[Cite as Kinkade v. Noblet, 2014-Ohio-3172.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
FRANCES J. KINKADE : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
HAROLD GEORGE NOBLET, ET AL. : Case No. 14CA4
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2012 CV 496
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 17, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
JOHN TARKOWSKY KENNETH R. BEDDOW
GREGORY J. TARKOWSKY 24 West Third Street
3 North Main Street Suite 204
Suite 500 Mansfield, OH 44902
Mansfield, OH 44902
MICHAEL R. HENRY
MATTHEW R. PLANEY
500 South Front Street
Suite 1200
Columbus, OH 43215
Richland County, Case No. 14CA4 2
Farmer, J.
{¶1} On October 25, 2011, appellant, Frances Kinkade, was a participant in a
Halloween parade in the city of Mansfield. She walked alongside a parade float for
appellee, All Care Services, LLC, passing out candy to spectators. When she was out
of candy, she would approach the float when it was stopped and retrieve additional
candy from workers sitting on the float. During one of those times, the float started to
move before she walked away and she was injured when the wheels of the float ran
over her foot/ankle. The float was a decorated wooden trailer pulled by a pick-up truck
being driven by appellee, Harold George Noblet.
{¶2} On April 26, 2012, appellant filed a complaint against appellees, claiming
negligence, recklessness, and/or willful disregard. Appellees filed motions for
summary judgment on July 25, 2013. By order and judgment entry filed December 27,
2013, the trial court granted the motion, finding the doctrines of primary assumption of
the risk and open and obvious applied, and there was no evidence that appellee Noblet
was reckless or willful.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING
THAT PLAINTIFF'S CLAIM IS BARRED BY THE ASSUMPTION OF RISK
DOCTRINE."
Richland County, Case No. 14CA4 3
II
{¶5} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING
THAT PLAINTIFF'S CLAIM IS BARRED BY THE OPEN AND OBVIOUS DOCTRINE."
III
{¶6} "THE TRIAL COURT ERRED IN HOLDING THAT THERE WAS NO
EVIDENCE IN THE RECORD THAT DEFENDANT HAROLD GEORGE NOBLET
ACTED RECKLESSLY."
{¶7} Appellant challenges the trial court's granting of summary judgment in
favor of appellees under two alternative doctrines, primary assumption of the risk and
open and obvious.
{¶8} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any
material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing such
evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is
made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,
Richland County, Case No. 14CA4 4
628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50
Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
{¶9} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35 (1987). We will utilize this standard in reviewing the assignments of error.
I
{¶10} Appellant claims the trial court erred in finding her claims were barred by
the primary assumption of the risk doctrine. We disagree.
{¶11} In Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431-
432, 1996-Ohio-320, Justice Resnick set forth a clear distinction between primary
assumption of the risk and implied assumption of the risk:
Although the Anderson [v. Ceccardi, 6 Ohio St.3d 110 (1983)] court
merged implied assumption of risk with contributory negligence, the court
found that two other types of assumption of risk did not merge with
contributory negligence - express (e.g., contractual) assumption of risk
and primary ("no duty") assumption of risk. Anderson's statement that
primary assumption of risk does not merge with contributory negligence is
of critical importance to our discussion here because when a plaintiff is
found to have made a primary assumption of risk in a particular situation,
that plaintiff is totally barred from recovery, as a matter of law, just as he
Richland County, Case No. 14CA4 5
or she would have been before Anderson. The net result of Anderson's
differentiation between primary and implied assumption of risk is that now
it is of utmost importance which type of assumption of the risk is put forth
as a defense. In fact, after Anderson, these two defenses are so distinct
that it is misleading that each continues to bear the title "assumption of
risk," as if the two were interrelated concepts. Due to the confusion
occasioned by continuing usage of "assumption of risk," many
commentators have advocated abolishment of the term. "[T]he concept of
assuming the risk is purely duplicative of other more widely understood
concepts, such as scope of duty or contributory negligence. * * * It adds
nothing to modern law except confusion." 4 Harper, James & Gray, Law
of Torts (2 Ed.1986) 259, Section 21.8. However, despite this confusion,
Ohio continues to recognize the term and its accompanying variations.
Primary assumption of risk is a defense of extraordinary strength.
Based on the distinction drawn in Anderson between implied assumption
of risk and primary assumption of risk, and the doctrine that a plaintiff who
primarily assumes the risk of a particular action is barred from recovery as
a matter of law, it becomes readily apparent that primary assumption of
risk differs conceptually from the affirmative defenses that are typically
interposed in a negligence case. An affirmative defense in a negligence
case typically is the equivalent of asserting that even assuming that the
plaintiff has made a prima facie case of negligence, the plaintiff cannot
recover. A primary assumption of risk defense is different because a
Richland County, Case No. 14CA4 6
defendant who asserts this defense asserts that no duty whatsoever is
owed to the plaintiff. See Prosser & Keeton, Law of Torts (5 Ed.1984)
496–497, Section 68 (Primary assumption of risk "is really a principle of no
duty, or no negligence, and so denies the existence of any underlying
cause of action."). 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.
{¶12} In applying this definition, we are further guided by the Tenth District in
Crace v. Kent State University, 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 15-17
(citations omitted):
As a result, primary assumption of the risk negates a negligence
claim because no duty is owed to protect against the inherent risks of the
recreational activity. Given this profound impact, courts should proceed
with caution when deciding to apply primary assumption of the risk.
Under primary assumption of the risk, the injured plaintiff's
subjective consent to and appreciation for the inherent risks are immaterial
to the analysis. Indeed, "those 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
Richland County, Case No. 14CA4 7
regardless of actual knowledge or consent." In accordance with these
principles, our court has previously held:
[P]rimary 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.
Gehri v. Capital Racing Club, Inc. (June 12, 1997), 10th Dist. No.
96APE10–1307, 1997 WL 324175.
On the other side, under the implied-assumption-of-the-risk
defense, a court must engage in a comparative-fault analysis. To prevail
on the defense of implied assumption of the risk, a defendant must
demonstrate that the injured participant in fact "consented to or
acquiesced in an appreciated or known risk."
{¶13} To date, Ohio courts have not addressed the issue of whether a "parade"
qualifies under the primary assumption of the risk doctrine. Employing the analysis in
Gallagher and Crace, we conclude, as did the trial court, that primary assumption of
the risk applies sub judice.
{¶14} Under Civ.R. 56, the facts construed must favorably to the non-moving
parties are as follows. Appellant was a volunteer and was given very limited
instructions as to her activity. Kinkade depo. at 49-50, 59. She was told to pass out
candy on the parade route by walking alongside the float. Id. at 50. She passed out
the candy to spectators on the parade route. She was told to refill the candy pockets
Richland County, Case No. 14CA4 8
on her apron by retrieving the candy from the float when it stopped. Id. at 50-51, 55.
She was not told where to approach the float from. Id. at 51. She admitted to never
knowing how long the float would be stopped, but knew to get away from it as quickly
as possible. Id. at 52. The apron she wore and the instructions she received were
from appellee All Care. Id. at 51, 59.
{¶15} These facts establish that appellant was a willing parade participant. Id. at
57. No other conclusion is possible. Appellant admitted it was her choice to pass out
the candy, although her primary reason was to take her daughter to the parade to ride
on the float. Id. at 57-58, 67.
{¶16} Prior to the accident, appellant stated she successfully refilled her candy
apron two times. Id. at 51. On the third trip, she walked up to the stopped float in front
of the trailer wheels as before, and retrieved candy from Marcie Crawford who was
sitting on the float in front of the wheels. Id. at 53. The float started to move and Ms.
Crawford's hand was still in the apron pouch placing the candy. Id. Appellant yelled
"[w]ait, wait, wait" and attempted to get out of the way, but her foot got caught and she
was struck and sustained injuries. Id. at 53, 61. She could not obtain candy from
anyone behind the wheels as the persons dispensing the candy were sitting on the
float in front of the wheels. Id. at 56-57. Appellant explained the float "pulled out so
quickly" that she "could not have gotten out if I wanted to." Id. at 73.
{¶17} Ms. Crawford and another witness, Bethann Chapman, were seated on
the float dispensing the candy. Although they differ as to appellant's position in
escaping the moving float, they do add evidence as to the speed and description of the
float. Crawford depo. at 19-24; Chapman depo. at 23, 25-27. A photograph attached
Richland County, Case No. 14CA4 9
to various depositions depicts the trailer that made up the float, showing the wheels
were outside the trailer bed and were clearly visible. Crawford depo. at 28-29. Both
witnesses stated the parade pace was slow, slower than a walking pace. Crawford
depo. at 19; Chapman depo. at 25, 38.
{¶18} We find the activity of walking along a moving float, distributing candy to
spectators, and refilling one's supply of candy from a float that stops and starts
throughout the parade, is an inherently dangerous activity from which risks cannot be
eliminated. The specific dangerous activity was approaching the float near the
exposed wheels that could start and stop as a result of parade traffic.
{¶19} Upon review, we find the trial court did not err in applying the primary
assumption of the risk doctrine.
{¶20} Assignment of Error I is denied.
II, III
{¶21} Appellant claims the trial court erred in finding, in the alternative, her
claims were barred by the open and obvious doctrine, and erred in finding there was no
evidence that appellee Noblet acted recklessly. We disagree.
{¶22} In Armstrong v. Best Buy, 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 5, the
Supreme Court of Ohio discussed the open and obvious doctrine as follows:
The sole issue before this court concerns the viability of the open-
and-obvious doctrine, which states that a premises-owner owes no duty to
persons entering those premises regarding dangers that are open and
obvious. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233
Richland County, Case No. 14CA4 10
N.E.2d 589, paragraph one of the syllabus. The rationale underlying this
doctrine is "that the open and obvious nature of the hazard itself serves as
a warning. Thus, the owner or occupier may reasonably expect that
persons entering the premises will discover those dangers and take
appropriate measures to protect themselves." Simmers v. Bentley Constr.
Co. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504. A shopkeeper
ordinarily owes its business invitees a duty of ordinary care in maintaining
the premises in a reasonably safe condition and has the duty to warn its
invitees of latent or hidden dangers. Paschal v. Rite Aid Pharmacy, Inc.
(1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474; Jackson v.
Kings Island (1979), 58 Ohio St.2d 357, 12 O.O.3d 321, 390 N.E.2d 810.
When applicable, however, the open-and-obvious doctrine obviates the
duty to warn and acts as a complete bar to any negligence claims.
{¶23} As the Armstrong court noted at ¶ 13, "The fact that a plaintiff was
unreasonable in choosing to encounter the danger is not what relieves the property
owner of liability. Rather, it is the fact that the condition itself is so obvious that it
absolves the property owner from taking any further action to protect the plaintiff."
{¶24} The photograph of the trailer that made up the float speaks a thousand
words. Not only were the wheels open and obvious, but appellant's two previous trips
to the same area of exposure are sufficient to support the trial court's decision.
{¶25} In O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, ¶ 73-75,
(citations omitted), the Supreme Court of Ohio discussed "recklessness" as follows:
Richland County, Case No. 14CA4 11
In Thompson v. McNeill (1990), 53 Ohio St.3d 102, 559 N.E.2d
705, we held that an actor's conduct " 'is in reckless disregard of the safety
of others if he 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 man to realize, not only that his conduct creates
an unreasonable risk of physical harm to another, but also that such risk is
substantially greater than that which is necessary to make his conduct
negligent.' " Id. at 104–105, 559 N.E.2d 705, quoting 2 Restatement of
the Law 2d, Torts (1965) 587, Section 500. Distilled to its essence, and in
the context of R.C. 2744.03(A)(6)(b), recklessness is a perverse disregard
of a known risk.***
Recklessness, therefore, necessarily requires something more than
mere negligence.***In fact, "the actor must be conscious that his conduct
will in all probability result in injury."
Although the determination of recklessness is typically within the
province of the jury, the standard for showing recklessness is high, so
summary judgment can be appropriate in those instances where the
individual's conduct does not demonstrate a disposition to perversity.
{¶26} Appellant argues appellee Noblet was aware people were approaching the
float, yet he did not look in his side mirrors before moving. Noblet depo. at 57-58, 62-
Richland County, Case No. 14CA4 12
63. Appellee Noblet stated he could not "see a whole lot behind." Id. at 57. His main
concern was with the people in front of him. Id.
{¶27} As determined by the trial court, we concur there is no evidence that
appellee Noblet's conduct rose to the level of recklessness as that term is explained
above.
{¶28} Assignments of Error II and III are denied.
{¶29} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Baldwin, J. concur.
SGF/sg