road is not an inherent risk of riding an all-terrain vehicle); Goffe v. Mowell, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308, 1999 WL 55693 (Feb. 5, 1999) (faulty racetrack design is not an inherent risk of go-cart racing).

[*P21] The Supreme Court of Pennsylvania has recognized that “other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions. As anyone who has ever undertaken the sport of skiing is painfully aware, it is a sport in which it is common for the participants to lose control.” Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511, 762 A.2d 339 (2000). Other courts have also recognized that collisions [**12] between skiers are an inherent risk in the sport of skiing. See Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790, 793 (Minn.App.2007); Cheong v. Antablin, 16 Cal.4th 1063, 1069, 68 Cal. Rptr. 2d 859, 946 P.2d 817 (1997); Gern v. Basta, 809 N.Y.S.2d 724, 725, 26 A.D.3d 807 (2006). We agree that collisions between skiers are an inherent risk of skiing.

[*P22] Accordingly, we hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

IV. Conclusion

[*P23] The judgment of the court of appeals is affirmed, albeit on somewhat different grounds. We agree that there is a genuine issue of material fact to be considered, but only with regard to whether Ish’s actions were more than negligent, that is, whether he acted recklessly or intentionally. Because a genuine issue of fact remains, the court of appeals was correct in holding that the trial court erred in granting summary judgment. Therefore, we affirm the appellate court’s judgment, and we remand this cause to the trial court for further proceedings in accordance with this opinion.

Judgment affirmed.

O’Connor, C.J., and [**13] O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.

Pfeifer, J., concurs in part and dissents in part.

CONCUR BY: PFEIFER (In Part)

DISSENT BY: PFEIFER (In Part)

DISSENT

Pfeifer, J., concurring in part and dissenting in part.

[*P24] I concur in the majority’s judgment affirming the appellate court’s decision to reverse the trial court’s granting of summary judgment. However, I do not agree with the majority’s baffling interpretation of R.C. 4169.08 and 4169.09. I also do not agree that there is no common-law duty of care between skiers. If legal issues were ski slopes, the one raised in this case would be a bunny hill. Somehow, the majority has careened down the hill and wound up smashed through the wall of the lodge.

A Skier’s Statutory Duties

[*P25] The fact that R.C. Chapter 4169 tends to limit the liability of ski-area operators from liability for injuries suffered by skiers does not mean that it leaves skiers without protection from other skiers. It makes perfect sense that a piece of legislation that shields ski-area operators from liability would also set forth a duty of care between skiers that would leave skiers, not ski facilities, liable for injuries they cause other skiers. Other states-Colorado (Colo.Rev.Stat.Ann. 33-44-109), [**14] Idaho (Idaho Code 6-1106), Maine (32 Maine Rev.Stat.Ann. 15217), Michigan (Mich.Comp.Laws Ann. 408.344), New Mexico (N.M.Stat.Ann. 24-15-10), and West Virginia (W.Va. Code Ann. 20-3A-8), for instance, manage to achieve that balance in their ski-safety statutory schemes. That balance is part of the prevailing view in states with ski statutes:

In a skier collision case, the laws differ from state to state on the duty of care one skier owes to another. The jurisdictions can be divided into two classifications. The prevailing view holds skiers to a standard of reasonable care to avoid injury to another skier. The standard of care is usually founded on a statutory principle obliging a skier to exercise reasonable care and to yield the right of way to the skier below. One skier does not assume the risk of another’s negligence; a skier collision is not a risk “inherent” in the sport as skiing is not a contact sport.

46 American Jurisprudence Proof of Facts 3d 1, Liability of Skier for Collision with Another Skier, Section 2 (1998).

[*P26] The duties between skiers, understood since Norwegians first strapped planks to their feet 4,500 years ago–ski under control and do not run into another skier, among [**15] others–are now part of Ohio statutory law. Those duties are set forth in R.C. 4169.08:

(C) A skier shall have the following responsibilities:

(1) To know the range of the skier’s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier’s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;

(2) To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall.

[*P27] Contrary to the majority’s assertion, it is possible for the General Assembly in one statutory chapter to protect ski-area operators from liability while at the same time providing some protection for skiers. R.C. 4169.08(C)(2) specifically states that skiers have responsibilities to avoid causing injuries to or colliding with another person, but the majority states that [**16] those responsibilities are owed to ski-area operators, not other persons. R.C. 4169.08(C)(3) requires a person who is involved in a ski accident that injures another to identify himself before leaving the scene, presumably so that the person causing the collision can live up to his responsibilities.

[*P28] But it is R.C. 4169.09 that makes it crystal clear that a skier is liable for injuries he causes to other skiers by failing to meet the duties set forth in R.C. 4169.08(C): “A * * * skier is liable for injury, death, or loss to person or property caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter.” How can the majority ignore this simple statutory statement? How can this mean anything other than that a skier is liable for injuries suffered by another person as a result of the skier’s failure to meet his statutory responsibilities? Why does this sentence appear in the statute if it does not establish responsibilities between skiers?

[*P29] If R.C. 4169.08 sets forth only duties between skiers and ski-area operators, the second sentence in R.C. 4169.09 would be sufficient to shield the ski area from liability. The second sentence of R.C. 4169.09 makes [**17] it clear that the ski-area operator is not liable for a skier’s injuries caused by another skier: “A ski area operator * * * is not liable for injury * * * caused by another’s failure to fulfill any of the responsibilities required of another by this chapter.” In blunt terms, an injured person’s only recourse is against the person who caused the injury.

[*P30] Finally, R.C. 4169.09 states that “[a] * * * skier is not entitled to recover for injury * * * caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter.” That is, if a skier’s injuries are caused by his own failure to meet his statutory responsibilities, he has recourse against no one.

[*P31] Read as a whole, R.C. 4169.09 states that if a skier violates his responsibilities, he is liable for injuries caused to another, that the ski-area operator is not liable for those injuries, and that a skier who causes his own injuries is not entitled to recover from another, including a ski-area operator, for his injuries. The statute provides protection from liability for ski-area operators from something they cannot control–the behavior of individual skiers–while at the same time making skiers responsible for [**18] injuries they cause for failing to abide by the basic rules of skiing. Only this interpretation provides meaning to all three of the sentences that make up R.C. 4169.09.

Liability for Breach of Skier’s Statutory Duty in Michigan

[*P32] In Rusnak v. Walker, 273 Mich.App. 299, 729 N.W.2d 542 (2006), the court–a special panel called pursuant to Michigan law to resolve an appellate conflict–addressed whether a skier could sue another skier pursuant to Michigan’s Ski Area Safety Act (“SASA”). The statutory scheme in Michigan is substantially similar to Ohio’s. The Michigan law places duties on skiers to ski safely and not injure other skiers, Mich.Comp.Laws Ann. 408.341 and 408.342, and assigns liability for injuries caused by skiers who violate those duties. (“A skier * * * who violates this act * * * shall be liable for that portion of the loss or damage resulting from that violation”). Mich.Comp.Laws Ann. 408.344.

[*P33] But Michigan’s statutory scheme contains an important provision missing from Ohio’s: it lists “collisions * * * with other skiers” as one of the inherent risks of skiing. Mich.Comp.Laws Ann. 408.342. Such a provision is absent from Ohio’s statutory declaration of the inherent risks [**19] of skiing. R.C. 4169.08(A).

[*P34] Even so, the Michigan court held that despite a statutory recognition that colliding with other skiers is an inherent danger of skiing, a skier could recover for injuries caused by another skier’s failure to live up to the responsibilities set forth in the SASA:

As we have already noted, we hold that the SASA assumption-of-risk provision contains clear and unambiguous language, providing in no uncertain terms that a collision between skiers is an obvious and necessary danger that inheres in the sport of skiing. However, in those cases in which a plaintiff can establish that a defendant violated one of the specific duties imposed by the SASA, the plaintiff can still recover damages to the extent that the defendant’s violations caused the plaintiffs injuries. To state it differently, it is possible, and therefore skiers assume the risk, that a collision can occur between skiers when neither skier is violating his or her duties under the SASA. That is, it is an obvious and necessary danger of skiing that sometimes accidents simply happen. But, again, if it can be shown that the collision resulted from a violation of the act, then the violator is to be held liable [**20] for the damage caused, as provided under [Mich.Comp.Laws Ann.] 408.344.

Rusnak, 273 Mich.App. at 305, 729 N.W.2d 542.

[*P35] The court noted in Rusnak that if it were to hold that there is no liability for injuries to a skier caused by another skier’s failure to meet his or her statutory duties, “the duties and liabilities placed on individual skiers would have no meaning.” Id. at 309. But the majority does in this case what Rusnak warns against, finding that the statutory provision–“A * * * skier is liable for injury, death, or loss to person or property caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter”–is meaningless.

Ordinary Care

[*P36] In its remand to the trial court, the court of appeals suggested that the trial court should consider whether David Ish violated any of the duties outlined in R.C. 4169.08(C) and, if so, whether the violation would constitute negligence per se. Horvath v. Ish, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 14. Violation of a statutory duty is not necessarily negligence per se, and it is not in this case.

[*P37] To successfully prosecute a claim for negligence, a plaintiff must prove that the defendant owed the plaintiff [**21] a duty, that the defendant breached that duty, and that the breach of the duty proximately caused the plaintiffs injury. Wellman v. E. Ohio Gas Co., 160 Ohio St. 103, 108-109, 113 N.E.2d 629 (1953). “[A] duty may be established by common law, legislative enactment, or by the particular facts and circumstances of the case.” Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565, 1998 Ohio 184, 697 N.E.2d 198 (1998). In certain instances, the failure to perform a statutory duty is negligence per se, meaning that “the plaintiff has conclusively established that the defendant breached the duty that he or she owed to the plaintiff.” Id.

[*P38] But negligence per se does not follow from every violation of a statutory duty; violation of a statute may simply constitute evidence of negligence. “[T]he distinction between the two depends upon the degree of specificity with which the particular duty is stated in the statute.” Sikora v. Wenzel, 88 Ohio St.3d 493, 496, 2000 Ohio 406, 727 N.E.2d 1277 (2000). As this court put it in Swoboda v. Brown, 129 Ohio St. 512, 196 N.E. 274 (1935), paragraph four of the syllabus:

The distinction between negligence and “negligence per se” is the means and method of ascertainment. The former must [**22] be found by the jury from the facts, the conditions, and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance, the only fact for determination by the jury being the commission or omission of the specific act inhibited or required.

That is, when a statute requires performance of specific acts, a jury need only determine whether the specific acts were performed, and if it determines that they were not performed, the defendant is negligent per se; but when the statute instead sets forth general rules of conduct that must be followed, a jury must use its judgment in evaluating the circumstances to determine whether the defendant was negligent. In the latter instance, the typical duty of care for negligence applies:

Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application [**23] and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.

Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954), paragraph one of the syllabus.

[*P39] In this case, the defendant may have violated several of the responsibilities of R.C. 4169.08(C)(1) and (2): failing to ski “within the limits of [his] ability,” failing to “maintain control of [his] speed and course,” failing to “refrain from acting in a manner that may cause or contribute to the injury of another person,” and failing “to refrain from causing collision with any person or object while skiing.” None of the defendant’s violations could be established from the determination of one fact by a trier of fact; the trier of fact would need to consider “the facts, the conditions, and circumstances disclosed by the evidence.” Swoboda at paragraph four of the syllabus. The responsibilities set forth in R.C. 4169.08(C)(1) and (2) are akin to the “rule of conduct” discussed in Eisenhuth; in those instances, negligence per se does not apply, and liability is “determined by the application of the test of due care as exercised by a reasonably [**24] prudent person under the circumstances of the case.” Eisenhuth at paragraph three of the syllabus.

[*P40] Thus, the General Assembly has set forth a statutory duty of ordinary care for skiers. Ingrained in that ordinary-care standard is the recognition that skiers are on skis, are on a slippery surface, and are engaged in a somewhat dangerous activity. R.C. 4169.08(C)(1) and (2) do not require expert ability by all skiers; they require common sense and an appreciation of very basic safety rules of skiing. When a skier fails to use ordinary care to meet the responsibilities set forth in R.C. 4169.08(C), he is liable for any injuries caused by his failure to live up to those rules of conduct, pursuant to R.C. 4169.09.

Common Law

[*P41] As stated above, I dissent from the majority’s holding that R.C. 4169.09 does not recognize a cause of action between skiers. I also dissent from the majority’s holding that a skier must prove that another skier was reckless to successfully assert a common-law claim against another skier. The crux of the majority’s holding regarding the common law is that skiers owe no duty to each other because collisions between skiers are one of the inherent risks of skiing. I disagree [**25] and instead would follow the reasoned approach adopted by the Supreme Court of Connecticut in Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813 (2004), in which the court held that “the standard of care implicated in the context of the sport of skiing is that of a duty to refrain from unreasonable conduct and that liability may attach for negligent behavior.” Id. at 698.

[*P42] Like many other states, Connecticut has a ski-safety statutory scheme; such statutory schemes are like snowflakes-no two are exactly alike. See, e.g., Frakt & Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 Idaho L.Rev. 227, 230 (1992), fn.12. The Connecticut statute at issue in Jagger did not contain the declaration found in the Ohio and Michigan statutes that a skier is liable to another skier for injuries caused by the skier’s failure to meet his or her statutory responsibilities. The Connecticut statute did state that collisions with other skiers are an inherent risk of skiing, Conn.Gen.Stat. 29-212; the court in Jagger found that that provision did not apply to lawsuits between skiers. Jagger, 269 Conn. at 697, 849 A.2d 813, fn. 21.

[*P43] [**26] In Jagger, the court applied a four-part test “to evaluate the various policy considerations relevant to the determination of the extent of the defendant’s duty.” Id. at 700. The court had developed the test in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), to determine the standard of care applicable to participants in a soccer game. The elements of the test include

“(1) the normal expectations of participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.”

Jagger at 700, quoting Jaworski at 407.

[*P44] As for the first factor, the normal expectations of the participants in the sport, I agree with the Jagger court that although ski collisions can be frequent, skiers expect their fellow skiers to abide by the commonly accepted, fundamental rules of skiing:

While collisions with other skiers are fairly common, frequency of occurrence is not the ultimate touchstone in evaluating the expectations of participants in the sport. [**27] Rather, we perceive the expectations of skiers to be that fellow participants in the sport will conduct themselves in a manner befitting the dangerous potentialities attendant with the sport. Thus, skiers will expect that other skiers will follow the rules and generally accepted practices of the sport of skiing. Indeed, our statutory scheme regarding ski liability confirms that skiers should possess such expectations as they take part in the sport. * * * The normal expectations of skiers will be that fellow skiers will ski in a reasonable and appropriate manner.

Id. at 701-702.

[*P45] Like Connecticut’s, our state’s statutory scheme sets forth responsibilities for skiers that should create in the minds of other skiers the expectation that collisions are not an acceptable part of the sport.

[*P46] Further, skiers are reminded by signs throughout ski areas of appropriate behavior. The Skier’s Responsibility Code, promulgated by the National Ski Areas Association, reminds skiers of common safety rules:

Always stay in control, and be able to stop or avoid other people or objects.

People ahead of you have the right of way. It is your responsibility to avoid them.

You must not stop where you obstruct a trail [**28] or are not visible from above.

Whenever starting downhill or merging into a trail, look uphill and yield to others.

Always use devices to help prevent runaway equipment.

Observe all posted signs and warnings. Keep off closed trails and out of closed areas.

Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.

http://www.nsaa.org/nsaa/safety/responsibilitycode (accessed Nov. 1, 2012)

[*P47] Unlike in sports like football, basketball, or soccer, in which contact with other participants is part of the very nature of the sport, contact with another individual in skiing is outside the nature of the sport; any contact at all between skiers transforms skiing into an unacceptably dangerous proposition. The expectation among skiers is that their fellow skiers appreciate that safety is essential for everyone’s enjoyment of the sport.

[*P48] As for the second factor-balancing the encouragement of participation in the sport against concern for the safety of participants-I agree with the court in Jagger that encouraging responsible behavior by skiers tends to encourage participation:

As for the second Jaworski factor, we conclude that the balancing of the public policy of [**29] the encouragement of vigorous participation in the sport of skiing and the protection of the safety of its participants weighs in favor of a negligence standard. We believe that requiring skiers to participate in the reasonable manner prescribed by the rules of the sport actually will promote participation in the sport of skiing. Should the threshold for liability be placed at a level that only reckless or intentional misconduct can serve as grounds for liability, many of the potential harms caused by coparticipants in the sport will go unremedied and, therefore, dissuade potential participants from taking part in the sport. Additionally, a standard of reasonableness also operates to protect the safety of participants in the sport of skiing.

Jagger, 269 Conn. at 702-703, 849 A.2d 813.

[*P49] I agree that there is a minimal price to pay, if any, for increased safety on ski slopes. That skiers could feel safer when skiing would tend to inure to the benefit of participation rates. Colorado, whose economy is much more dependent on skiing than Ohio’s, statutorily recognizes the right of skiers to recover damages from other skiers who cause injuries. Colo.Rev.Stat.Ann. 33-44-109 (“a skier is not [**30] precluded under this article from suing another skier for any injury to person or property resulting from such other skier’s acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another”).

[*P50] The third factor, the potential increase in litigation, is a minimal factor in the analysis. Contact with other skiers is not a regular part of skiing; collisions are rare enough that our courts would not be clogged by claims. As the court recognized in Jagger, this situation might be different in other sports:

For instance, in Jaworski we recognized quite correctly that the imposition of a negligence standard in contact sports would result undesirably in the potentiality of a civil action arising out of any foul, any hit batsman, or any clipping penalty. The same potential for undesirable numbers of civil actions is not present in the context of skiing. As discussed previously, abiding by the rules of the sport of skiing will eliminate the overwhelming majority of contact between skiers.

Id. at 703.

[*P51] The fourth element of the Jaworski test is [**31] a consideration of the law in other jurisdictions. We have the benefit of relying on the court’s well-reasoned decision in Jagger. Jagger relied on Novak v. Virene, 224 Ill.App.3d 317, 321, 586 N.E.2d 578, 166 Ill. Dec. 620 (1991), in which the court stated:

As in the individual sports of running and bicycling, there is the possibility of collisions in downhill skiing. But by one’s participation in the sport, one does not voluntarily submit to bodily contact with other skiers, and such contact is not inevitable. Therefore, the concern that the possibility of a negligence lawsuit would damper vigorous participation is inapplicable to downhill skiing. There is no reason to expand the limited contact sports exception to exempt downhill skiers from negligence liability if they negligently collide with other skiers. Many activities in life are fraught with danger, and absent a specific assumption of risk, one may obtain damages when injured by another’s negligence. Defendant’s conduct should be governed by ordinary negligence standards.

Id. at 321.

[*P52] In a Utah case, Ricci v. Schoultz, 963 P.2d 784, 786 (Utah App.1998), the court held that “a skier does have a duty to other skiers to ski reasonably and within [**32] control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty.” Even though there was no negligence in the Ricci case, the case did hold that negligence was the proper legal standard to apply.

[*P53] Interpreting Vermont law in Dillworth v. Gambardella, 970 F.2d 1113, 1123 (2d Cir.1992), the court held that a skier can be liable to another skier for injuries caused by the skier’s negligence, but made clear that not every collision is caused by negligence:

The law is clear. “[T]he standard of conduct needed to discharge a duty of care in any given situation [is] measured in terms of the avoidance of reasonably foreseeable risks to the person to whom such duty is owed.” Green v. Sherburne Corp., 137 Vt. 310, 403 A.2d 278, 280 (1979). Like all others, skiers owe that degree of care an ordinary prudent person would exercise under like or similar circumstances. See La Faso v. La Faso, 126 Vt. 90, 223 A.2d 814, 817-18 (1966). One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. See, e.g., LaVine v. Clear Creek Skiing Corp., 557 F.2d 730, 734-35 (10th Cir.1977).

Thus, [**33] a jury might conclude that skiers who lose control even while exercising due care-that is, have breached no duty owed to other skiers-may pose a danger which is inherent, obvious and necessary to participants in the sport of skiing. * * * “If the fall is due to no breach of duty on the part of the defendant, its risk is assumed in the primary sense, and there can be no recovery.” Sunday [v. Stratton Corp], [136 Vt. 293, 302], 390 A.2d 398 [(1978)]. Where the facts on assumption and breach of duty are in dispute and more than one reasonable inference may be drawn from them, the question of negligence is for the jury. See La Faso, 223 A.2d at 819.

Id. at 1122. Although a skier does assume some risks of skiing, as for the behavior of other skiers, “the only risks [a] plaintiff * * * could be said to have assumed are those which defendant in the exercise of reasonable care under the circumstances could have avoided.” Id. at 1123.

[*P54] Further, in Peterson v. Chichester, 157 Vt. 548, 600 A.2d 1326 (1991), the Vermont Supreme Court upheld a jury verdict in a collision-between-skiers case in which the negligence of the defendant and comparative negligence of the plaintiff were at issue. Similarly, [**34] in Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991), the Supreme Court of Idaho decided a case involving the negligence of a skier in a collision between skiers.

[*P55] Applying the four Jaworski factors to the sport of skiing leads to the conclusion reached by the court in Jagger: “the proper standard of care owed by coparticipants in the sport of skiing is that of reasonable care.” Jagger, 269 Conn. at 704, 849 A.2d 813. Even assuming that the majority correctly found that no statutory duty exists between skiers in Ohio, it should have found a common-law duty of reasonable care between skiers, as courts in Connecticut, Illinois, Utah, Vermont, and Idaho have done.

Recklessness

[*P56] I dissent from the majority’s holdings that neither Ohio’s ski statutes nor the common law creates a duty between skiers. An accident like the one in this case is not one that a person would assume would take place when undertaking the pleasant family activity of skiing. Children, seniors, beginners, and handicapped people use ski slopes; to require, as the majority does, no greater standard of care than to refrain from recklessness will make Ohio’s ski areas more dangerous for everyone. “[Contact between skiers [**35] is neither a part of the sport that skiers agree to confront by their participation, nor is it an inevitable byproduct of the sport of skiing.” Jagger at 704.

[*P57] However, the majority admits that the defendant is liable for the plaintiffs injuries if he was acting recklessly on the slopes on the day in question. I agree that if recklessness is the standard of care in this case that there is a genuine issue of fact for a trier of fact to determine. There is testimony establishing that the defendant was uphill of Angel Horvath and merging onto the slope in question, looking backward, and making a sudden change of course when he struck her. Evidence supports the plaintiffs’ contention that the defendant violated numerous statutory responsibilities contained in R.C. 4169.08(C), a statute that sets forth fundamental safety rules for skiers. Those rules are basic and essential for skier safety. The flouting of those rules should be considered by a trier of fact in determining recklessness.

Conclusion

[*P58] The trial judge erred by granting summary judgment in a case that presents factual issues for trial. The case has now snowballed into a case that eviscerates a statutory scheme that has well served [**36] the sport and industry of skiing for a long time. The General Assembly ensured that we owe a greater duty, a duty of ordinary care, to each other. The majority has removed that duty and today has made skiing in Ohio appreciably more dangerous. I trust that Ohio’s skiers will not look to this court, but instead to their common sense, their peers, and information provided by ski areas to determine what is acceptable behavior on Ohio’s ski slopes.

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

Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827

More support that the original Zivich decision did not just apply to non-profits or charities.

Many decisions from other states have dismissed Ohio’s court decision upholding the right of a parent to sign away a minor’s right to sue. Several other state courts have dismissed the Ohio decision Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998), decision as “non-persuasive.” These courts have identified the decision as applying only to charities or non-profits to keep insurance costs down.

This decision from an Ohio Appellate court dismisses those ideas and holds a release used by a commercial enterprise signed by a parent on behalf of minor stops the lawsuit by the minor.

This case involved an accident at a cheerleading competition. (Yes, it is outside the normal range of cases I write about; however, it is valuable to the outdoor recreation community.) The plaintiff was 13 years of age and part of a cheerleading team sponsored by a commercial business. This team was not part of a public or private school.

The competition was put on by the defendant. To enter the competition the mother of the plaintiff had to sign a Medical Treatment Authorization and Release of Liability. The language of the release part of the form is included in the decision, but that language barely makes the minimum language necessary to be a release.

The plaintiff was a “base” who supported and lifted other cheerleaders into the air. In this case, the “flyer” fell landing on the plaintiff injuring her. She suffered a T8 spinal compression fracture.

The plaintiff sued based on the:

…wreckless, wanton and complete disregard for the safety of Plaintiff, Defendant failed to provide the proper spotters and coaching, as a result Plaintiff was caused to sustain severe and permanent injuries to her person when her team members fell onto her person.

She claimed the failure of the spotters to be in a proper position was more than negligence it “constituted reckless and wanton disregard for Lindsay’s [the plaintiff] safety.” These allegations would take the issue out of simple negligence, which can be protected by a release, to an issue that must be decided by a jury.

The defendants argued the release and the doctrine of primary assumption of the risk. The trial court granted the defendants motion for summary judgment holding both the release and the doctrine of primary assumption of the risk barred the plaintiff’s claims.

So?

In Ohio, the doctrine of Primary Assumption of the risk is occurs when a plaintiff:

…voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries

As long as the rules of the game or sport are being followed or someone is acting recklessly or intentionally, a player cannot recover from their injuries.

Negligence is synonymous with:

…with heedlessness, thoughtlessness, inattention, inadvertence, and oversight, and conveys the idea of inadvertence as distinguished from premeditated or formed intention, or a conscious purpose to do a wrong act or to omit the performance of a duty.

Negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.

Contrast negligence with Willful, wanton or reckless conduct which is defined by Ohio’s law as:

….a failure to exercise any care whatsoever by one who owes a duty of care to another, and the failure must occur under circumstances where there is a great probability that harm will result from the lack of care

Evidence of willful, wanton or reckless conduct can be shown by acts of “…stubbornness, obstinacy, or persistency in opposing that which is right, reasonable, correct, or generally accepted as a course to follow in protecting the safety of others.”

Reckless disregard for the safety of another occurs if one does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

The court characterized the cheerleading competition as a sporting event. As such, unreasonable risk by participants at a sporting event must take into account the way the particular game is played, including the rules, customs and foreseeable conduct of the participants.

To continue her claim based on the greater than simple negligence allegations, the complaint and motions of the plaintiff must assert acts or omissions on the part of the defendant that prove the willful, wanton or reckless conduct or misconduct. The court could not find anything in the pleadings or the motions that supported those claims.

These facts do not demonstrate a disposition to perversity on the part of the spotters or a failure to exercise any care whatsoever. Therefore, an issue as to whether the spotters’ conduct was wanton does not exist.

The court upheld the lower court decision. In doing so the court did make one statement, which was quite interesting.

It is unfortunate that Lindsay was seriously injured at the competition, and we realize that, because of the accident, she has suffered a great deal. However, there was no evidence of recklessness or wantonness that renders AmeriCheer [Defendant] liable for damages.

So Now What?

This decision upholds the prior decision in Zivich. Decisions that I’ve written about where Zivich was dismissed will not be changed, but those decisions will have a lesser effect in the future. See Delaware holds that mothers signature on contract forces change of venue for minors claims and Alabama follows the majority of states and does not allow a parent to sign away a minor’s right to sue, (Zivich only applies to charities), Texas follows majority with appellate court decision holding a parent cannot sign away a minor’s right to sue and Iowa does not allow a parent to sign away a minor’s right to sue (Zivich only applies to protect volunteers).

This case also supports the use of a release in Ohio to stop a lawsuit by a minor when a minor is injured and the release is signed by a parent or guardian.

What do you think? Leave a comment.

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Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827

Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827

Lindsay M. Wolfe, Plaintiff-Appellant, v. AmeriCheer, Inc., Defendant-Appellee.

No. 11AP-550

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2012 Ohio 941; 2012 Ohio App. LEXIS 827

March 8, 2012, Rendered

PRIOR HISTORY: [**1]

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 10CVH-05-7045).

DISPOSITION: Judgment affirmed.

COUNSEL: Plevin & Gallucci Co., LPA, Michael D. Shroge, and Frank L. Gallucci, III, for appellant.

Reminger Co., L.P.A., Martin T. Galvin and Rafael P. McLaughlin, for appellee.

JUDGES: TYACK, J. BROWN, P.J., and DORRIAN, J., concur.

OPINION BY: TYACK

OPINION

(REGULAR CALENDAR)

DECISION

TYACK, J.

[*P1] Plaintiff-appellant, Lindsay M. Wolfe, was seriously injured while competing in a cheerleading event. She appeals from the May 24, 2011 decision and entry granting defendant-appellee AmeriCheer, Inc.’s (“AmeriCheer”) motion for summary judgment. For the reasons that follow, we affirm.

[*P2] Lindsay M. Wolfe, then 13 years old, participated in a cheerleading competition on February 2, 2003 at the Columbus Convention Center. Americheer sponsored the competition known as the 2003 Winter Championship. As a prerequisite to Lindsay being allowed to participate in the competition, Lindsay’s mother, Barbara Wolfe, signed a “Medical Treatment Authorization and Release of Liability” before the competition. The release contained, in pertinent part, the following language:

I further release AmeriCheer and its representatives from any claims for injury [**2] or illness that may be sustained as a result of their participation in this event. I acknowledge and understand that in participating in this event, there is the possibility they may sustain physical illness or injury in connection with his or her participation. I further understand and acknowledge that my daughter [or] [son] and I assume the full risk of physical injury by their participation and I further release the event location, AmeriCheer, Inc., as well as it’s [sic] representatives, from any claims for personal injury, [or] illness that they may sustain during camp.

[*P3] Lindsay was a member of the Xtreme Team Athletics All-Star Cheer & Dance, a private all-star cheerleading team. Xtreme team members trained and competed in a style of cheerleading characterized by gymnastic-type stunts. At the time of her injury, Lindsay was acting as a “base” who, along with others, supported and lifted another cheerleader, the “flyer,” into the air. At a point in the routine where Lindsay had assisted in raising the flyer, the flyer slipped or lost her balance and fell, landing on Lindsay. Lindsay sustained a T8 spinal compression fracture as a result of the fall.

[*P4] Teams use spotters when cheerleaders [**3] are learning new skills, practicing, or performing stunts in which one or more cheerleaders are elevated above the floor. The spotters are there to catch a cheerleader in case of a fall. AmeriCheer provided the spotters used for the 2003 Winter Championship. In her complaint, Lindsay alleged that:

[D]ue to the wreckless [sic], wanton and complete disregard for the safety of Plaintiff, Defendant failed to provide the proper spotters and coaching, as a result Plaintiff was caused to sustain severe and permanent injuries to her person when her team members fell onto her person.

(Complaint, at ¶ 3.)

[*P5] AmeriCheer moved for summary judgment on the grounds that the release signed by Lindsay’s mother barred any negligence claims. Additionally, AmeriCheer argued that the doctrine of primary assumption of risk also acted to bar Lindsay’s claims.

[*P6] Lindsay responded that the spotters’ failure to be properly positioned and failure to move in when the team started the stunt constituted reckless and wanton disregard for Lindsay’s safety, not mere negligence. Therefore, she argued there existed a genuine issue of material fact as to whether the conduct of the spotters was wanton or reckless.

[*P7] The trial [**4] court found that the release signed by Barbara Wolfe on behalf of her daughter was valid, and therefore, the trial court concluded that Lindsay was precluded, by operation of the lease, from bringing any negligence claims against AmeriCheer related to her injuries. The court also agreed with AmeriCheer that the doctrine of primary assumption of risk precluded the negligence claims. Lindsay has not challenged those issues on appeal.

[*P8] The trial court then considered whether there existed a genuine issue of material fact concerning the issue of willful, wanton, or reckless conduct. The court found that Lindsay had failed to present evidence that satisfied the threshold required for a showing of wanton or reckless conduct.

[*P9] On appeal, Lindsay assigns the following as error:

I. The trial court erred in granting Defendant’s Motion for Summary Judgment because material facts of willful, wanton or reckless conduct exist, placing that issue in dispute for a jury to determine.

II. The trial court erred in concluding that Plaintiff set forth no facts other than those alleged by Plaintiff herself. The trial court’s own Order citing statements garnered from the deposition testimony of Defendant’s President [**5] and CEO clearly establishe a question of fact for which a jury is to determine.

[*P10] At the outset, we address the issue of the deposition testimony of Elizabeth Rossetti, the president and CEO of AmeriCheer. Ms. Rossetti’s deposition was not filed with the court of common pleas. AmeriCheer attached a few pages of excerpts from Ms. Rossetti’s deposition as an exhibit to its reply in support of summary judgment, but the deposition itself was never filed with the court of common pleas. Only the following three depositions were made part of the record: 1) Lindsay Wolfe’s deposition taken on Friday, October 10, 2008; 2) Barbara Wolfe’s deposition taken on December 9, 2008; and 3) Lindsay Wolfe’s second deposition taken on March 15, 2011. A copy of Ms. Rossetti’s entire deposition was attached as part of AmeriCheer’s appendix to its appellate brief. However, since the complete deposition was not made part of the record, we will not consider the entirety of Ms. Rossetti’s deposition.

[*P11] Nevertheless, both parties and the trial court relied on the excerpts of Ms. Rossetti’s deposition without objection in the summary judgment proceedings. The trial court could and did rely on those representations [**6] when it quoted some of Ms. Rossetti’s testimony. Sicard v. Univ. of Dayton, 104 Ohio App.3d 27, 30, 660 N.E.2d 1241 (2d Dist.1995), fn. 1. [HN1] “A trial court, however, can consider non-complying documents in adjudicating a summary judgment motion when no objection to the documents is raised.” New Falls Corp. v. Russell-Seitz, 10th Dist. No. 08AP-397, 2008 Ohio 6514, ¶ 12. “Absent an objection, a trial court has the discretion to consider unauthenticated documents when rendering summary judgment.” Columbus v. Bahgat, 10th Dist. No 10AP-943, 2011 Ohio 3315, ¶ 16. Accordingly, we shall consider the deposition excerpts as well since both parties argue that Ms. Rossetti’s deposition supports their respective arguments.

[*P12] Lindsay’s assignments of error challenge the trial court’s ruling on AmeriCheer’s motion for summary judgment. We [HN2] review the trial court’s grant of summary judgment de novo. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41, 654 N.E.2d 1327 (9th Dist.1995). [HN3] Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion, [**7] and that conclusion is adverse to the party against whom the motion for summary judgment is made, when the evidence is construed in a light most favorable to the non-moving party. Civ.R 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St. 3d 181, 1997 Ohio 221, 677 N.E.2d 343 (1997).

[*P13] [HN4] Under summary judgment motion practice, the moving party bears an initial burden to inform the trial court of the basis for its motion and to point to portions of the record that indicate that there are no genuine issues of material fact on a material element of the non-moving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 1996 Ohio 107, 662 N.E.2d 264 (1996). Once the moving party has met its initial burden, the non-moving party must produce competent evidence establishing the existence of a genuine issue for trial. Id. Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory assertions that the non-moving party has no evidence to prove its case. Id. Rather, the moving party must point to some evidence that affirmatively demonstrates that the non-moving party has no evidence to support his or her claims. Id. “Permitting a nonmoving party to avoid summary judgment by asserting nothing more than ‘bald contradictions [**8] of the evidence offered by the moving party’ would necessarily abrogate the utility of the summary judgment exercise. C.R. Withem Enterprises v. Maley, 5th dist. No. 01 CA 54, 2002 Ohio 5056, at ¶24. Courts would be unable to use Civ.R. 56 as a means of assessing the merits of a claim at an early stage of the litigation and unnecessary dilate the civil process.” Greaney v. Ohio Turnpike Comm., 11th Dist. No. 2005-P-0012, 2005 Ohio 5284, ¶ 16. Bearing this standard in mind, we shall address the two assignments of error as one.

[*P14] Because of the release signed by Lindsay’s mother and the doctrine of primary assumption of risk, Lindsay is precluded from bringing a negligence action against AmeriCheer. [HN5] Under the doctrine of primary assumption of the risk, a plaintiff voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries. Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), syllabus; Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009 Ohio 6898, ¶ 13, 924 N.E.2d 906 (10th Dist.).

[*P15] In Crace, this court found that the doctrine [**9] of primary assumption of risk barred a negligence claim against a university in connection with a cheerleading injury. Crace, the captain of the Kent State University varsity cheerleading team, was the flyer during a human pyramid stunt. The first two attempts failed, and both times Crace fell from around 15 feet in the air where the spotter at the front of the formation caught her. On the third attempt the stunt failed again. When Crace came down for the third time, the spotter behind her panicked, shielded his eyes and moved out of the way. As a result, Crace’s fall was unbroken, and caused catastrophic injuries. Id. at ¶ 7.

[*P16] As was the case with Crace, Lindsay can only proceed with her personal injury claims if AmeriCheer acted willfully, wantonly, or recklessly. The issue is whether Lindsay has set forth competent evidence establishing a genuine issue of material fact on the issue of willful, wanton, or reckless conduct.

[*P17] [HN6] Ordinarily, the issue of willful, wanton, or reckless conduct is a question for the jury. Matkovitch v. Penn Cent. Transp. Co., 69 Ohio St. 2d 210, 214, 431 N.E.2d 652 (1982). In order to find wanton misconduct, there must be a failure to exercise any care whatsoever by one who [**10] owes a duty of care to another, and the failure must occur under circumstances where there is a great probability that harm will result from the lack of care. Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977). By way of contrast, the term “negligence” is synonymous with heedlessness, thoughtlessness, inattention, inadvertence, and oversight, and conveys the idea of inadvertence as distinguished from premeditated or formed intention, or a conscious purpose to do a wrong act or to omit the performance of a duty. Tighe v. Diamond, 149 Ohio St. 520, 525, 80 N.E.2d 122 (1948). Negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor. Roszman v. Sammett, 26 Ohio St.2d 94, 96-97, 269 N.E.2d 420, (1971), paragraph two of the syllabus. Evidence of a disposition to perversity may be shown by acts of stubbornness, obstinacy, or persistency in opposing that which is right, reasonable, correct, or generally accepted as a course to follow in protecting the safety of others. Id.

[*P18] [HN7] Reckless disregard for the safety of another occurs if one does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know [**11] of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Thompson v. McNeill, 53 Ohio St.3d 102, 104-05, 559 N.E.2d 705 (1990).

[*P19] “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 participants’ ideas of foreseeable conduct in the course of a game.” Id.

[*P20] Examining the evidence in the light most favorable to the non-moving party, Lindsay has set forth evidence that two of the three spotters provided by AmeriCheer were not in the positions they should have been at the time of the injury. Whether those actions or inactions create a factual issue as to wanton or reckless misconduct must be determined by applying the evidence to the standards for wanton or reckless disregard for safety. Only one of the spotters was on the mat during the formation of the stunt. The videotape of the competition was not made part of the record, and therefore it is not possible to determine the exact [**12] placement of the spotters during Lindsay’s routine. All that is known is that at least one spotter was standing on the edge of the mat, and two others were observing in the back. (Barbara Wolfe Depo., at 36.) According to Ms. Rossetti’s testimony while watching the video, the middle spotter was moving forward as the team was preparing to execute the mount. Barbara Wolfe estimated the spotters were at the edge of the mat approximately six to eight feet from the cheerleaders. (Barbara Wolfe Depo., at 72.) Lindsay estimated the spotters were 25 feet from where the cheerleaders were forming the stunt. (Lindsay Wolfe Depo., at 165.)

[*P21] Ms. Rossetti testified that spotters were not even necessary at AmeriCheer competitions, but were there to provide additional lines of safety and to help prevent injuries if they were able to do so. (Elizabeth Rossetti Depo., at 17.) When the cheerleaders are about to perform a stunt like the one in which Lindsay was injured, Ms. Rossetti said: “They should be present, near the – – on the mat. If they’re on the mat, they’re close enough to be at a given particular time, if they’re needed.” When asked where on the mat they should be positioned, Ms. Rossetti answered: [**13] “Well, it depends on the routine. It’s hard to point out. But there’s no – – again, it’s judgment on their part. It’s not trained; it’s learned. It’s judgment. If they feel that they can be there or they’re there, then it’s their judgment to make that call. * * * It’s not my judgment to make that call. * * * It’s their judgment to be on the mat and provide an additional level of safety, yes.” (Elizabeth Rossetti Depo, at 52.)

[*P22] In Dresher, 75 Ohio St.3d at 292, the Supreme Court of Ohio explicitly stated that [HN8] when a court receives a properly presented motion for summary judgment, a non-moving party may not rely upon the mere allegations of its complaint, but, instead, must demonstrate that a material issue of fact exists by directing the court’s attention to evidentiary materials of the type listed in Civ.R. 56(C). Id. Here, Lindsay has failed to cite to facts that support her contention. For example, Lindsay argues that there was a great probability that harm would result from lack of care. She claims that the spotters’ failure to move in when Lindsay’s team began the stunt is a perverse act and conscious disregard of their duty to provide safety. These types of statements add nothing [**14] to the analysis required by a court in addressing a motion for summary judgment.

[*P23] There is no evidence in the record that supports these assertions. Cheerleading carries inherent risks to those participants engaging in stunts of the kind performed at the Winter Championship. (Barbara Wolfe Depo., at 36; see Crace at ¶ 34, 35.) There was no evidence that in 2003 there were standards for spotters or even how many spotters were needed. (Elizabeth Rossetti Depo., at 17, 60.) The only evidence put forth was testimony that two of the spotters were not standing on the mat. Ms. Rossetti watched the video during her deposition, and testified that one spotter was moving in. (Elizabeth Rossetti Depo., at 90.) There was no testimony that the spotters had a duty to move closer when the team began the stunt apart from Lindsay’s observation that at every competition she attended the spotters would walk up. (Lindsay Wolfe Depo., at 66-67.) Lindsay claims that when the cheerleaders were practicing or learning stunts that the coaches stood on the mat and spotted for them. While for summary judgment purposes this statement is taken as true, it is somewhat of a red herring. Ms. Rossetti testified that, [**15] at camp, the spotters can be close by, but, in a competition, they cannot always be on top of them because they will interfere with something else going on. (Elizabeth Rossetti Depo., at 91.) Lindsay also testified that the coaches spotted them during practices. She then stated: “Once we were comfortable with, you know, and they were comfortable with us doing it, yes, they would like stand on the edge of the mat and watch.” (Lindsay Wolfe Depo., at 66.) Taken at face value, by the time a team is ready to perform the routine in competition, the coaches, who formerly spotted, would stand at the edge of the mat. Thus, the evidence suggests the spotters were properly positioned. Even if, as Lindsay testified, the spotters should have moved closer in preparation for the stunt, at least one of them did. These facts do not demonstrate a disposition to perversity on the part of the spotters or a failure to exercise any care whatsoever. Therefore, an issue as to whether the spotters’ conduct was wanton does not exist.

[*P24] Similarly, evidence regarding reckless misconduct is lacking. As stated above, in order to show reckless misconduct, one must act or intentionally fail to act when it is his duty [**16] to the other to do so, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Thompson, 53 Ohio St.3d at 104-05.

[*P25] The [**17] unrefuted evidence is that in 2003 AmeriCheer was under no duty to provide spotters at its competitions, but did provide them to create an additional layer of safety. There was testimony that the spotters were, themselves, trained cheerleaders from AmeriCheer’s summer camp. There was no evidence that AmeriCheer inadequately trained its spotters. According to Lindsay, the spotters were in a location where coaches would stand after they were comfortable with how the cheerleaders were performing the routine. Lindsay testified that she had no opportunity to catch the flyer as she was falling. Lindsay’s mother believed that if the spotters had been doing their job the accident probably would not have been as severe or have happened. She also acknowledged that it was possible that the spotter could have been right there and not have been able to stop the accident.

[*P26] There is no evidence that the spotters themselves recognized any facts that would lead them to believe that their conduct could or did create an unreasonable risk of harm to another. There was no evidence at all from the spotters at the event. At best, their actions could be considered negligent. Therefore, Lindsay has failed to [**18] establish a genuine issue of material fact with regard to recklessness.

[*P27] The first assignment of error is overruled. The second assignment of error is also overruled since all parties relied on the deposition testimony of Ms. Rossetti and, as discussed above, it was not error for the trial court to rely on the excerpts. Since our review is de novo and we considered all the evidence that was in the record, there was no error.

[*P28] It is unfortunate that Lindsay was seriously injured at the competition, and we realize that, because of the accident, she has suffered a great deal. But there was no evidence of recklessness or wantonness that renders AmeriCheer liable for damages.

[*P29] Accordingly, appellant’s assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

BROWN, P.J., and DORRIAN, J., concur.


Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

696 N.E.2d 201

ZIVICH ET AL., APPELLANTS, v. MENTOR SOCCER CLUB, INC., APPELLEE, ET AL.

No. 97-1128

Supreme Court of Ohio.

Submitted April 21, 1998 –

Decided June 29, 1998.

APPEAL from the Court of Appeals for Lake County, No. 95-L-184.

In May 1993, appellant Pamela Zivich registered her seven-year-old son, appellant Bryan Zivich, for soccer with Mentor Soccer Club, Inc. (“Club”), appellee, for the 1993-1994 season. The Club is a nonprofit organization that provides children in the greater Mentor area with the opportunity to learn and play soccer. The Club is primarily composed of parents and other volunteers who provide their time and talents to help fulfill the Club’s mission. The Club’s registration form, signed by Mrs. Zivich, contained the following language:

“Recognizing the possibility of physical injury associated with soccer and for the Mentor Soccer Club, and the USYSA [United States Youth Soccer Association] accepting the registrant for its soccer programs and activities, I hereby release, discharge and/or otherwise indemnify the Mentor Soccer Club and the USYSA, its affiliated organizations and sponsors, their employees, and associated personnel, including the owners of the fields and facilities utilized by the Soccer Club, against any claim by or on behalf of the registrant as a result of the registrant’s participation in the Soccer Club * * *.”

On October 7, 1993, Bryan attended soccer practice. During practice, the boys participated in an intrasquad scrimmage. Bryan’s team won. After the scrimmage, Bryan ran to his father, who was standing on the sidelines and talking with the coach. Excited about the win, Bryan, unsupervised, jumped on the goal and swung back and forth on it. The goal, which was not anchored down, tipped backward. Bryan fell, and the goal came down on his chest, breaking three of his ribs and collarbone, and severely bruising his lungs.

In January 1995, Bryan’s parents, Philip and Pamela Zivich, appellants, sued the Club[fn1] for injuries sustained by Bryan. The complaint alleged negligence and reckless misconduct.[fn2] The Club moved for summary judgment on the ground that the release executed by Bryan’s mother barred the claims. The trial court agreed and granted the Club’s summary judgment motion.

The court of appeals affirmed, albeit partly on different grounds. In Judge Nader’s majority opinion, in which Judge Christley “reluctantly” joined, he said that the exculpatory agreement was effective against Mr. and Mrs. Zivich, but not against Bryan. Thus, while the trial court was correct to grant summary judgment, Bryan still had a cause of action which a guardian could bring on his behalf or which he could assert once he gained the age of majority. Judge Nader acknowledged the public policy in favor of enforcing the agreement against Bryan, but found that that decision was best left to the General Assembly or this court. Additionally, Judge Nader’s majority opinion found no evidence to support the willful and wanton misconduct claim. Concurring in the result only, Judge Ford opined that the public policy of Ohio favors enforcement of the agreement against Bryan as well as his parents. Judge Christley “wholehearted[ly] endorse[d]” the policy advocated by Judge Ford, but agreed with Judge Nader that the issue should be resolved by the General Assembly or this court.

The cause is now before this court pursuant to the allowance of a discretionary appeal.

[fn1] Appellants also sued the city of Mentor, which owned the park where practice was held. The city settled with appellants, and this court dismissed it from the lawsuit in December 1997. 80 Ohio St.3d 1474, 687 N.E.2d 471.

[fn2] Other claims were asserted, but they are not at issue here.

Svete, McGee & Carrabine Co., L.P.A., and James W. Reardon, for appellants.

Reminger & Reminger Co., L.P.A., George S. Coakley, Laura M. Sullivan and Brian D. Sullivan, for appellee.

FRANCIS E. SWEENEY, SR., J.

We are asked to decide whether the exculpatory agreement[fn3] executed by Mrs. Zivich on behalf of her minor son released the Club from liability for the minor child’s claims and the parents’ claims as a matter of law. We find that the exculpatory agreement is valid as to all claims. Summary judgment was appropriately entered in the Club’s favor. The judgment of the court of appeals is affirmed.

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.

Appellants argue that since practice had concluded, the injury occurred outside the scope of the exculpatory agreement. We find this contention meritless. We quote, with approval, Judge Nader’s majority opinion rejecting this argument: “It should not come as any great surprise for a parent to learn that, during a period of inactivity at a soccer practice, his or her child fiddled with loose equipment, climbed on nearby bleachers, or scaled the goal. It should be equally clear that coaches supervising the practices will not be able to completely prevent such unauthorized activity, as some degree of bedlam is unavoidable, when children of tender years are brought together to play a game, and when their emotions are aroused. The risk of a seven[-]year[-]old child climbing on a goal shortly after winning an intrasquad scrimmage is, therefore, a natural incident of his participation in soccer practice. Thus, Bryan’s injuries fall within the ambit of the release.”

We next consider whether the release is valid. With respect to adult participants, the general rule is that releases from liability for injuries caused by negligent acts arising in the context of recreational activities are enforceable. Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 90, 585 N.E.2d 384, 390; Simmons v. Am. Motorcyclist Assn., Inc. (1990), 69 Ohio App.3d 844, 846, 591 N.E.2d 1322, 1324; Cain v. Cleveland Parachute Training Ctr. (1983), 9 Ohio App.3d 27, 9 OBR 28, 457 N.E.2d 1185. These holdings recognize the importance of individual autonomy and freedom of contract. Here, however, the exculpatory agreement was executed by a parent on behalf of the minor child.

Appellants contend that the release is invalid on public policy grounds. In support of their argument, they refer to the general principle that contracts entered into by a minor, unless for “necessaries,” are voidable by the minor, once the age of majority is reached, or shortly thereafter. Restatement of the Law 2d, Contracts (1979), Sections 7, 12, and 14, and Comment f to Section 12. Appellants urge us to apply the seminal case of Wagenblast v. Odessa School Dist. No. 105-157-166J (1988), 110 Wn.2d 845, 851-852, 758 P.2d 968, 971, where the Washington Supreme Court relied upon Tunkl v. Regents of Univ. of California (1963), 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, and set forth a six-part test to determine whether a particular release violates public policy. The Club, however, argues that the proper focus is not whether the release violates public policy but rather that public policy itself justifies the enforcement of this agreement. This is also the position advocated by Judge Ford in his concurring opinion. We agree with the Club and Judge Ford.[fn4]

The General Assembly has enacted statutes designed to encourage landowners to open their land to public use for recreational activities without fear of liability. Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138, 142, 16 O.O.3d 161, 164, 404 N.E.2d 742, 745. See R.C. 1533.18 and 1533.181, which together provide that private entities that hold land open for recreational use without charge are immune from tort liability for any injury caused by a recreational user. Then, in 1996, R.C. 2305.381 and 2305.382[fn5] were enacted, effective January 27, 1997. Together, these statutes accord qualified immunity to unpaid athletic coaches and sponsors of athletic events. Hence, the General Assembly has articulated its intent of encouraging the sponsorship of sports activities and protecting volunteers. However, R.C. 2305.381 and 2305.382 were enacted after this cause of action arose. Thus, our role is to render a decision that fills the gap left open before the effective date of the statutory enactments.

It cannot be disputed that volunteers in community recreational activities serve an important function. Organized recreational activities offer children the opportunity to learn valuable life skills. It is here that many children learn how to work as a team and how to operate within an organizational structure. Children also are given the chance to exercise and develop coordination skills. Due in great part to the assistance of volunteers, nonprofit organizations are able to offer these activities at minimal cost. In fact, the American Youth Soccer Organization pays only nineteen of its four hundred thousand staff members. The Little League pays only seventy of its 2.5 million members. See King, Exculpatory Agreements for Volunteers in Youth Activities – The Alternative to “Nerf” Tiddlywinks (1992), 53 Ohio St.L.J. 683, 759, fns. 208 and 209. Clearly, without the work of its volunteers, these nonprofit organizations could not exist, and scores of children would be without the benefit and enjoyment of organized sports. Yet the threat of liability strongly deters many individuals from volunteering for nonprofit organizations. Developments in the Law – Nonprofit Corporations – Special Treatment and Tort Law (1992), 105 Harv.L.Rev. 1667, 1682. Insurance for the organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs. Markoff, Liability Threat Looms: A Volunteer’s Thankless Task (Sept. 19, 1988), 11 Natl.L.J. 1, 40. Thus, although volunteers offer their services without receiving any financial return, they place their personal assets at risk. See Developments, supra, 105 Harv.L.Rev. at 1692.

Therefore, faced with the very real threat of a lawsuit, and the potential for substantial damage awards, nonprofit organizations and their volunteers could very well decide that the risks are not worth the effort. Hence, invalidation of exculpatory agreements would reduce the number of activities made possible through the uncompensated services of volunteers and their sponsoring organizations.

Therefore, we conclude that although Bryan, like many children before him, gave up his right to sue for the negligent acts of others, the public as a whole received the benefit of these exculpatory agreements. Because of this agreement, the Club was able to offer affordable recreation and to continue to do so without the risks and overwhelming costs of litigation. Bryan’s parents agreed to shoulder the risk. Public policy does not forbid such an agreement. In fact, public policy supports it. See Hohe v. San Diego Unified School Dist. (1990), 224 Cal.App.3d 1559, 1564, 274 Cal.Rptr. 647, 649. Accordingly, we believe that public policy justifies giving parents authority to enter into these types of binding agreements on behalf of their minor children. We also believe that the enforcement of these agreements may well promote more active involvement by participants and their families, which, in turn, promotes the overall quality and safety of these activities. See King, supra, 53 Ohio St. L.J. at 709.

Another related concern is the importance of parental authority. Judge Ford’s concurring opinion also embraces this notion. Citing In re Perales (1977), 52 Ohio St.2d 89, 96, 6 O.O.3d 293, 296-297, 369 N.E.2d 1047, 1051, fn. 9; In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, 1171; and State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 8, 15 O.O.3d 3, 4-5, 399 N.E.2d 66, 67, Judge Ford found that the right of a parent to raise his or her child is a natural right subject to the protections of due process. Additionally, parents have a fundamental liberty interest in the care, custody, and management of their offspring. Further, the existence of a fundamental, privacy-oriented right of personal choice in family matters has been recognized under the Due Process Clause by the United States Supreme Court. See Meyer v. Nebraska (1923), 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.

Based upon these protections, Judge Ford believes that many decisions made by parents “fall within the penumbra of parental authority, e.g., the school that the child will attend, the religion that the child will practice, the medical care that the child will receive, and the manner in which the child will be disciplined.” He found it notable that the law empowers a parent to consent to medical procedures for a minor child (R.C. 2317.54[C]), gives a parent the general authority to decide to decline medical treatment for the child, and destroys the child’s cause of action for battery when consent is given. See Lacey v. Laird (1956), 166 Ohio St. 12, 19, 1 O.O.2d 158, 161, 139 N.E.2d 25, 30 (Hart, J., concurring). Thus, Judge Ford believes that invalidating the release as to the minor’s claim is inconsistent with conferring other powers on parents to make important life choices for their children.

Nor is it appropriate to equate a preinjury release with a postinjury release. As one commentator aptly explains:

“The concerns underlying the judiciary’s reluctance to allow parents to dispose of a child’s existing claim do not arise in the situation where a parent waives a child’s future claim. A parent dealing with an existing claim is simultaneously coping with an injured child; such a situation creates a potential for parental action contrary to that child’s ultimate best interests.

“A parent who signs a release before her child participates in a recreational activity, however, faces an entirely different situation. First, such a parent has no financial motivation to sign the release. To the contrary, because a parent must pay for medical care, she risks her financial interests by signing away the right to recover damages. Thus, the parent would better serve her financial interests by refusing to sign the release.

“A parent who dishonestly or maliciously signs a preinjury release in deliberate derogation of his child’s best interests also seems unlikely. Presumably parents sign future releases to enable their children to participate in activities that the parents and children believe will be fun or educational. Common sense suggests that while a parent might misjudge or act carelessly in signing a release, he would have no reason to sign with malice aforethought.

“Moreover, parents are less vulnerable to coercion and fraud in a preinjury setting. A parent who contemplates signing a release as a prerequisite to her child’s participation in some activity faces none of the emotional trauma and financial pressures that may arise with an existing claim. That parent has time to examine the release, consider its terms, and explore possible alternatives. A parent signing a future release is thus more able to reasonably assess the possible consequences of waiving the right to sue.” Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of a Minor’s Future Claim (1993), 68 Wn.L.Rev. 457, 474.

These comments were made in a law review article criticizing the Washington Supreme Court’s decision in Scott v. Pacific W. Mountain Resort (1992), 119 Wn.2d 484, 834 P.2d 6. In that case, the court found that a release, signed by the mother so that her son could take ski-racing lessons, was invalid as to the minor’s claim. In Scott, the court had reasoned that it made no sense to treat a child’s preinjury and postinjury property rights differently. Id. at 494, 834 P.2d at 11-12. The article criticized this decision, noting that when the mother signed the release, she gave her son the opportunity to ski. She gained no financial advantage for herself, nor did she suffer from fraud or collusion. She was under no financial or emotional pressure when she signed. The article states that “while she may have misjudged the risk to her son, Mrs. Scott did not mismanage or misappropriate Justin’s property. She did her best to protect Justin’s interests, and the court need not step in to do so.” Id., 68 Wn.L.Rev. at 474-475.

We agree with Judge Ford’s concurring opinion and the reasoning contained in the foregoing law review article. When Mrs. Zivich signed the release she did so because she wanted Bryan to play soccer. She made an important family decision and she assumed the risk of physical injury on behalf of her child and the financial risk on behalf of the family as a whole. Thus, her decision to release a volunteer on behalf of her child simply shifted the cost of injury to the parents. Apparently, she made a decision that the benefits to her child outweighed the risk of physical injury. Mrs. Zivich did her best to protect Bryan’s interests and we will not disturb her judgment. In fact, the situation is more analogous to Ohio’s informed consent law than to the law governing children’s property rights. See R.C. 2317.54(C), which gives parents the authority to consent to medical procedures on a child’s behalf. In both cases, the parent weighs the risks of physical injury to the child and the attendant costs to herself against the benefits of a particular activity.

Therefore, we hold that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activities where the cause of action sounds in negligence. These agreements may not be disaffirmed by the child on whose behalf they were executed.

Having upheld the release agreement against Bryan’s claims, we find it also valid as to Mr. and Mrs. Zivich’s claims for loss of consortium. Mrs. Zivich, the signatory on the agreement, acknowledged that she had read its contents and did not ask any questions about them. Parents may release their own claims growing out of injury to their minor children. See, e.g., Simmons v. Parkette Natl. Gymnastic Training Ctr. (E.D.Pa. 1987), 670 F. Supp. 140, 142; Childress v. Madison Cty. (Tenn.App. 1989), 777 S.W.2d 1, 6; Scott, supra, 119 Wn.2d 484, 834 P.2d 6. We adopt this rule of law, finding it consistent with principles of freedom of contract. Thus, we hold that parents may release their own claims arising out of the injury to their minor children. Accordingly, we find that Mrs. Zivich is barred from recovery as to her claims.

We further find that Philip Zivich’s[fn6] loss of consortium claim is also barred as a matter of law. Although Mr. Zivich did not personally sign the release agreement, he accepted and enjoyed the benefits of the contract. In fact, when the injury occurred, Mr. Zivich was the parent who was at the practice field that evening. Thus, Mr. Zivich’s conduct conveys an intention to enjoy the benefits of his wife’s agreement and be bound by it. Under the doctrine of estoppel by acquiescence, Mr. Zivich may not assert his rights against the Club. Natl. Football League v. Rondor, Inc. (N.D.Ohio 1993), 840 F. Supp. 1160, 1167.

As a separate ground for recovery, appellants also contend that the injury was caused by the Club’s willful and wanton misconduct. In McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 31 OBR 449, 451, 510 N.E.2d 386, 388-389, this court defined “willful” misconduct as conduct involving “`an intent, purpose or design to injure.'” Id., quoting Denzer v. Terpstra (1934), 129 Ohio St. 1, 1 O.O. 303, 193 N.E. 647, paragraph two of the syllabus. “Wanton” misconduct was defined as conduct where one “`fails to exercise any care whatsoever toward those to whom he owes a duty of care, and [t]his failure occurs under circumstances in which there is a great probability that harm will result.'” McKinney, 31 Ohio St.3d at 246, 31 OBR at 451, 510 N.E.2d at 388-389, quoting Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus. We have held that while a participant in recreational activities can contract with the proprietor to relieve the proprietor from any damages or injuries he may negligently cause, the release is invalid as to willful and wanton misconduct. Bowen, supra, 63 Ohio St. 3d at 90, 585 N.E.2d at 390.

To support this claim, appellants assert that the Club’s former president, David Bolsen, attended a seminar just before his term of office ended. It was at the seminar that he learned of the need to anchor the goals and to post warning labels on them. Bolsen testified that because his term expired two weeks later, he had time to relay the information only to a few persons. However, no action was taken to secure the goals.

Appellants argue that Bolsen’s failure to take more affirmative steps to ensure that the Club and the city implemented the safety recommendations amounts to willful and wanton misconduct. Like the court of appeals, we reject this argument.

There is no evidence that the former president intended that Bryan should be injured. Nor did the former president utterly fail to exercise any care whatsoever. Even accepting as true the appellants’ claim that club officials knew about the safety problems but failed to act, this action does not amount to willful and wanton misconduct. As noted by the appellate court, “Park officials testified that the City never had anchored the goals in the past, and, apparently, of the thousands of young boys and girls playing soccer in the youth league throughout the years, no other child had been injured in this manner.” Thus, reasonable minds could not conclude that the risk posed by the unanchored goal was so great as to require immediate remedial action.

Moreover, the evidence established that the city, not the Club, was responsible for the upkeep of the soccer fields and the purchase, storage, maintenance, and placement of the soccer goals.

We find that appellants failed to produce sufficient evidence to present a jury question on the claim of willful and wanton misconduct.

Accordingly, we affirm the court of appeals’ judgment, albeit on somewhat different grounds. We uphold its decision that the release is valid as to the parents’ claims. However, we hold that the release is also valid as to the minor child’s claim.

Judgment affirmed.

MOYER, C.J., RESNICK, COOK and LUNDBERG STRATTON, JJ., concur.

DOUGLAS and PFEIFER, JJ., concur in judgment only.

[fn3] The words “release,” “waiver” and “exculpatory agreement” have been used interchangeably by the courts. These defenses are based on contract principles. “Exculpatory agreements, also called `releases’ or `waivers,’ are basically written documents in which one party agrees to release, or `exculpate,’ another from potential tort liability for future conduct covered in the agreement.” King, Exculpatory Agreements for Volunteers in Youth Activities – The Alternative to “Nerf” Tiddlywinks (1992), 53 Ohio St. L.J. 683.

[fn4] The majority opinion stated that an intermediate appellate court was not the appropriate forum to decide public policy. However, in a common-law system, a judicial decision declaring the rights of the parties can be based on several grounds, one of which is public policy. Hopkins, Public Policy and the Formation of a Rule of Law (1971), 37 Brooklyn L.Rev. 323, 330. Therefore, public policy is an appropriate device to be used by an appellate court to decide a case.

[fn5] Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, 3931. Our statutory law is in line with the many “volunteer statutes” passed by other states. See McCaskey and Biedzynski, A Guide to the Legal Liability of Coaches for a Sports Participant’s Injuries (1996), 6 Seton Hall J. of Sport L. 7, 62-63 (citing statutes).

[fn6] In the court of appeals, Mr. Zivich also argued that summary judgment was improper as to his claim for negligent infliction of emotional distress. However, he does not raise this claim here. Accordingly, we do not address this issue.

COOK, J., concurring.

I join in the well-reasoned majority opinion. I write separately only to point out that today’s decision is firmly grounded in the public policy of the General Assembly, as evinced by the legislative enactments cited by the majority.


Four releases signed and all of them thrown out because they lacked one simple sentence!

Releases have to be written correctly and they have to be written in conjunction with all of the possible defendants to a suit.

This is a sad case stemming from the death of young man who had traveled from Ohio

Photograph of girls performing synchronized tr...

Photograph of girls performing synchronized trampoline at WAGC in Quebec November 2007. Trampqueen 21:52, 15 November 2007 (UTC) (Photo credit: Wikipedia)

to Tennessee to participate in a gymnastic event, the John Macready Flip Fest Invitational in Knoxville. The deceased was an experienced participant on the trampoline. During the event, he fell off the trampoline hitting the concrete floor with his head.

His parents sued the organizer of the event, Top Flight Gymnastics, the sanctioning organizations, USA Gymnastics (USAG) and the United States Gymnastics Federation (USGF). These three defendants, Top Flight, USAG and USGF as well as the booster club for Top Flight had releases that were signed by the deceased and or his mother or father.
The deceased mother stated she signed the release for the event in Kentucky. (No explanation was given why she signed the release in Kentucky.) The USGF and USAG releases were part of membership applications and probably signed in Ohio. It was not stated where the Top Flight release was signed.
The deceased and the plaintiffs lived in Ohio. USAG and USGF were based in Indiana but sanctioned events all over the US. Top Flight was located in Tennessee where the accident occurred.
The defendants filed a motion for summary judgment arguing that the release should be reviewed under Ohio’s law. The reason for this is because Ohio upholds a release signed by a parent. (See States that allow a Parent to Sign away a Minor’s right to sue.) The court fist had to determine what law applied, Ohio or Tennessee. No one was arguing for Kentucky or Indiana. Neither of those states allows a parent to sign away a minor’s right to sue.
The plaintiffs sued for negligence “in that they sanctioned an event which failed to provide a safe environment, utilized untrained spotters, failed to ensure sufficient floor matting, failed to require experienced and trained spotters, and failed to require sufficient safety matting.”

Summary of the case

This case was brought in Federal District Court as a diversity case. That means that one or more of the parties is located outside of the state of where the lawsuit is filed and the amount being asked for is in excess of $75,000.  
The Federal Court had to decide which law would be applied to the case. This is called a “Choice of Laws” issue, meaning the court has to decide which state law will be used to decide the case. Step one in this decision, is to decide which states have a relationship with the lawsuit. How that decision is made is based on the law of the state where the court is. The case was filed in the United States District Court for the Eastern District of Tennessee, so Tennessee’s law was used to decide which state law would be used to the Choice of Law question which then would be used to decide which state law would be applied to the case.
In Tennessee, the test to decide which state law is to be applied is the “the most significant relationship” test.
In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, to which event the local law of the other state will be applied.
The court ruled that because the accident occurred in Tennessee, Tennessee had the most significant relationship to the case. The court applied the four-part Tennessee test to make that decision. The court looked at the following questions to determine what state law would be applied:
(1) the place where the injury occurred,
(2) the place where the conduct causing the injury occurred,
(3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(4) the place where the relationship, if any, between the parties is centered.
Tennessee was where the injury occurred, the place where the conduct causing the injury occurred. Tennessee “was the only mutual and central contact these parties had with one another.”
The court then looked at Tennessee’s law concerning releases and held all four releases void. Tennessee does not recognize a parent’s right to sign away a minor’s right to sue. Childress v. Madison County, 777 S.W.2d 1 (Tenn.App. 1989). The decision, on what state law to apply, decided the real legal issue in one sentence.
Of the four states in question, Tennessee, Indiana, Kentucky and Ohio, only if the choice of a law’s question had found Ohio, the place where two releases had been signed, would the case end. Simply put, the case would have ended if the court could have applied Ohio’s law to the facts.
The court then took on an interesting turn. The court stated, on its own, that the release also failed because the allegations of the complaint pleaded intentional conduct recklessness or gross negligence. Under Tennessee law gross negligence and reckless conduct are not protected by a release. The court then said, “defendants’ failure to provide a safe environment, failure to utilize trained spotters, and failure to ensure sufficient safety matting, all constitute gross negligence and reckless conduct.”
Rarely do courts look at the facts and then develop claims or defenses for one side or the other. Here, the court did just that. The court created additional claims for the plaintiff. Nowhere else in the decision did the court allude to allegations on the part of the plaintiffs whom any of the defendants acted a grossly negligent way.

So Now What?

I’ve written about it several times before about jurisdiction and venue. See A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit, The legal relationship created between manufactures and US consumers and Shark Feeding Death triggers debate. Jurisdiction is the term applied to the law that is to be applied to the case. This case is a legal argument over jurisdiction. Venue is the legal term used to describe where, what city and state the court that hears the case will be.
Releases must first have the correct language to make the release effective in barring claims and lawsuits. It must have a well written negligence clause.
However, if your release does not have a jurisdiction and venue clause, just like this case, your release is worthless a lot of the time. If anyone can change the venue to another state, and/or change the jurisdiction to another state you have just wasted paper.
As I repeat over and over again.
1.      Your release must be written by an attorney who is familiar with your activities and the law concerning releases.
2.    Your release must have a well written negligence clause. It must, according to the state law of the jurisdiction you decide, meet the requirements to be upheld.
3.    Your release must have a jurisdiction and venue clause. Period!
If you wrote your release I now it fails the first and second parts of the test. I suspect even if an attorney wrote your release, it might fail the third part of the test.

What do you think? Leave a comment.

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