[Cite as Davis v. Dungeons of Delhi, 2019-Ohio-1457.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MCKENZIE DAVIS, : APPEAL NO. C-180242
TRIAL NO. A-1704819
and :
JENNIFER BLUM , : O P I N I O N.
Plaintiffs-Appellants, :
vs. :
DUNGEONS OF DELHI, :
MARK MATTHEW MATEIKAT, :
and :
MARK MATEIKAT, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: April 19, 2019
The Law Offices of Blake R. Maislin, LLC, and Blake R. Maislin, for Plaintiffs-
Appellants,
Droder & Miller Co., L.P.A., Richard J. Rinear and Bradley A. Powell, for
Defendants-Appellees.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} McKenzie Davis and her mother Jennifer Blum (“the plaintiffs”)
appeal the trial court’s entry of summary judgment in favor of the defendants on the
plaintiffs’ claims for negligence and civil assault stemming from injuries that Davis
sustained at a haunted house attraction. Because genuine issues of material fact
remain, we reverse the trial court’s judgment.
{¶2} In April 2014, the plaintiffs filed an action against “Delhi Township,
Ohio, DBA Dungeons of Delhi,” the trustees of Delhi Township, and Mark Matthew
Mateikat (“Matt Mateikat”), alleging that the township and its trustees operated a
haunted house attraction known as “Dungeons of Delhi,” and that Davis was injured
when Matt Mateikat, dressed as a ghoul, ran out of the haunted house, chased her,
and caused her to fall. The complaint included a demand that the plaintiffs’ health
insurer be required to assert its subrogation interests.
{¶3} The plaintiffs amended their complaint to name as additional
defendants Del-Fair, Inc., the owner of the parcel on which the haunted house was
situated, and Boy Scouts of America, Dan Beard Council, Inc., and Learning for Life,
Inc., (hereinafter “Boy Scouts”), entities that received funds from the sale of tickets
for the haunted house.
{¶4} The plaintiffs amended their complaint again to name as defendants
two Delhi Township law enforcement officers Joe Middendorf and Gary Schlomer,
Dungeons of Delhi, Mark Mateikat, and John Doe, and alleged that each of them was
involved in the operation of the haunted house.
{¶5} The plaintiffs referred to defendants Delhi Township, its trustees, its
law enforcement officers Middendorf and Schlomer, and John Doe collectively as
“Delhi.” The plaintiffs alleged that Mark Mateikat was the father of Matt Mateikat.
They alleged that defendant Dungeons of Delhi (“Dungeons”) was an unincorporated
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OHIO FIRST DISTRICT COURT OF APPEALS
association of individuals and/or entities that included Delhi, Matt Mateikat, Mark
Mateikat, and John Doe.
{¶6} The plaintiffs asserted negligence claims against Delhi, Dungeons, Del-
Fair, Boy Scouts, Dan Beard Council, and Learning for Life. The plaintiffs asserted a
civil assault claim against the same defendants and against Matt Mateikat in his
individual capacity. The plaintiffs asserted no claims against Mark Mateikat in his
individual capacity; he was solely alleged to be a member of Dungeons.
{¶7} In 2015, the plaintiffs dismissed with prejudice their claims against
Delhi, Boy Scouts, and Del-Fair, Inc. In March 2016, the trial court granted
summary judgment for the Mateikats and denied summary judgment for Dungeons.
In January 2017, the plaintiffs filed a Civ.R. 41(A)(1)(a) notice of voluntary dismissal
of their complaint.
{¶8} In September 2017, Davis and Blum refiled their action pursuant to
Ohio’s saving statute, R.C. 2305.19, against all defendants except Boy Scouts and
Del-Fair, Inc. Pursuant to local rule, the new action was assigned to the common
pleas judge who had been assigned the original action.
{¶9} In the refiled action, the plaintiffs asserted that either Matt Mateikat
or John Doe was the costumed employee who chased Davis. The plaintiffs reasserted
negligence claims against Delhi and Dungeons. The plaintiffs asserted a civil assault
claim against Delhi and Dungeons, and against Matt Mateikat and John Doe in their
individual capacities. Again, the plaintiffs asserted no claims against Mark Mateikat
in his individual capacity; he was solely alleged to be a member of Dungeons.
{¶10} The plaintiffs dismissed with prejudice their claims against Delhi and
their health insurer.
{¶11} The Mateikats filed a motion to dismiss the plaintiffs’ claims against
them. In December 2017, the trial court converted the motion to dismiss to a motion
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OHIO FIRST DISTRICT COURT OF APPEALS
for summary judgment and granted summary judgment in favor of the Mateikats. In
April 2018, the trial court granted summary judgment in favor of Dungeons.
{¶12} The plaintiffs now appeal, arguing in two assignments of error that the
trial court erred by granting the motions for summary judgment.
A. Effect of the Voluntary Dismissal
{¶13} As a preliminary matter, we must determine the effect of the plaintiffs’
January 2017 notice of voluntary dismissal upon their refiled claims against the
Mateikats, who had previously been granted summary judgment in their favor. The
plaintiffs assert that the March 2016 entry of summary judgment in favor of the
Mateikats was not a final appealable order because the entry did not include Civ.R.
54(B) language signifying that there was no just reason for delay and did not satisfy
the requirements of R.C. 2505.02. Therefore, they contend, their voluntary dismissal
of all claims rendered the interlocutory summary judgment a nullity.
{¶14} An order is final and appealable only if it meets the requirements of
both R.C. 2505.02 and, if applicable, Civ.R. 54(B). Chef Italiano Corp. v. Kent State
Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus; State ex rel. Scruggs v.
Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5. Civ.R. 54(B) applies
where more than one claim for relief is presented or multiple parties are involved,
and where the court has rendered a final judgment as to fewer than all claims or
parties. Chef Italiano at 88. Under Civ.R. 54(B), an entry of judgment involving
fewer than all claims or parties is not a final, appealable order unless, in addition to
other legal requirements, the court expressly determines that “there is no just reason
for delay.” Civ.R. 54(B); Scruggs at ¶ 6.
{¶15} The trial court’s March 2016 entry of summary judgment in favor of
the Mateikats did not dispose of the plaintiffs’ claims against Dungeons or the
plaintiffs’ health insurer, so Civ.R. 54(B) applies to the order. Because the court’s
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OHIO FIRST DISTRICT COURT OF APPEALS
order did not include the requisite Civ.R. 54(B) certification that there was “no just
reason for delay,” the order was not final and appealable, even assuming it met the
other legal requirements. See Kelly v. Swoish FT Blue Ash, LLC, 1st Dist. Hamilton
No. C-160461, 2017-Ohio-836, ¶ 7.
{¶16} The Mateikats argue, however, that the March 2016 entry of summary
judgment in their favor became final and appealable when the plaintiffs filed their
notice of voluntary dismissal pursuant to Civ.R. 41(A)(1)(a). They assert that the
voluntary dismissal rendered the interlocutory summary judgment a final appealable
order from which the plaintiffs failed to timely appeal.
{¶17} Civ.R. 41(A) states:
(1) By Plaintiff; By Stipulation. Subject to the provisions of Civ. R.
23(E), Civ. R. 23.1, and Civ. R. 66, a plaintiff, without order of court,
may dismiss all claims asserted by that plaintiff against a defendant by
doing either of the following:
(a) filing a notice of dismissal at any time before the
commencement of trial unless a counterclaim which cannot
remain pending for independent adjudication by the court has
been served by that defendant;
(b) filing a stipulation of dismissal signed by all parties who
have appeared in the action.
Unless otherwise stated in the notice of dismissal or stipulation,
the dismissal is without prejudice, except that a notice of dismissal
operates as an adjudication upon the merits of any claim that the
plaintiff has once dismissed in any court.
{¶18} In Denham v. New Carlisle, 86 Ohio St.3d 594, 597, 716 N.E.2d 184
(1999), the Supreme Court of Ohio held that a Civ.R. 41(A) voluntary dismissal
“nullifies the action only with respect to those parties dismissed from the suit.”
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OHIO FIRST DISTRICT COURT OF APPEALS
Therefore, the court held, a Civ.R. 41(A) dismissal of fewer than all of the defendants
in a case caused an interlocutory summary judgment order in favor of the remaining
defendants to become final and appealable. After Denham, Ohio courts have held
that where a plaintiff in a multi-defendant case voluntarily dismisses all defendants,
including those for whom the trial court has already granted summary judgment, the
prior interlocutory summary judgment order is rendered a nullity. See Fisher v.
Mallik, 2015-Ohio-1008, 30 N.E.3d 245, ¶ 18 (10th Dist.); Fairchilds v. Miami
Valley Hosp., Inc., 160 Ohio App.3d 363, 2005-Ohio-1712, 827 N.E.2d 381, ¶ 38 (2d
Dist.); Toledo Heart Surgeons v. The Toledo Hosp., 6th Dist. Lucas No. L-02-1059,
2002-Ohio-3577, ¶ 28; Blankenship v. Wadsworth-Rittman Area Hosp., 9th Dist.
Medina No. 02CA0062-M, 2003-Ohio-1288, ¶ 17; Hutchinson v. Beazer East, Inc.,
8th Dist. Cuyahoga Nos. 86635 and 87897, 2006-Ohio-6761, ¶ 23; Fox v. Kraws,
11th Dist. Lake No. 2009-L-157, 2009-Ohio-6860, ¶ 14-16; Bradley v. Dollar Gen.,
2012-Ohio-3700, 975 N.E.2d 515, ¶ 42 (5th Dist.).
{¶19} In this case, the plaintiffs’ notice of voluntary dismissal stated,
“PLEASE TAKE NOTICE that Plaintiff[s’] Complaint is hereby dismissed, without
prejudice as to re-filing pursuant to Civil Rule 41(A)(1)(a).” The notice contained no
suggestion that the plaintiffs meant for the dismissal to exclude those defendants for
whom the trial court had granted summary judgment. Consequently, we hold that
the plaintiffs’ Civ.R. 41(A)(1)(a) voluntary dismissal of all defendants rendered the
prior interlocutory summary judgment order in favor of the Mateikats a nullity. We
therefore address the subsequent grant of summary judgment in favor of the
Mateikats on the merits.
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OHIO FIRST DISTRICT COURT OF APPEALS
B. The Mateikats
{¶20} In their first assignment of error, the plaintiffs argue that the trial
court erred by granting the Mateikats’ motion to dismiss, which was converted to a
motion for summary judgment.
{¶21} The Mateikats moved to dismiss the complaint for failure to state a
claim upon which relief can be granted, pursuant to Civ.R. 12(B)(6). They argued
that the court was required to dismiss them from the refiled action because the court
had previously entered summary judgment in their favor in the first action. In the
previous action, the court ruled that Dungeons was an unincorporated nonprofit
association, and that the Mateikats, as members of the association, were immune
from personal liability under R.C. Chapter 1745. However, as discussed above, the
summary-judgment determination in the first action was an interlocutory order that
became a nullity upon the filing of the Civ.R. 41(A)(1)(a) notice of voluntary
dismissal. See Fisher, 2015-Ohio-1008, 30 N.E.3d 245, at ¶ 18.
{¶22} Therefore, when the Mateikats’ motion to dismiss was converted to a
motion for summary judgment, the Mateikats had the initial burden of
demonstrating that there were no genuine issues of material fact. Dresher v. Burt,
75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). To meet that burden, the
Mateikats could not merely make a conclusory assertion that the plaintiffs had no
evidence. See id. Rather, the Mateikats were required to support their assertion that
they were members of an unincorporated nonprofit association with some type of
evidence provided for in Civ.R. 56(C).
{¶23} When the Mateikats filed their motion to dismiss, they also filed a
motion to transfer the pleadings, discovery, deposition transcripts and videos that
had been filed in the plaintiffs’ earlier action to the refiled action. This was
appropriate because an action refiled under the saving statute is a new action and
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OHIO FIRST DISTRICT COURT OF APPEALS
does not incorporate the documents filed in the dismissed action. See Caffie v.
Daugherty Med. Group, 1st Dist. Hamilton No. C-120568, 2013-Ohio-5891, ¶ 6.
Even if a refiled action is assigned to the same trial judge as the dismissed action, the
necessary documents from the dismissed action must be filed in the new action. Id.
at ¶ 6-8. In this case, the trial court granted the motion to transfer the record from
the dismissed action to the current action, but not until three weeks after it granted
summary judgment in favor of the Mateikats.
{¶24} The plaintiffs argue that, at the time that the trial court ruled in the
Mateikats’ favor, the Mateikats had put forth no evidence to establish that Dungeons
was an unincorporated nonprofit association under R.C. Chapter 1745. We agree.
The court’s entry noted that the parties had “submitted the matter upon the record
currently before this Court.” The record before the court included the plaintiffs’
complaint, which asserted that Dungeons was “an unincorporated association” and
Dungeons’ answer, which asserted that it was “an unincorporated nonprofit
association.” (Emphasis added.) The record did not include any of the evidence from
the prior case. Therefore, any finding by the court as to this issue was unsupported
by any evidence in the record.
{¶25} We review a trial court's grant of summary judgment de novo. Grafton
v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary
judgment is appropriately granted when there exist no genuine issues of material
fact, the party moving for summary judgment is entitled to judgment as a matter of
law, and the evidence, when viewed in favor of the nonmoving party, permits only
one reasonable conclusion that is adverse to that party. State ex rel. Howard v.
Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994). “[T]he evidence must be in
the record or the motion cannot succeed.” Dresher, 75 Ohio St.3d 280 at 293, 662
N.E.2d 264.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} The plaintiffs sued Mark Mateikat solely in his capacity as an alleged
member of Dungeons. If the trial court was correct in determining that Dungeons
was an unincorporated nonprofit association, then Mark Mateikat, if he were a
member, could not be held personally liable for any debt, obligation, or liability of
Dungeons association. See R.C. 1745.10 and 1745.56. The same is true for Matt
Mateikat to the extent that he was named in the complaint as a member of
Dungeons. However, the statute provides no such protection for Matt Mateikat
where he was alleged to be liable for his own actions, i.e., in the assault claim.
{¶27} R.C. 1745.01(M) defines “unincorporated nonprofit association” as
follows:
“Unincorporated nonprofit association” means an
unincorporated organization, consisting of two or more
members joined by mutual consent pursuant to an agreement,
written, oral, or inferred from conduct, for one or more
common, nonprofit purposes.
{¶28} Because there was no evidence before the court to establish whether
Dungeons was an unincorporated nonprofit association, it was error to grant
summary judgment on this basis. And an assault claim against Matt Mateikat in his
individual capacity remained. We sustain the first assignment of error.
C. Dungeons of Delhi
{¶29} In their second assignment of error, the plaintiffs argue that the trial
court erred by granting summary judgment in favor of Dungeons. Unlike the ruling
in favor of the Mateikats, the trial court had the entire transferred record before its
ruling.
{¶30} Dungeons’ summary-judgment motion asserted that the plaintiffs’
claims were barred by the doctrines of primary and implied assumption of the risk.
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OHIO FIRST DISTRICT COURT OF APPEALS
In its entry granting summary judgment, the trial court did not give its reasons for
the ruling, and we address both.
1. Primary Assumption of the Risk
{¶31} The doctrine of primary assumption of the risk applies when a plaintiff
knows of a risk and decides to proceed into the perilous situation despite that
danger. See Parker v. L.T., 1st Dist. Hamilton No. C-160642, 2017-Ohio-7674, ¶ 22.
The defense is a total bar to recovery in a negligence action. See Marchetti v. Kalish,
53 Ohio St.3d 95, 99-100, 559 N.E.2d 699 (1990). Whether to apply the affirmative
defense of assumption of the risk presents an issue of law for the court to determine.
Id.
{¶32} Courts generally apply this doctrine to bar claims for injuries resulting
from recreational or sporting activities because the providers of these activities
cannot eliminate their inherent risks. See Horvath v. Ish, 134 Ohio St.3d 48, 2012-
Ohio-5333, 979 N.E.2d 1246, ¶ 19. The general rule is that where individuals engage
in recreational or sports activities, they assume the ordinary risks of the activity and
cannot recover for an injury unless it can be shown that the other party’s actions
were either reckless or intentional. Marchetti at 100. However, “only those risks
directly associated with the activity in question are within the scope of primary
assumption of the risk.” Horvath at ¶ 19, citing Gallagher v. Cleveland Browns
Football Co., 74 Ohio St.3d 427, 432, 659 N.E.2d 1232 (1996). The risk must be one
that is so inherent in the sport or activity that it cannot be eliminated. Id.
{¶33} While we found no Ohio cases involving assumption of the risk and
“haunted” attractions,1 courts in other jurisdictions have found that the attraction
1 Milbert v. Wells Twp. Haunted House, Inc., 2016-Ohio-5643, 70 N.E.3d 1143 (7th Dist.), cited
by the plaintiffs, does not support their position that the doctrine of primary assumption of the
risk should not apply to bar recovery for persons injured in haunted house attractions. In
Milbert, the political subdivision that operated the attraction did not assert that the plaintiff
assumed the risk of injury where the failure of a loose bolt caused the “lid” of a coffin ride to open
prematurely and eject the plaintiff. The issue was rather governmental immunity and negligence.
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OHIO FIRST DISTRICT COURT OF APPEALS
operators have no duty to protect a patron from her own reaction to scares that
occurred within the confines of the attraction. For example, in Durmon v. Billings,
873 So.2d 872 (La.App.2004), a patron inside a “haunted” cornfield maze was
approached by a costumed character with a running chainsaw (from which the chain
was removed). The patron attempted to run away, but she fell and injured herself.
The court found that the owners of the maze owed no duty to the patron to warn or
protect her from her reaction to being frightened by a costumed character, “an
experience she expected to have and for which she paid an additional admission fee.”
(Emphasis sic.) Id. at 879.
{¶34} In Mays v. Gretna Athletic Boosters, Inc., 668 So.2d 1207
(La.App.1996), a patron inside a haunted house was injured when someone scared
her, causing her to run into a cinder block wall. The court found that the operator
had no duty to protect the patron from running in a dark room into a wall: “Patrons
in a Halloween haunted house are expected to be surprised, startled and scared by
the exhibits but the operator does not have a duty to guard against patrons reacting
in bizarre, frightened and unpredictable ways.” Id. at 1209.
{¶35} In Galan v. Covenant House New Orleans, 695 So.2d 1007
(La.App.1997), a patron was exiting from a haunted house and was in the last exhibit
in a walled alleyway when she was scared by a costumed character, and she ran and
was injured. The court found that the haunted house operator owed the patron no
duty to guard against her reactions at any point while in the attraction. Id. at 1009.
{¶36} And, in Griffin v. The Haunted Hotel, Inc., 242 Cal.App.4th 490, 194
Cal.Rptr.3d 830 (2015), the court found that the plaintiff had voluntarily paid money
to experience, and assumed the risk of, being chased within the physical confines of
the attraction by a chainsaw carrying maniac character. Id. at 509.
{¶37} In this case, Dungeons argues that no question of fact remained on the
issue of whether Davis was in the confines of the haunted house attraction when her
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OHIO FIRST DISTRICT COURT OF APPEALS
injury occurred. Dungeons attached to its summary-judgment motion an affidavit by
Mark Mateikat that averred that Davis was “ ‘in’ the haunted house event when she
ran and fell.” Mark Mateikat also averred that the haunted house “event” began as
patrons walked through a graveyard scene located on the side of the haunted house
building. In an earlier deposition, however, Mark Mateikat testified that Dungeons
was “much different than other haunts” in that the area outside of the haunted house
was not part of the scare experience, and that the scariness did not begin until the
patron entered into the building itself. A moving party’s inconsistent affidavit may
not be used to obtain summary judgment. See Byrd v. Smith, 110 Ohio St.3d 24,
2006-Ohio-3455, 850 N.E.2d 47, ¶ 26.
{¶38} In addition, Davis testified that she had not yet entered the haunted
house attraction when she was chased by the costumed worker. Therefore, questions
of fact remain as to whether Davis had entered the physical confines of the attraction
and whether she could be expected to foresee or accept the attendant risk of injury
from being chased by a costumed haunted house worker. The trial court erred by
entering summary judgment in favor of Dungeons on the basis of primary
assumption of the risk.
{¶39} In addition, by entering summary judgment in favor of Dungeons on
the negligence claims, the trial court necessarily concluded as a matter of law that
neither Matt Mateikat nor any other Dungeons employee engaged in reckless
conduct by chasing Davis. The plaintiffs assert, and we agree, that a question of fact
remains as to whether the employee’s conduct rose to the level of recklessness.
2. Secondary, or Implied, Assumption of the Risk
{¶40} Secondary, or implied, assumption of the risk is defined as the
“plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to
plaintiff’s safety.” Peterson v. Martyn, 10th Dist. Franklin No. 17AP-39, 2018-Ohio-
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2905, ¶ 36. The defense of implied assumption of the risk has been merged with the
defense of contributory negligence. See Jester v. Utilimap Corp., 2018-Ohio-4755,
116 N.E.3d 185, ¶ 15 (1st Dist.); Anderson v. Ceccardi, 6 Ohio St.3d 110, 112, 451
N.E.2d 780 (1983).
{¶41} Implied assumption of the risk invokes factual questions that are
generally to be resolved by a jury and not by summary judgment. Peterson at ¶ 37.
In this case, because questions of fact remain as to whether Davis reasonably chose
to proceed in the face of a known risk, the trial court erred by entering summary
judgment in favor of Dungeons on the basis of implied assumption of the risk. We
sustain the second assignment of error.
D. Conclusion
{¶42} Having sustained both assignments of error, we reverse the trial
court’s judgments and remand the cause for further proceedings.
Judgments reversed and cause remanded.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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