Assumption of the Risk is a defense to negligence and gross negligence claims in this case against a college offering for credit tour abroad study.

Student died swimming in the Pacific Ocean and his parents sued the college for his death. College was dismissed because student was an adult and assumed the risk that killed him.

Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)

State: Georgia, Court of Appeals of Georgia

Plaintiff: Elvis Downes and Myrna Lintner (parents of the deceased)

Defendant: Oglethorpe University, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Assumption of the Risk

Holding: for the Defendant

Year: 2017

Summary

There are some risks that the courts say you understand and accept the risks because we know of them. Examples are cliffs and water. Here, the family of a student who died on a study abroad trip while swimming in the ocean could not sue because the student assumed the risks of swimming.

What is interesting is the assumption of the risk defense was used to defeat a claim of negligence and Gross Negligence.

Facts

During the 2010-2011 academic year, Oglethorpe offered to their students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the ” per credit tuition rate” and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.

Dr. Jeffrey Collins was then the director of Oglethorpe’s study-abroad program. According to Collins, Oglethorpe tried to follow ” best practices,” which is ” defined as those protocols, procedures that as best and as far as possible ensure[ ] the safety of students.” He acknowledged that students would swim on the trips. Collins was not aware of any potential dangers in Costa Rica and did no investigation to ascertain if there were potential dangers in Costa Rica.

During pre-trip meetings with Downes and the five other students who had registered for the program, Dr. Roark Donnelly and Dr. Cassandra Copeland, the two professors who accompanied the students on the trip, asked the students if everyone was a good swimmer, and the students agreed that they were. The group also discussed swimming in the ocean, including ” that there are going to be currents.” One of the professors told the students that, during a previous study-abroad trip to another location, a student had recognized that he was a weak swimmer and was required to wear a life jacket during all water activities. After hearing this, the students continued to express that they were good swimmers. Before leaving on the trip, the students were required to sign a release agreement which included an exculpatory clause pertaining to Oglethorpe.

The students and professors flew to Costa Rica on December 28, 2010. During the course of the trip, on the afternoon of January 4, 2011, the group arrived at a hotel on the Pacific coast. The six students, two professors, the guide, and the driver got into their bus and drove to a nearby beach, Playa Ventanas, which had been recommended by the hotel. Upon their arrival, there were other people on the beach and in the water. There were no warning signs posted on the beach, nor any lifeguards or safety equipment present.

The students swam in the ocean, staying mostly together, and eventually ventured out into deeper water. After about 20 minutes, Dr. Donnelly yelled for the students to move closer to shore. Shortly thereafter, student Robert Cairns, a former lifeguard, heard a female student screaming. Cairns swam toward the screams, and the student informed him that Downes needed help. Cairns realized that ” some kind of current … had pulled us out.” Cairns swam to within ten feet of Downes and told him to get on his back and try to float. Downes could not get on his back, and Cairns kept telling him he had to try. After some time, Downes was struck by a wave, went under the water, and disappeared from Cairns’s view. Downes’s body was recovered from the ocean three days later.

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

The deceased student signed a release in this case, however the trial court and the appellate court made their decisions based on assumption of the risk.

Under Georgia law, assumption of the risk is a complete bra to a recovery.

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.

Absent a showing by the plaintiff of coercion or a lack of free choice assumption of the risk prevents the plaintiff from recovery any damages for negligence from the defendant.

To prove the deceased assumed the risk the college must show:

A defendant asserting an assumption of the risk defense must establish that the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks.

The plaintiff does not have to know and understand every aspect and facet of the risk. The knowledge can be that there are inherent risks in an activity even if the specifics of those risks are not known.

The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

Assumption of the risk is usually a jury decision because the jury must weigh whether or not the plaintiff truly understood the risks. However, if the risk is such that there is undisputed evidence that it exists and the plaintiff knew or should have known about it, the court can act.

As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.

Drowning is a known and understood risk under Georgia law of being in the water.

It is well established under Georgia law that ” [t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.

Because the deceased student was a competent adult, meaning over the age of 18 and not mentally informed or hampered, the risk was known to him. “As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.”

The plaintiff’s argued the college created the risk because they did not investigate the beach, have an emergency preparedness plan, ensure the professors had adequate training and did not supply safety equipment. However, the court did not buy this because there was nothing in the record to show the College created or agreed to these steps to create an additional duty on the colleges part.

Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence.

The college was under not statutory or common law duty to provide any of the issues the plaintiff argued. Nor did the college create a duty by becoming an insurer of the students.

Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach.

Even then the assumption of the risk defense would apply because assuming the risk relieves the defendant of any negligence.

Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.

The defendant was not liable because the student, as an adult would have appreciated the risks of drowning in the Pacific Ocean.

Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment.

So Now What?

There are two important points in this decision.

First, although not discussed, the court allowed assumption of the risk to stop a claim for gross negligence. Normally, like assumption of the risk, whether or not a defendant was grossly negligent requires a review by the jury to determine if the facts alleged meet the definition of gross negligence in the state.

Second is the issue that the less you do the less liability you create. In the pre-trip briefing with the students the risks of swimming in the ocean were discussed. The students all stated they were strong swimmers and nothing more was done.

If the college had made them take a swim test, further questioned their swimming skills by requiring more information or making sure a professor who was a lifeguard was on the trip, the college would have created an additional duty owed to the students.

What do you think? Leave a comment.

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Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)

Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)

342 Ga.App. 250 (Ga.App. 2017)

802 S.E.2d 437

Downes et al. v. Oglethorpe University, Inc

A17A0246

Court of Appeals of Georgia

June 30, 2017

Assumption of the risk. DeKalb State Court. Before Judge Polk, pro hac vice.

Katherine L. McArthur, Caleb F. Walker, for appellants.

Swift, Currie, McGhee & Hiers, David M. Atkinson, for appellee.

OPINION

[802 S.E.2d 438]

Ellington, Presiding Judge.

Erik Downes, then a 20-year-old college student, drowned in the Pacific Ocean on January 4, 2011, while he was in Costa Rica attending a study-abroad program organized by Oglethorpe University, Inc. Elvis Downes and Myrna Lintner (the ” Appellants” ), as Downes’s parents and next of kin, and in their capacity as administrators of Downes’s estate, brought this wrongful death action alleging that Oglethorpe’s negligence and gross negligence were the proximate cause of Downes’s drowning. The trial court granted Oglethorpe’s motion for summary judgment, and the Appellants appeal. We affirm because, as a matter of law, Downes assumed [802 S.E.2d 439] the risk of drowning when he chose to swim in the Pacific Ocean.

Under OCGA § 9-11-56 (c), [s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant. (Citations and punctuation omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga.App. 475, 475-476 (759 S.E.2d 557) (2014). See also Johnson v. Omondi, 294 Ga. 74, 75-76 (751 S.E.2d 288) (2013) (accord).

So viewed, the evidence shows the following. During the 2010-2011 academic year, Oglethorpe offered to their students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the ” per credit tuition rate” and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.

Dr. Jeffrey Collins was then the director of Oglethorpe’s study-abroad program. According to Collins, Oglethorpe tried to follow ” best practices,” which is ” defined as those protocols, procedures that as best and as far as possible ensure[ ] the safety of students.” He acknowledged that students would swim on the trips. Collins was not aware of any potential dangers in Costa Rica and did no investigation to ascertain if there were potential dangers in Costa Rica.

During pre-trip meetings with Downes and the five other students who had registered for the program, Dr. Roark Donnelly and Dr. Cassandra Copeland, the two professors who accompanied the students on the trip, asked the students if everyone was a good swimmer, and the students agreed that they were. The group also discussed swimming in the ocean, including ” that there are going to be currents.” One of the professors told the students that, during a previous study-abroad trip to another location, a student had recognized that he was a weak swimmer and was required to wear a life jacket during all water activities. After hearing this, the students continued to express that they were good swimmers. Before leaving on the trip, the students were required to sign a release agreement which included an exculpatory clause pertaining to Oglethorpe.

The students and professors flew to Costa Rica on December 28, 2010. During the course of the trip, on the afternoon of January 4, 2011, the group arrived at a hotel on the Pacific coast. The six students, two professors, the guide, and the driver got into their bus and drove to a nearby beach, Playa Ventanas, which had been recommended by the hotel. Upon their arrival, there were other people on the beach and in the water. There were no warning signs posted on the beach, nor any lifeguards or safety equipment present.

The students swam in the ocean, staying mostly together, and eventually ventured out into deeper water. After about 20 minutes, Dr. Donnelly yelled for the students to move closer to shore. Shortly thereafter, student Robert Cairns, a former lifeguard, heard a female student screaming. Cairns swam toward the screams, and the student informed him that Downes needed help. Cairns realized that ” some kind of current … had pulled us out.” Cairns swam to within ten feet of Downes and told him to get on his back and try to float. Downes could not get on his back, and Cairns kept telling him he had to try. After some time, Downes was struck by a wave, went under the water, and disappeared from Cairns’s view. Downes’s body was recovered from the ocean three days later.

The Appellants filed this wrongful death action claiming that Downes’s death was the proximate result of Oglethorpe’s negligence and gross negligence. Evidence adduced during discovery included the testimony of Dr. John Fletemeyer, the Appellants’ expert in [802 S.E.2d 440] coastal sciences, that Downes had been caught in a ” rip current” [1] when he became distressed and ultimately drowned. Dr. Fletemeyer opined that some beaches on the western coast of Costa Rica are particularly dangerous ” mainly [because of] the lack of lifeguards,” but also because of physical conditions such as ” high wave energy force” and ” pocket beaches,” and that Playa Ventanas was a pocket beach.[2] He also testified that, in the context of the ocean, ” every beach you go to is extremely dangerous.” Other testimony showed that a continuing problem with drownings on beaches along the Pacific coast of Costa Rica was well publicized in Costa Rica, and that the United States Consular Authority in Costa Rica had ” published statistics about the danger of swimming on Costa Rica’s beaches and identified specifically the west coast beaches as being the most dangerous.” [3]

Following discovery, Oglethorpe moved for summary judgment and argued that (i) Oglethorpe owed no legal duty to Downes; (ii) the Appellants’ negligence claims are barred by Downes’s written waiver of liability and there is a lack of evidence that Oglethorpe was grossly negligent; and (iii) Downes assumed the risk of swimming in the ocean. The trial court granted Oglethorpe’s motion for summary judgment.

1. The Appellants contend that Oglethorpe was not entitled to summary judgment on the ground that Downes, as a matter of law, assumed the risk of drowning when he swam in the ocean.[4]

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. (Citation and punctuation omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 S.E.2d 866) (1996).

A defendant asserting an assumption of the risk defense must establish that the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

(Citation and punctuation omitted.) Gilreath v. Smith, 340 Ga.App. 265, 268 (1) (797 S.E.2d 177) (2017). ” As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.” (Citation and punctuation omitted.) Findley v. Griffin, 292 Ga.App. 807, 809 (2) (666 S.E.2d 79) (2008).

[342 Ga.App. 254] It is well established under Georgia law that ” [t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.” Bourn v. Herring, 225 Ga. 67, 69 (2) (166 S.E.2d 89) (1969). See, e.g., White v.

[802 S.E.2d 441]Ga. Power Co., 265 Ga.App. 664, 666 (1) (595 S.E.2d 353) (2004) (the ” [p]erils of deep water are instinctively known” ). The record does not show that Downes was aware of the presence of rip currents in the waters off the beach; however, ” [i]t is the body of water per se that presents an obvious risk of drowning, not its attendant conditions such as a strong unseen current or a deep unknown hole.” Id. at 667 (1). As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.

The Appellants contend that Oglethorpe had a duty to exercise ordinary care in the planning and implementing of its study-abroad program to avoid exposing the students to a risk of drowning. Because Oglethorpe owed this duty, they contend, the fact that Downes entered the water voluntarily does not establish as a matter of law that he assumed the risk of drowning. Rather, they contend, Oglethorpe created the dangerous situation by taking Downes to the beach without investigating its dangers, adopting an emergency preparedness plan, ensuring the professors in charge had adequate training and procedures for supervising swimming students, and supplying safety equipment.

Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence. ” Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.” (Citation omitted.) City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 S.E.2d 704) (1995). In Rice v. Oaks Investors II, 292 Ga.App. 692, 693-694 (1) (666 S.E.2d 63) (2008), the defendant was entitled to a directed verdict where, notwithstanding evidence that the defendants were negligent per se in failing to properly enclose the pool in which the ten-year-old decedent drowned, the child’s own negligence was the sole proximate cause of her death because the risk of swimming in the pool was obvious as a matter of law. Similarly, notwithstanding whether a defendant breached a duty to care for or supervise a decedent, the decedent’s assumption of the risk of injury may bar recovery. See Sayed v. Azizullah, 238 Ga.App. 642, 643-644 (519 S.E.2d 732) (1999) (finding no need to reach the issue [342 Ga.App. 255] of whether a duty was owed by the defendant to care for the 17-year-old decedent because the decedent was charged with appreciating the risk of swimming in the lake as a matter of law, and he voluntarily assumed that risk); Riley v. Brasunas, 210 Ga.App. 865, 868 (2) (438 S.E.2d 113) (1993) (any failure of the defendant to exercise the duty of an ordinary responsible guardian in watching over the seven-year-old child, who was injured using a trampoline, could not be the proximate cause of the child’s injuries where the child knowingly exposed himself to the obvious danger). See also Bourn v. Herring, 225 Ga. at 69-70 (2) (as the decedent, who was over 14 years old, was chargeable with diligence for his own safety against palpable and manifest peril, plaintiff could not recover against defendants for failure to exercise ordinary care in supervising the decedent in and around the lake in which he drowned).

As Appellants show, a decedent’s decision to enter a body of water with awareness of the physical circumstances is not necessarily determinative of whether the decedent assumed the risk of drowning. For example, the breach of a duty to provide statutorily required safety equipment may be ” inextricable from the proximate cause of the damage.” (Citation and punctuation omitted.) Holbrook v. Exec. Conference Center, 219 Ga.App. 104, 107 (2) (464 S.E.2d 398) (1995) (finding that a jury could determine that the absence of statutorily mandated safety equipment was the proximate cause of the decedent’s drowning in the defendant’s pool). See Alexander v. Harnick, 142 Ga.App. 816, 817 (2) (237 S.E.2d 221) (1977) (where the decedent drowned after she jumped from the defendant’s houseboat into the water in an attempt to rescue her dog, and the defendant did not have any throwable life preservers on board, nor readily accessible life vests, as required by law, ” a jury would not be precluded [802 S.E.2d 442] from finding that the absence of the safety equipment was the proximate cause of the decedent’s death merely because she entered the water voluntarily” ). And in premises liability actions, the general rule is ” that owners or operators of nonresidential swimming facilities owe an affirmative duty to exercise ordinary and reasonable care for the safety and protection of invitees swimming in the pool.” Walker v. Daniels, 200 Ga.App. 150, 155 (1) (407 S.E.2d 70) (1991).

Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach. Compare Alexander v. Harnick, 142 Ga.App. at 817 (3) (an issue of fact remained as to whether, by taking decedent onto the water without the statutorily required safety equipment, defendant helped to create her peril). Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment.

2. The Appellants’ other claims of error are moot.

Judgment affirmed.

Andrews and Rickman, JJ., concur.

Notes:

[1]The evidence showed that ” [a] rip current is a strong outflow or stream of water usually beginning at the beach, moving perpendicular to the beach, beginning with the neck and then terminating at some point beyond the surf line[.]”

[2]Fletemeyer’s testimony is not explicit as to why pocket beaches are dangerous to swimmers, although, in the context of the line of questioning, his testimony implies that the physical characteristics of pocket beaches are associated with the formation of rip currents.

[3]The evidence did not show that Playa Ventanas, in particular, had an unusually high number of drownings.

[4]The Appellants also contend that the trial court erred in granting Oglethorpe’s motion for summary judgment (1) because Oglethorpe owed a duty to exercise ordinary care for the safety of its students in the planning and implementation of its study-abroad program, and material issues of fact remain regarding Oglethorpe’s negligence, (2) the exculpatory clause in the release agreement signed by Downes is not enforceable, and (3) gross negligence cannot be waived by an exculpatory clause, and material issues of fact remain as to whether Oglethorpe was grossly negligent.


Doctrine of Primary Assumption of Risk precludes a student for suing for injuries in a for credit college karate class

Ohio holds there is no difference between a sport and recreation and a for credit class sport, assumption of the risk applies evenly to both.

Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County

Plaintiff: Aaron S. Morgan

Defendant: Kent State University et al.

Plaintiff Claims: Negligence

Defendant Defenses: primary assumption of the risk and release

Holding: for the Defendant

Year: 2016

The plaintiff enrolled in a for credit karate class with the defendant university. The syllabus stated the students would be using holds, releases, throwing punches and kicks, that the students were expected to protect themselves from. Students were also expected to wear a mouth guard and padded gloves.

The course syllabus for beginning karate listed objectives for the students, including: “[d]emonstrat[ing] basic self-defense techniques including release from various holds and counter attacks, joint locks and throws.” Additionally, the syllabus listed a variety of fighting techniques, including punches and kicks, that the students were expected to perform. Students enrolled in the class were required to wear a mouth guard and padded gloves.

One day the plaintiff was sparring with the instructor. The instructor was not wearing padded gloves. The student was expected to protect himself from punches. If the student dropped their guard, normally the exercise was paused till the student was able to protect themselves again.

In this case as the plaintiff lost his footing he dropped his guard and the instructor punched him in the face.

On October 24, 2012, while appellant was sparring with Malecki, he lost his balance and dropped his guard. When appellant dropped his guard, Malecki punched appellant in the face. According to appellant, Malecki’s palm struck him on the nose. Malecki was not wearing padded gloves when he struck appellant. Appellant’s nose immediately started bleeding. Malecki and a student employee helped to stop appellant’s bleeding and then filled out an incident report. Appellant later sought medical care and was told that he suffered a nasal fracture.

The student suffered injuries from the punch and sued. Lawsuits in against the State of Ohio are brought in the Ohio Court of Claims. Kent State University is a state school, owned by the State of Ohio.

The Court of Claims granted the defendants motion for summary judgment and the student appealed to the Ohio Appellate Court.

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

The plaintiff argued four different reasons why the Court of Claims decision should be reversed. The appellate court looked at the second argument first. That argument was the doctrine of primary assumption of risk as defined in Ohio did not apply to his claim.

The court first examined the requirements to establish a negligence claim under Ohio law.

“[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” “Under the law of negligence, a defendant’s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position.”

A defendant has a duty to plead assumption of the risk if it is applicable in a case. That duty means the defense is an affirmative defense and must be plead with the answer or lost.

Ohio recognizes three different Assumption of the Risk defenses.

Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Ohio courts have historically applied the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities.

Primary assumption of the risk is the defense that is argued when a participant in a sporting event is injured by an inherent risk of the activity.

“Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.”

An inherent risk in a sport or activity is one that is so much a part of the sport that to eliminate the risk, the sport would not exist. If there is not inherent risk, then a claim of negligence may occur.

When applied to sporting events in Ohio, the knowledge or consent of the injured plaintiff is not at issue. It is not what the plaintiff knew or assumed that is important, it is solely a question of the risks of the sport.

When considering a defense of primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Thus, even persons “‘entirely ignorant of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game. The law simply deems certain risks as accepted by plaintiff regardless of actual knowledge or consent.

Primary assumption of the risk is a look at the sport or activity, not the plaintiff, the plaintiff’s knowledge or ascent to the activity.

…’primary assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.’

If the risk is an inherent risk of the activity, then the doctrine of primary assumption of the risk applies and the defendant did not owe a duty to the plaintiff. If no duty is owed, then no breach occurred. If no duty is owed then no negligence occurred.

“The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” “‘Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.'”

The court found the risks the plaintiff suffered were an inherent risk of karate and the plaintiff assumed the inherent risks of the sport.

The Court of Claims found that “[t]here is no question that the martial arts class was a sports or recreational activity with an inherent risk of injury.” Furthermore, the Court of Claims found that “[p]hysical contact between participants during karate sparring is simply a foreseeable hazard of the activity.”

Karate is a recreational activity involving physical contact in the form of punches, kicks, and other techniques as detailed in the course outline for the beginning karate course in which appellant was enrolled. Thus, by its very nature, karate, as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated. Indeed, the course outline notes that a “mouthguard; sparring gloves; athletic supporter w/cup” are required. As danger is inherent in karate, it is common knowledge that such danger exists, and appellant’s injury occurred during the course of participating in the inherently dangerous activity, we find that the doctrine of primary assumption of the risk applies in this case.

Because the risk was inherent, it was assumed and the plaintiff had no claim because there was no negligence.

Under the doctrine of primary assumption of the risk, KSU owed no duty to protect appellant from the inherent risks of the activity. As a result, appellant is precluded from establishing a prima facie case of negligence, and the trial court did not err in granting KSU’s motion for summary judgment.

After making this finding, the court held that the plaintiff’s first and third assignment of error were moot. Moot meaning no longer at issue because of the finding on the second assignment of error by the court.

The fourth assignment of error was a procedural claim for attorney fees and the court ruled no attorney fees were to be paid to the plaintiff.

The appellate court agreed with the lower courts and the case was dismissed.

So Now What?

First it is always interesting to see how a court will rule when a student is injured in a for credit class at a college or university. The syllabus is always entered as an exhibit. Consequently, as a professor, lecturer, instructor, adjunct or whatever word someone has coined to describe the person in front of a classroom out of high school, make sure you syllabus includes the risk of the activity.

This might mean your syllabus becomes an assumption of the risk document. A syllabus in many states is an agreement between the student and the college (without a signature, but never the less a contract). Consequently use that opportunity to inform the student of the risks they may encounter in your class.

Second, if you are doing an activity where the court may not fully understand the risks of the activity, you need to prepare that defense in advance of any litigation. Do not limit your documents to identifying just the inherent risks of an activity, but all of the risks of an activity. Have videos available or on your website for your guests to review so they understand what is going to happen and what the real risks are.

Most importantly, do what you do best. Educate. The more your students know before their desks, they should fully understand all aspects of what they are going to encounter.

What do you think? Leave a comment.

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Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

Aaron S. Morgan, Plaintiff-Appellant, v. Kent State University et al., Defendants-Appellees.

No. 15AP-685

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

2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

June 7, 2016, Rendered

COUNSEL: On brief: David B. Spalding, for appellant.

On brief: Michael DeWine, Attorney General, and Lee Ann Rabe, for appellee Kent State University.

JUDGES: DORRIAN, P.J. BROWN and SADLER, JJ., concur.

OPINION BY: DORRIAN

OPINION

[**1287] (REGULAR CALENDAR)

DECISION

DORRIAN, P.J.

[*P1] Plaintiff-appellant, Aaron S. Morgan, appeals the June 19, 2015 judgment of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee Kent State University (“KSU”). For the following reasons, we affirm the judgment of the Court of Claims.

I. Facts and Procedural History

[*P2] During the period of time relevant to the present matter, appellant was a student at KSU’s Stark campus. In the fall semester 2012, appellant enrolled in a beginning karate class taught by Edward C. Malecki, an employee of KSU. Appellant had no experience in martial arts before enrolling in the beginning karate class, but had a general idea of what karate entailed through movies and television.

[*P3] The course syllabus for beginning karate listed objectives for the students, including: “[d]emonstrat[ing] basic self defense techniques including release from various holds and counter attacks, joint [***2] locks and throws.” (Apr. 17, 2015 KSU Mot. for Summ. Jgmt., Ex. D.) Additionally, the syllabus listed a variety of fighting techniques, including punches and kicks, that the students were expected to perform. Students enrolled in the class were required to wear a mouth guard and padded gloves.

[*P4] As part of the class, students were required to spar with one another and with the instructor using only “light physical contact.” (Malecki Dep. at 52.) According to Malecki, there was no bodily or facial contact permitted either by the students or the instructor. During the sparring, students practiced guarding themselves using their hands in defensive postures in front of their body. It was not uncommon for students to make mistakes, such as dropping their guard by lowering their hands. When a student would drop his or her guard, the instructor would stop the sparring procedure until the student resumed guarding himself or herself.

[*P5] On October 24, 2012, while appellant was sparring with Malecki, he lost his balance and dropped his guard. When appellant dropped his guard, Malecki punched appellant in the face. According to appellant, Malecki’s palm struck him on the nose. Malecki was not wearing [***3] padded gloves when he struck appellant. Appellant’s nose immediately started bleeding. Malecki and a student employee helped to stop appellant’s bleeding and then filled out an incident report. Appellant later sought medical care and was told that he suffered a nasal fracture.

[*P6] On July 15, 2014, appellant filed a complaint in the Court of Claims asserting claims for negligence and negligent hiring against KSU. On March 31, 2015, appellant filed a motion for partial summary judgment and attorney fees and expenses pursuant to Civ.R. 37(C). On April 17, 2015, KSU filed a motion for summary judgment and a memorandum contra appellant’s motion for partial summary judgment. On April 28, 2015, appellant filed a supplemental brief in support of his motion for attorney fees and expenses. On April 28, 2015, appellant filed a reply brief in support of his motion for summary judgment.

[*P7] On June 19, 2015, the Court of Claims filed an entry granting KSU’s motion for summary judgment and denying appellant’s motion for attorney fees and expenses.

II. Assignments of Error

[*P8] Appellant appeals and assigns the following four assignments of error for our review:

[**1288] [I.] The trial court erred in holding that the broad and general [***4] language contained in the Waiver, which neither Kent State University nor Aaron Morgan intended to apply to academic or physical education classes, effectively released the Appellee from liability resulting from the Appellant being struck in the face by his instructor during a class the Appellant subsequently enrolled in through the University.

[II.] The trial court erred in holding that the Appellant’s claim against Kent State University is barred by the doctrine of primary assumption of risk.

[III.] The trial court erred in failing to grant Plaintiff-Appellant’s Motion for Partial Summary Judgment, as to the issue of liability.

[IV.] The trial court erred by its failure to rule on Plaintiff-Appellant’s Motion for Attorney Fees and Expenses pursuant to Civ.R. 37(C).

For ease of discussion, we consider appellant’s assignments of error out of order.

III. Discussion

A. Second Assignment of Error

[*P9] In his second assignment of error, appellant asserts the Court of Claims erred in holding that his claim for negligence was barred by the doctrine of primary assumption of the risk.

[*P10] [HN1] “[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury [***5] resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981), citing Feldman v. Howard, 10 Ohio St.2d 189, 193, 226 N.E.2d 564 (1967). “Under the law of negligence, a defendant’s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position.” Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 11, citing Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 1992 Ohio 42, 597 N.E.2d 504 (1992).

[*P11] [HN2] “Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Schnetz v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 207, 2011-Ohio-3927, ¶ 21, 959 N.E.2d 554 (10th Dist.), citing Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10, 924 N.E.2d 906 (10th Dist.). Ohio courts have historically applied the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities. Crace at ¶ 12, citing Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008-Ohio-1421, ¶ 8, citing Anderson v. Ceccardi, 6 Ohio St.3d 110, 114, 6 Ohio B. 170, 451 N.E.2d 780 (1983).

[*P12] [HN3] “Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Morgan at ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio- 3656, ¶ 12, 857 N.E.2d 1255 (10th Dist.). See Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), paragraph one of the syllabus. Underlying the doctrine is the rationale that certain risks are [***6] so inherent in some activities that they cannot be eliminated, and therefore a person participating in such activities tacitly consents to the risks involved. Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist. [**1289] 1987). “The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that ‘(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.'” Morgan at ¶ 13, quoting Santho at ¶ 12.

[*P13] “‘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.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (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.” Id.

[*P14] [HN4] The Supreme Court of Ohio has explained the applicability of the doctrine of primary assumption of the risk and the rationale underlying it as follows:

Acts that would give rise to tort liability for negligence on a city street or in a backyard are not negligent in the context of a game where such an act is foreseeable and within the rules. For instance, a golfer who hits practice balls in his backyard [***7] and inadvertently hits a neighbor who is gardening or mowing the lawn next door must be held to a different standard than a golfer whose drive hits another golfer on a golf course. A principal difference is the golfer’s duty to the one he hit. The neighbor, unlike the other golfer or spectator on the course, has not agreed to participate or watch and cannot be expected to foresee or accept the attendant risk of injury. Conversely, the spectator or participant must accept from a participant conduct associated with that sport. Thus a player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct. Were we to find such a duty between co-participants in a sport, we might well stifle the rewards of athletic competition.

Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. See also Crace at ¶ 14.

[*P15] [HN5] When considering a defense of primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Crace at ¶ 16, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio- 379, ¶ 9, 802 N.E.2d 1116, citing Ramos v. Countryside, 137 Ill.App.3d 1028, 1031-32, 485 N.E.2d 418, 92 Ill. Dec. 607 (1985). Thus, even persons “‘entirely ignorant [***8] of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game. The law simply deems certain risks as accepted by plaintiff regardless of actual knowledge or consent.'” (Footnotes omitted.) Gentry at ¶ 12, quoting Susan M. Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002). In accordance with these principles, this court has stated that “‘primary assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.'” Morgan at ¶ 15, quoting Gehri v. Capital Racing [**1290] Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997).

[*P16] [HN6] “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” Id. at ¶ 14, citing Crace at ¶ 15, citing Gentry at ¶ 11, citing Prosser & Keeton, The Law of Torts, Section 68, at 496 (5th Ed.1984). [***9] “‘Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.'” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996). “Because of the great impact a ruling in favor of a defendant on primary assumption of risk grounds carries, a trial court must proceed with caution when contemplating whether primary assumption of risk completely bars a plaintiff’s recovery.” Gallagher at 432.

[*P17] In Crace, this court considered the applicability of the doctrine of primary assumption of the risk. In that case, Angela Crace, a student cheerleader at KSU, asserted a claim for negligence against KSU after she was severely injured during a cheerleading practice. On the day Crace was injured, the KSU cheerleading coach assigned members of the cheerleading squad, including Crace, to various positions in a maneuver known as a the “Big K.” The Big K was essentially a human pyramid that consisted of a base, a middle layer/base, and flyers; the pyramid was two and one-half people high. Spotters were positioned on the ground to catch the flyers when they dismounted the [***10] pyramid.

[*P18] Crace and several other members of the KSU cheerleading squad had successfully performed the Big K during the previous season. However, many other members of the team had neither performed nor seen the maneuver. On the day Crace was injured, the coach assigned Crace to the position of flyer. The first two attempts at the mount failed, resulting in Crace falling from about 15 feet in the air. However, the front spotter caught Crace when she fell. Before the third attempt, the coach substituted as the rear spotter a team member who had neither seen nor participated in the Big K. On the third attempt, the substitute rear spotter failed to catch Crace as she fell from approximately 15 feet in the air. As a result, Crace’s fall was unbroken, and she fell to the ground, resulting in immediate paraplegia.

[*P19] At issue in Crace was whether the doctrine of primary assumption of the risk applied to relieve KSU of liability based on the conduct of the cheerleading coach. Crace argued that the doctrine applied only to co-participants in a recreational activity. We disagreed, finding that [HN7] the doctrine of primary assumption of the risk applies to co-participants and non-participants alike. [***11] In so finding, we noted that the analysis of the doctrine focuses exclusively on the activity itself. Thus, if the activity is one that is inherently dangerous and from which risks cannot be eliminated, primary assumption of the risk is applicable. Id. at ¶ 16, citing Gehri. In so finding, we stated:

A holding to the contrary would likely shift the focus of the analysis away from the activity and its inherent risks. The analysis would then unnecessarily focus upon the extent of the defendant’s involvement and the defendant’s classification [**1291] as a participant, nonparticipant, coach, instructor, official, operator, owner, sponsor, provider, or otherwise. Injured participants would frame their allegations sufficiently to cast a liability net just beyond the reach of Marchetti and Thompson, with no regard for the inherent risks of the activity.

Id. at ¶ 25.

[*P20] We thus rejected Crace’s argument that primary assumption of the risk could not relieve a university of liability for negligence based on the conduct of one of its coaches in a cheerleading practice. Having so concluded, we next determined based on the evidence presented at trial that suffering an injury due to a fall is an inherent risk [***12] of cheerleading. Therefore, we found that the doctrine of primary assumption of the risk applied, and, as such, KSU owed no duty to protect Crace from the inherent risk of injury related to a fall while participating in cheerleading, absent a demonstration of recklessness or intentional misconduct.

[*P21] Here, appellant contends that the trial court erred in applying the doctrine of primary assumption of the risk because “the facts of this case manifestly establish that the injury sustained by [appellant] on October 24, 2012 was * * * not a ‘foreseeable’ consequence of participating in the subject Beginning Karate class.” (Emphasis omitted.) (Appellant’s Brief at 28-29.) Appellant cites the following circumstances in support of his contention: (1) all of the students in the class were “novices in martial arts”; (2) “the students were specifically assured by the instructor that there would be no bodily contact during the class and that facial contact was explicitly prohibited”; (3) “the instructor was required to wear padded, protective gloves as a further safeguard against injury”; and (4) “when a student dropped his or her guard, the instructor was required to stop the session until the [***13] student raised his or her guard.” (Appellant’s Brief at 28.)

[*P22] Appellant suggests the court consider that he had no experience in the martial arts. However, such a suggestion “shift[s] the focus of the analysis away from the activity and its inherent risks.” Crace at ¶ 25. Appellant further suggests the court consider the instructor’s actions. This essentially is a claim that the instructor was reckless. However, appellant’s complaint did not allege reckless or intentional conduct.

[*P23] Therefore, we decline to consider the same and limit our analysis to whether the doctrine of primary assumption of the risk applies to appellant’s claim for negligence. Thus, we consider whether karate is an inherently dangerous activity from which the risks cannot be eliminated. Morgan at ¶ 15; Crace at ¶ 16.

[*P24] The Court of Claims found that “[t]here is no question that the martial arts class was a sports or recreational activity with an inherent risk of injury.” (Jgmt. Entry at 5.) Furthermore, the Court of Claims found that “[p]hysical contact between participants during karate sparring is simply a foreseeable hazard of the activity.” (Jgmt. Entry at 5.) Other courts have found that participating in martial arts involves inherent risk. Levine v. Gross, 123 Ohio App.3d 326, 330, 704 N.E.2d 262 (9th Dist.1997) (finding that the plaintiff [***14] understood the “kind of risk posed by sparring and grappling in the course of a karate lesson”); Barakat v. Pordash, 164 Ohio App.3d 328, 2005-Ohio-6095, ¶ 12, 842 N.E.2d 120 (8th Dist.) (finding in the context of martial arts that “being injured in the course of a hold or maneuver is a risk that is a foreseeable and customary risk of the sport”).

[*P25] Karate is a recreational activity involving physical contact in the form of punches, kicks, and other techniques as [**1292] detailed in the course outline for the beginning karate course in which appellant was enrolled. Thus, by its very nature, karate, as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated. Indeed, the course outline notes that a “mouthguard; sparring gloves; athletic supporter w/cup” are required. (KSU Mot. for Summ. Jgmt., Ex. D.) As danger is inherent in karate, it is common knowledge that such danger exists, and appellant’s injury occurred during the course of participating in the inherently dangerous activity, we find that the doctrine of primary assumption of the risk applies in this case. Morgan at ¶ 13, citing Santho at ¶ 12. Under the doctrine of primary assumption of the risk, KSU owed no duty to protect appellant from the inherent risks of the activity. Id. at ¶ 27 [***15] . As a result, appellant is precluded from establishing a prima facie case of negligence, and the trial court did not err in granting KSU’s motion for summary judgment. Barakat at ¶ 13, citing Gentry (“Because an inherent risk was involved, recovery is dependent upon whether the defendant’s conduct was either reckless or intentional.”); Wolfe at ¶ 21.

[*P26] Accordingly, appellant’s second assignment of error is overruled.

B. First and Third Assignments of Error

[*P27] In his first assignment of error, appellant asserts that the Court of Claims erred by holding that the waiver signed by appellant released KSU from liability for the incident on October 24, 2012. In his third assignment of error, appellant asserts that the Court of Claims erred by failing to grant appellant’s motion for partial summary judgment on the issue of liability. Having overruled appellant’s second assignment of error, appellant’s first and third assignments of error are rendered moot.

C. Fourth Assignment of Error

[*P28] In his fourth assignment of error, appellant asserts that the Court of Claims erred by failing to rule on his motion for attorney fees and expenses pursuant to Civ.R. 37(C). We begin by noting that the Court of Claims in its June 19, 2015 judgment entry granting KSU’s motion for summary judgment did in fact rule on appellant’s March 31, 2015 motion for attorney fees and expenses. [***16] Specifically, the court stated: “The court finds that there was either a good reason for [KSU’s] failure to admit or the admissions sought were of no substantial importance. The court further finds that [appellant] has not suffered prejudice regarding the responses at issue. Accordingly, [appellant’s] motion for attorney fees and expenses is denied.” (Emphasis omitted.) (Jgmt. Entry, fn. 1.)

[*P29] Civ.R. 37(C) provides as follows:

Expenses on failure to admit. [HN8] If a party, after being served with a request for admission under Rule 36, fails to admit the genuineness of any documents or the truth of any matter as requested, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. Unless the request had been held objectionable under Rule 36(A) or the court finds that there was good reason for the failure to admit or that the admission sought was of no substantial importance, the order shall be made.

[*P30] Thus, [HN9] “[a] party may deny a request for admissions, but, upon motion pursuant to Civ.R. 37(C), improper [**1293] denials [***17] may subject the responding party to sanctions.” Salem Med. Arts & Dev. Corp. v. Columbiana Cty. Bd. of Revision, 82 Ohio St.3d 193, 195, 1998 Ohio 248, 694 N.E.2d 1324 (1998). “Whether such denials are subject to Civ.R. 37(C) sanctions depends upon whether the proof at trial contradicts the denial.” Id. The party denying a later-proved matter has the burden of proving that: “(1) the request for admissions was objectionable under Civ.R. 36 (A); (2) there was a good reason for the failure to admit; or (3) the matter was of no substantial importance.” Itskin v. Restaurant Food Supply Co., 7 Ohio App.3d 127, 129, 7 Ohio B. 161, 454 N.E.2d 583 (10th Dist.1982), paragraph one of the syllabus.

[*P31] “The determination of whether to award expenses and the amount thereof, pursuant to Civ.R. 37(C), necessarily involves a matter of discretion and, thus, is a matter lying within the sound discretion of the trial court.” Id. “‘[A]buse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140 (1983).

[*P32] Here, the Court of Claims found that there was either a good reason for the failure to admit or that the admissions were of no substantial importance. Appellant fails to demonstrate that the Court of Claims abused its discretion by denying the motion. Accordingly, we overrule appellant’s fourth assignment of error.

IV. Conclusion

[*P33] Having overruled appellant’s second and fourth assignments of error [***18] and rendered moot appellant’s first and third assignments of error, we affirm the judgment of the Court of Claims of Ohio.

Judgment affirmed.

BROWN and SADLER, JJ., concur.