West v. Devendra

[Cite as West v. Devendra, 2012-Ohio-6092.]

STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

JANICE WEST, ) CASE NO. 11 BE 35
)
PLAINTIFF-APPELLANT, )
)
VS. ) OPINION
)
GARY DEVENDRA, )
)
DEFENDANT-APPELLEE. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 10CV380.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellant: Attorney John Jurco
P.O. Box 783
St. Clairsville, Ohio 43950

For Defendant-Appellee: Attorney Cari Fusco Evans
4505 Stephen Circle, N.W., Suite 100
Canton, Ohio 44718

JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

Dated: December 21, 2012
[Cite as West v. Devendra, 2012-Ohio-6092.]
VUKOVICH, J.

{¶1} Plaintiff-appellant Janice West appeals the decisions of the Belmont
County Common Pleas Court granting summary judgment for defendant-appellee
Gary Devendra and denying her motion to amend her complaint.
{¶2} Three issues are raised regarding the granting of summary judgment
for Devendra. The first is whether there is genuine issue of material fact as to
whether West was involved in a recreational activity when she was thrown off the
ATV. The second is whether the accident that occurred was an inherent risk
associated with driving and riding an ATV. The third is whether there is a genuine
issue of material fact as to whether Devendra was acting recklessly when he was
operating the ATV. The final issue is whether the trial court abused its discretion in
denying appellant’s motion to amend her complaint.
{¶3} For the reasons expressed below, there is no merit with the arguments
raised. Thus, the trial court’s decision to grant summary judgment for Devendra and
the trial court’s denial of West’s motion to amend the complaint is hereby affirmed.
Statement of the Facts
{¶4} On the evening of December 19, 2009 West and Devendra decided to
enjoy the first snow of the year by taking the Yamaha ATV that they jointly owned for
a ride to view the beautiful landscape. (West Depo. 19; Devendra Depo. 34, 40.)
West and Devendra were in a relationship and they lived together in Devendra’s
house. Devendra was driving the ATV and West was riding on the back. (West
Depo. 28.) After they had been riding for 45 minutes to 1 hour, Devendra indicated
that his hands were getting cold. (West Depo. 28-29; Devendra Depo. 40-41.) West
suggested that Devendra use the sleeves/hand warmers that he had previously
purchased to keep his hands warm. (West Depo. 29; Devendra 40-41.) Devendra
agreed and returned to the garage to get the sleeves. (West Depo. 29; Devendra 40-
41.) He put the sleeves/hand warmers on the handlebars, pulled the ATV out the
garage a little bit and then got on it. (Devendra Depo. 41-43.) This was the first time
Devendra had used any type of sleeves/hand warmers and he was not given any
instructions on how to use them. (Devendra Depo. 27-28.) He then told West to get
 -2-

on, which she did. (West Depo. 31; Devendra Depo. 42, 44.) He turned the ATV on.
(Devendra Depo. 44.) West heard the motor roar loudly. (West Depo. 31.) Devendra
contends it was idling normally when he turned it on and then made the loud roar
when he gave it gas. (Devendra Depo. 55, 63.) West claims that after she heard the
engine roar loudly, she attempted to put the ATV in neutral, but could not reach the
gear shift from where she was sitting. (West Depo. 31; Devendra 49.) Devendra
gave the ATV gas (it was already in reverse) and it took off backwards at a high
speed. (Devendra Depo. 49, 52, 55, 63.) He testified that the throttle was stuck due
to the sleeves/hand warmers. (Devendra Depo. 57.) West was thrown off the ATV
and landed in the driveway on her face. (West Depo. 34; Devendra Depo. 42.) As a
result of the accident she fractured her back and tore the meniscus in her knee.
(West Depo. 40, 45.) Her back has gotten better, but her knee required surgery.
(West Depo. 42, 45.) Devendra testified that he tried to stop the ATV by using the
hand brakes; he did not try to put the ATV in neutral or push the engine stop switch
because he did not want to release the hand brakes. (Devendra Depo. 70.) He also
stated that he did not purposefully cause the accident. (Devendra Depo. 59.)
Devendra was also thrown off of the ATV during the accident.
{¶5} As a result of her injuries West filed a complaint alleging that Devendra
acted negligently and that his negligence caused her injuries. 08/23/10 Complaint.
Devendra filed his answer and defenses claiming, among other things, that at the
time of the accident they were engaged in a recreational activity and thus, he could
not be liable unless West shows that he acted recklessly or intentionally. 09/27/10
Answer.
{¶6} Following discovery, Devendra filed a motion for summary judgment.
06/23/11 Motion. West filed a motion in opposition and a motion to amend the
complaint to include the allegation that Devendra acted recklessly. 07/07/11 Motions.
Devendra filed a reply and a motion in opposition to the motion to amend the
complaint. 07/14/11 and 07/20/11 Motions. He asserted that none of the evidence
produced during discovery indicated that he acted recklessly. 07/20/11 Motion.
{¶7} After reviewing the parties’ arguments, the trial court granted the motion
for summary judgment finding that during the accident, the parties were engaged in a
 -3-

recreational activity and that there was no showing of recklessness. The trial court
also denied the motion to amend the complaint because nothing in the record
indicated that Devendra’s conduct rose above the level of negligence. 09/07/11 J.E.
{¶8} West timely appeals those decisions.
First Assignment of Error
{¶9} “The trial court erred in sustaining the Defendant-Appellee, Gary
Devendra’s motion for summary judgment.”
{¶10} In reviewing a summary judgment award, we apply a de novo standard
of review. Cole v. Am. Industries & Resources Corp., 128 Ohio App.3d 546, 552, 715
N.E.2d 1179 (7th Dist.1998). Thus, we apply the same test as the trial court. Civ.R.
56(C) provides that the trial court shall render summary judgment if no genuine issue
of material fact exists and when construing the evidence most strongly in favor of the
nonmoving party, reasonable minds can only conclude that the moving party is
entitled to judgment as a matter of law. State ex rel. Parsons v. Flemming, 68 Ohio
St.3d 509, 511, 628 N.E.2d 1377 (1994). A “material fact” depends on the
substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104
Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995), citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
{¶11} West’s first argument is that there exists a genuine issue of material
fact as to whether the parties were engaged in a recreational activity.
{¶12} The Ohio Supreme Court has stated:

Where 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” as defined in Sections 500 and 8A of
the Restatement of Torts 2d.

Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), syllabus.
{¶13} The Marchetti Court stressed that the underlying policy behind the
holding was to “strike a balance between encouraging vigorous and free participation
in recreational or sports activities, while ensuring the safety of the players.” Gentry v.
 -4-

Craycraft, 101 Ohio St. 3d 141, 144, 2004-Ohio-379, 802 N.E.2d 1116, ¶ 10, citing
Marchetti at 99. The Court reasoned that spectators as well as participants “must
accept from a participant’s conduct associated with that sport” or activity and that
where injuries stem from “conduct that is a foreseeable, customary part” of the
activity, the defendant “cannot be held liable for negligence because no duty is owed
to protect the victim from that conduct.” Gentry at ¶ 10, citing of Thompson v.
McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990).
{¶14} The Court in reaching that holding was applying “primary” assumption-
of-risk principles in limiting the defendant's liability. Gentry at ¶ 11. Primary
assumption of the risk is essentially a principle of no duty, or no negligence. Id.,
citing Prosser & Keeton, The Law of Torts 496, Section 68 (5th Ed.1984).
{¶15} Our sister districts have further explained:

[T]he limitation of liability for negligence during recreational
activities is based on the notion that some risks are so inherent in an
activity that the risks cannot be eliminated. By choosing to participate
in an activity, the participant implicitly accepts those risks. The types of
risks associated with the activity are those that are foreseeable and
customary risks of the sport or recreational activity. The doctrine
relieves persons providing or taking part in a recreational activity from
any duty to eliminate the risks that are so inherent in the activity or sport
because such risks cannot be eliminated.

Citations omitted. Curtis v. Schmid, 5th Dist. No. 07CAE 11 0065, 2008-Ohio-5239,
¶ 54, quoting, Pope v. Willey, 12th Dist. No. CA2004-10077, 2005-Ohio-4744, ¶ 11.
{¶16} Appellate courts have consistently held that driving and riding on an
ATV is a recreational activity. Curtis at ¶ 55-57; Pope at ¶ 10; Paxton v. Ruff, 12th
Dist. No. CA97-04-089, 1998 WL 8695 (Jan. 12, 1998). See Taylor v. Mathys, 3d
Dist. No. 14-04-32, 2005-Ohio-150. Moreover, the Curtis court went even further to
state that losing control and flipping an ATV is a foreseeable and customary risk
associated with the activity of driving or riding on an ATV. Curtis at ¶ 56, citing
 -5-

Paxton. Thus, that court concluded that the injured party assumed the risk that the
ATV, on which she was a passenger, could flip. Curtis.
{¶17} West acknowledges that prior to the accident while they were riding,
they were engaged in a recreational activity. However, she tries to differentiate
herself from the above cases by claiming that the act of backing up to get away from
the garage so that they could turn the ATV around and go forward in the snow was
not a recreational activity. “It was just driving, not fun, joyful activity.” Brief page 13.
{¶18} We disagree with this position. Although Devendra stated in his
deposition that the act of backing up was not a joyful activity, that statement is not a
legal determination on whether riding the ATV in reverse so that it can turn around to
go forward is a recreational activity. (Devendra Depo. 66). The fact that they had to
back up to get the ATV in a position that it could go forward does not render the
backing up not part of the recreational activity. Whether one is riding in reverse “for
fun” or riding in reverse so that the ATV can be turned around to ride forward, the
result is the same: the ATV is being used for recreational purposes.
{¶19} The cases from our sister districts clearly state that driving and riding on
an ATV is a recreational activity. Those cases do not differentiate between going
forward or backing up. The only opinion West can cite this court to support her
position is a dissenting opinion from the Eleventh District Court of Appeals. Getsy v.
Eastham, 11th Dist. No. 2008-T-0032, 2008-Ohio-6767. That dissent found that the
Yamaha Rhino that the parties were riding was a utility vehicle, small work truck, not
an ATV. Id. at ¶ 32. The dissenting opinion concluded that summary judgment
should not have been granted and stated:

Here, appellant and appellee disagree as to what happened.
Appellant testified that appellee was doing a brodie or a ‘donut,’ which
cause him to fall out of the Yamaha Rhino. Appellee, on the other
hand, indicated that the wheel slipped on a root/rock. Clearly, this is a
material, disputed fact regarding whether they were involved in a sport,
or were merely taking a ride. Riding on the Yamaha Rhino is not in and
of itself a recreational activity. The vehicle is designed for this purpose.
 -6-

Because this is summary judgment and a material issue of fact exists,
this matter must be decided by a jury.

Citations omitted. Id. at ¶ 36.
{¶20} Even if we were to find this dissenting opinion persuasive, the facts in
that case are distinguishable from the facts sub judice. There is no dispute that the
vehicle West and Devendra were riding is an ATV, not a utility vehicle. Arguably, a
utility vehicle designed for work purposes is substantially different from an ATV
designed for recreational use. Furthermore, Devendra testified that in his opinion the
throttle stuck and caused him to lose control of the vehicle. There is no other
testimony as to what caused the accident. Thus, the cause of the accident is not
disputed as it was according to the dissent in Getsy.
{¶21} Therefore, for the above stated reasons, this first argument under this
assignment of error is without merit; driving and riding the ATV in this case is a
recreational activity.
{¶22} The second argument West makes under this assignment of error is
that there was a genuine issue of material fact as to whether the risk of harm was
inherent.
{¶23} As stated above, our sister district found that losing control and flipping
an ATV is a foreseeable and customary risk associated with the activity of driving or
riding on an ATV. Curtis at ¶ 56. The Curtis court’s holding is logical and we adopt it
as our own. Devendra testified that the throttle stuck. This caused him to lose
control of the ATV, which in turn caused West to be thrown off of the ATV. While it is
not clear that the ATV flipped, flipping an ATV would cause the passenger to be
thrown. Thus, being thrown from the ATV is a foreseeable and customary risk
associated with driving or riding an ATV.
{¶24} West attempts to argue that the risk is not inherent by citing us to our
decision in Byer v. Lucas, 7th Dist. No. 08-NO-351, 2009-Ohio-1022. In Byer we
held that the risks Byer encountered during the hayride were not an ordinary and
foreseeable part of a hayride. In Byer, there were two wagons, one wagon returned
on a safe route, while the other wagon, the one Byer was riding in, went down a hill.
 -7-

There was no dispute that the wagon Byer was on careened down the hill out of
control and jackknifed to a stop causing its passengers to be thrown from the wagon.
We indicated that that was not an inherent risk of a hayride. Id. at ¶ 39.
{¶25} Byer is instructional, but it is also distinguishable from the facts at hand.
That decision demonstrates that there are risks that are inherent in an activity and
those that are not. In Byer, we referenced Byer’s concession that inherent risks of a
hayride include getting scratched by tree branches, being bounced around on the
wagon and even losing one’s balance and falling off the wagon. Id. at ¶ 30. The
inherent risk did not include the wagon careening down a hill because the driver
choose to leave the designated route, jackknifing and throwing passengers from the
wagon; the harm to the passengers in Byer was not foreseeable because of the
driver’s actions. Consequently, in that case, we held that the injuries were not
caused by the assumption of a known risk associated with a recreational activity.
Here, as explained above, the known inherent risk associated with driving and riding
an ATV is losing control of the vehicle, the vehicle flipping and the passenger and
driver being thrown from it. The injuries here were consistent with the known risk.
Furthermore, nothing in the record suggests that West took an action like the driver in
Byer, i.e. choosing to depart from the safe designated route which caused the normal
inherent risk associated with the recreational activity to be raised to a level that is not
usually associated with that activity.
{¶26} Admittedly, the evidence indicates that a possible cause of the accident
was losing control because of a stuck throttle due to the use of hand warmers. West
claims that a stuck throttle is not an inherent risk associated with riding and driving an
ATV. Case law is clear that loss of control is an inherent risk in riding and driving an
ATV. Examples of what causes a driver to lose control of the ATV could be because
of speed, terrain or failure to follow safety procedures. What causes the driver to
lose control is better addressed when determining whether the driver acted
intentionally, recklessly or negligently. Accordingly, the throttle being stuck from use
of hand warmers that Devendra was not familiar with goes to whether his conduct
was intentional, reckless or negligent. Along this same line of reasoning, we note
that had the stuck throttle been caused by a mechanical error, then most likely the
 -8-

accident would not have been an inherent risk of riding and driving the ATV.
However, that was not the case here. Devendra’s own testimony shows the throttle
was stuck because of user error; Devendra had never used the hand warmers before
and had no instructions of whether they were the appropriate hand warmers for that
ATV.
{¶27} As such, considering all the above and the facts of this case, we hold
that losing control of the ATV and being thrown from it are inherent risks associated
with the recreational activity.
{¶28} In anticipation of that holding, West contends that since Devendra
testified that neither he nor West foresaw the accident occurring, there is a genuine
issue of material fact as to whether the accident was an inherent risk of the
recreational activity. West is accurate in her description of Devendra’s testimony.
However, the testimony was specific as to whether this normally happens when he
was driving an ATV. It was not a general question as to whether or not a risk
associated with an ATV is the driver losing control and the passenger being injured. It
is a legal determination as to what are the inherent risks associated with riding and
driving an ATV. As aforementioned, case law has held and we agree that losing
control of the ATV and it flipping is an inherent risk of riding or driving an ATV. Thus,
this argument fails.
{¶29} Next, West argues that there is a genuine issue of material fact as to
whether the risk of harm was inherent because Devendra exercised exclusive control
over the ATV and he did not follow safety instructions and he did not eliminate the
risk when he could have. This argument encompasses the position that Devendra
did not use the engine stop switch, place the machine in neutral or use the foot brake
when he lost control of the ATV. It also includes the fact that this was the first time
Devendra had ever used hand warmers.
{¶30} The Ohio Supreme Court has indicated that the types of risks
associated with the activity are those that are foreseeable and customary risks of
the sport or recreational activity. Thompson v. McNeil, 53 Ohio St.3d 102, 104-
106, 559 N.E.2d 705 (1990). See also Pope, 12th Dist. No. CA2004-10077, 2005-
Ohio-4744, ¶ 15. West’s arguments address Devendra’s actions in operating the
 -9-

ATV. They do not address the inherent risks associated with the recreational activity
of riding and driving an ATV. Thus, these arguments are not appropriate arguments
to make at this point. At this junction in the case we are solely determining what
standard of care applies, not whether his actions violated that standard of care. If we
determine that the parties were engaged in a recreational activity and the driver lost
control of the ATV causing the passenger to be thrown from the vehicle was a risk
associated with the recreational activity, then Devendra is only liable if his operation
of the ATV was either reckless or intentional. He is not liable for negligent actions in
that scenario. If the driver losing control and the passenger being thrown from the
ATV are not risks inherent in the driving and riding of the ATV then a negligence
standard applies. Devendra’s actions in operating the ATV do not impact the
determination of what are the inherent risks associated with the recreational activity.
We only look to his actions to determine whether he violated the standard of care, not
to determine the inherent risks that are associated with ATV riding and driving. See
McNeil and Pope.
{¶31} Therefore, for all the expressed reasons, we hold that the accident was
an inherent risk associated with ATVs. Accordingly, Devendra is only liable if his
operation of the ATV was either reckless or intentional; the principles of negligence
do not apply.
{¶32} The next argument under this assignment of error is that there is a
genuine issue of material fact as to whether Devendra’s conduct rose to the level of
recklessness. The trial court determined as a matter of law that Devendra did not act
recklessly.
{¶33} Recklessness was not pled in the complaint, only negligence was.
Thus, for that reason alone, the trial court’s grant of summary judgment to Devendra
was appropriate. It was not required to engage in the analysis of whether Devendra’s
conduct rose to the level of recklessness. However, since it did determine that he did
not act recklessly and since the propriety of that determination is helpful in the
resolution of the second assignment of error, we will also review whether there is a
genuine issue of material fact as to whether Devendra acted recklessly in his
operation of the ATV.
 -10-

{¶34} In finding that he did not act recklessly, the trial court reasoned:

Plaintiff has asserted that Defendant’s failure to abide by the
written instructions of the owner’s manual (failing to hit kill switch, failing
to inspect the hand warmer, failing to change gears to neutral, failing to
use the brake pedal), all fell outside the scope of the rules and customs
of usage for the ATV and created an unreasonable risk of harm to
himself and to Plaintiff. Such assertions, in and of themselves, do not
establish the necessary element of recklessness, nor do they establish
sufficient facts from which an inference may be drawn as to a genuine
issue of material fact that Defendant was reckless.

In this case, all evidence in the record demonstrates that
Defendant failed to use ordinary care when operating the ATV. To
establish the element of ‘recklessness’, in the context of operation of
ATV, there would have to be some evidence that Defendant acted, or
failed to act in a manner consistent with intentional disregard for the
safety of others (Plaintiff).

In the instant case, Plaintiff failed to allege intentional conduct by
Defendant in causing her injury on the ATV in her original complaint.
Plaintiff, after the discovery deposition of Plaintiff and Defendant,
attempted to amend her complaint to allege recklessness. However,
Plaintiff has admitted, in her deposition, that Defendant was not horsing
around, nor was he doing things that could cause an accident to
happen, nor did he seek to injure her. (See, Plaintiff’s Depo., pp. 51-
53). Thus, since the parties participated together in a recreation
activity, liability could only attach to Defendant’s actions if they were
found to be reckless.

In Thompson v. McNeil (1990), 53 Ohio St.3d 102 the
Supreme Court, relying on the Restatement of Torts 2d, defined
‘recklessness’ as follows:
 -11-

“The 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. . . while an act to be reckless must be
intended by the actor, the actor does not intend to cause the harm
which results from it. . . the risk must itself be an unreasonable one
under the circumstances. . .” Id. at 104-105. [Emphasis added]

What constitutes an unreasonable risk under the
circumstances must be delineated by the rules and/or customs
that shape the participant’s ideas of foreseeable conduct in the
course of the recreational activity. Id. at 105. Simply stated, there is
nothing in the record of this case indicating that Defendant’s conduct
rose above the level of negligence, to that of recklessness, in the
context of ATV operation. In fact, Defendant’s actions in operating
the ATV on the day of the incident were agreed to, suggested by,
and/or in accord with Plaintiff’s ideas of foreseeable conduct in
the operation of an ATV. The evidence in the record demonstrates
that Defendant was attempting to operate the ATV in a reasonable
manner with consent and agreement of Plaintiff.

Plaintiff cannot now argue that the conduct of Defendant, in
placing the hand warmers of the vehicle, was reckless when she not
only recommended that conduct, but consented to it. In addition,
though Plaintiff, who is now educated to the fact that riding an ATV is a
recreational activity requiring a reckless standard of care, has
attempted to argue that Defendant’s failure to follow certain written
instructions contained in the operation manual, in and of itself,
establishes reckless conduct, the Court finds, based upon the evidence
 -12-

in the depositions of Plaintiff and Defendant, that such assertions fails
to meet the necessary evidentiary threshold to allow for an inference to
be drawn to establish the element of recklessness. Rather,
Defendant’s failure to act in accord with written manual instructions,
while reacting to an obvious emergency (open throttle) for which he
could not determine the cause, does not constitute an act intended
by Defendant to create an unreasonable risk of harm to another
(Plaintiff), or to himself, for that matter. Rather, Defendant, while
attempting to react to the open throttle, used the brakes on the vehicle
in an effort to bring it to a stop. His inability to react to the emergency
by immediately placing the vehicle into neutral, releasing his hands
from the handle bars and/or throttle, and/or using the foot brake (while
Plaintiff, an unauthorized passenger, was reaching around him), simply
does not give rise to an argument that he intended to cause an
unreasonable risk of harm to Plaintiff, as well as himself.

Instead the evidence demonstrates Defendant’s genuine
negligent struggle to control the vehicle when he did not know the
reason which caused the open throttle to occur. Plaintiff has failed to
provide sufficient evidence upon which to base any argument of
recklessness as to Defendant’s operation of the ATV and, therefore, * *
* Defendant’s Motion for Summary Judgment must be Sustained.

Emphasis in original. 09/07/11 J.E.
{¶35} In this case, we do not have to address whether his actions were
intentional; the parties agree that the evidence does not even remotely suggest that
his actions were intentional. Instead, the disagreement lies with whether there is a
genuine issue of material fact as to whether his actions were reckless.
{¶36} The trial court accurately states the definition of recklessness and it
also accurately references the facts of this case. It is noted that the trial court
continually references the fact that Devendra did not know the reason for the open
throttle as the accident was occurring. That statement is correct. During his
 -13-

deposition, Devendra stated that he now believes the hand warmer caused the
throttle to stick. (Devendra Depo. 51, 57.) West’s testimony is clear that she did tell
Devendra to go get the hand warmers and that she knew that the ATV was not
intended to carry passengers. (West Depo. 22-24, 29.) The fact that she did these
actions shows that she consented to the risk and assumed the risk.
{¶37} The trial court’s reasoning specifically stated that Devendra’s conduct
was negligent, but did not rise to the level of recklessness. While the trial court does
correctly reference the definition of reckless conduct, it is also helpful in this situation
to look at comment g to Section 500 of the Restatement of Torts 2d, which the Ohio
Supreme Court quoted in a footnote in Marchetti, 53 Ohio St.3d at 100, 559 N.E.2d
699, fn. 3. Comment g states:

g. Negligence and recklessness contrasted. Reckless
misconduct differs from negligence in several important particulars. It
differs from that form of negligence which consists in mere
inadvertence, incompetence, unskillfulness, or a failure to take
precautions to enable the actor adequately to cope with a possible or
probable future emergency, in that reckless misconduct requires a
conscious choice of a course of action, either with knowledge of the
serious danger to others involved in it or with knowledge of facts which
would disclose this danger to any reasonable man. It differs not only
from the above-mentioned form of negligence, but also from that
negligence which consists in intentionally doing an act with knowledge
that it contains a risk of harm to others, in that the actor to be reckless
must recognize that his conduct involves a risk substantially greater in
amount than that which is necessary to make his conduct negligent.
The difference between reckless misconduct and conduct involving only
such a quantum of risk as is necessary to make it negligent is a
difference in the degree of the risk, but this difference of degree is so
marked as to amount substantially to a difference in kind.

Id.
 -14-

{¶38} The only potential way that it could be concluded that he acted
recklessly would be to say that for having never used hand warmers it was reckless
to use them the first time without consulting an instructional guide and while having a
passenger ride. Yet, the failure to consult instructions is a failure to take a
precaution, not a reckless action. Thus, we agree with the trial court’s reasoning.
{¶39} In further support of the rationale that Devendra did not act recklessly
are the warnings found on the ATV about passengers riding it.
{¶40} There are two different warnings on the ATV regarding passengers.
The first states:

WARNING. NEVER ride as a passenger. Passengers can
cause a loss of control resulting in SEVERE INJURY or DEATH.

The second states:

WARNING. * * * NEVER operate:

* * * with a passenger – passengers affect balance and steering
and increase risk of losing control.

{¶41} The trial court found that West disregarded the warnings. West
contends that the warnings mean that the driver assumes the risk of the passenger’s
status causing the driver to lose control. She asserts that the warnings do not mean
that the passenger assumes the risk of the driver “losing control by himself.” Brief
page 28.
{¶42} West’s position is inaccurate; they do not mean that the driver solely
assumes the risk. The first warning in particular states “NEVER ride as a
passenger.” This warning is directed to every potential rider, even a potential
passenger. If it was solely directed to the driver it would state something like
“NEVER operate with a passenger,” (which is a statement in the second warning).
{¶43} Therefore, it cannot be concluded that the driver only assumes the risk
when a passenger is on the ATV. Both assume the risk. West acknowledged that
she saw these warnings and that she knew the manufacturer did not recommend a
passenger riding on this ATV.
 -15-

{¶44} Furthermore, it is difficult to forget the fact that she co-owns this ATV
and drives it about half of the time (even with a passenger on it). Therefore, it is
unfair to conclude that she does not assume any risk for failing to abide by these
warnings when she was aware of them not only as a passenger, but also as an
owner and driver. Thus, for all the above reasons, the trial court’s conclusion that
there was no evidence that Devendra acted recklessly is correct.
{¶45} In all, this assignment of error lacks merit. West and Devendra were
engaged in a recreational activity when the accident occurred. Losing control of the
ATV and having both the passenger and driver thrown from the vehicle is an inherent
risk in ATV driving and riding. Thus, the accident was an ordinary risk associated
with the recreational activity. Consequently, the applicable standard of care needed
to find Devendra liable is reckless conduct or intentional conduct. As the complaint
only alleged negligent conduct on Devendra’s part summary judgment was
appropriately granted. Regardless, a review of the file indicates that there is no
evidence that Devendra’s conduct rose to the level of recklessness.
Second Assignment of Error
{¶46} “The trial court erred in overruling the Plaintiff-Appellant, Janice West’s
motion to amend her complaint.”
{¶47} Civ.R. 15(A) governs amendments to pleadings and states:

A party may amend his pleading once as a matter of course at
any time before a responsive pleading is served or, if the pleading is
one to which no responsive pleading is permitted and the action has not
been placed upon the trial calendar, he may so amend it at any time
within twenty-eight days after it is served. Otherwise a party may
amend his pleading only by leave of court or by written consent of the
adverse party. Leave of court shall be freely given when justice so
requires. A party shall plead in response to an amended pleading
within the time remaining for response to the original pleading or within
fourteen days after service of the amended pleading, whichever period
may be the longer, unless the court otherwise orders.
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Civ.R. 15
{¶48} West acknowledges that she was required to obtain leave prior to
amending her complaint to include a cause of action that alleged that Devendra
acted reckless in his operation of the ATV.
{¶49} The Ohio Supreme Court has stated that the language of Civ.R. 15(A)
favors a liberal amendment policy. Wilmington Steel Products, Inc. v. Cleveland
Elec. Illuminating Co., 60 Ohio St. 3d 120, 121-22, 573 N.E.2d 622 (1991). “[A]
motion for leave to amend should be granted absent a finding of bad faith, undue
delay or undue prejudice to the opposing party.” Hoover v. Sumlin, 12 Ohio St.3d 1,
6, 465 N.E.2d 377 (1984). A reviewing court’s role is to determine whether the trial
judge's decision was an abuse of discretion, not whether it was the same decision we
might have made. State, ex rel. Wargo, v. Price, 56 Ohio St.2d 65, 381 N.E.2d 943
(1978). ‘The term “abuse of discretion” connotes more than an error of law or of
judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable.’” Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d
1248 (1985).
{¶50} As was discussed in the first assignment of error, the trial court found
that there was no genuine issue of material fact that Devendra acted recklessly in
operating the ATV. Consequently, it denied the motion to amend the complaint
because the record did not disclose any evidence of reckless actions on Devendra’s
part. The trial court was correct in that determination. Accordingly, the decision to
deny the motion to amend the complaint cannot be classified as an abuse of
discretion. Without any evidence of recklessness, allowing the amending of the
complaint would not save West’s lawsuit from dismissal. Consequently, this
assignment of error lacks merit.
Conclusion
{¶51} Both assignments of error lack merit. The trial court’s grant of summary
judgment in Devendra’s favor and the trial court’s denial of West’s motion to amend
the complaint are hereby affirmed.

Waite, P.J., concurs.
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DeGenaro, J., concurs.