Miles v. Cummins

[Cite as Miles v. Cummins, 2021-Ohio-1621.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY

BRENT MILES, ET AL.,
CASE NO. 8-20-44
PLAINTIFFS-APPELLANTS,

v.

JAYME CUMMINS, OPINION

DEFENDANT-APPELLEE.

Appeal from Logan County Common Pleas Court
Trial Court No. CV 20 006 0118

Judgment Affirmed

Date of Decision: May 10, 2021

APPEARANCES:

Stacey R. Pavlatos for Appellants

Belinda S. Barnes and Robert J. Kidd for Appellee
Case No. 8-20-44

WILLAMOWSKI, P.J.

{¶1} Plaintiff-appellants Brent A. Miles (“Brent”) and Chris Miles

(collectively “the appellants”) appeal the judgment of the Logan County Court of

Common Pleas, alleging that the trial court erred in granting summary judgment for

defendant-appellee Jayme Cummins (“Jayme”). For the reasons set forth below, the

judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} On October 2, 2016, Jayme and her husband hosted a party at their

house in Logan County, Ohio. Doc. 1, 13. Brent Deposition, 7. Brent was one of

the individuals who was invited to this party. Doc. 12. While at this event, Jayme

offered to give Brent a ride on her all-terrain vehicle (“ATV”). Jayme Deposition,

10. Brent then got onto the ATV behind Jayme. Doc. 1, 12. Brent Deposition, 56.

Jayme told Brent to hold onto her as she drove. Brent Deposition, 107.

{¶3} Shortly after the ride began, Brent asked her to stop the ATV so that he

could get a better grip on the ATV. Brent Deposition, 96, 108. In response, Jayme

stopped the ATV, and Brent grabbed onto the ATV’s fenders instead of holding

onto Jayme. Brent Deposition, 96, 108. He later testified that he “trusted [his] grip

there.” Brent Deposition, 109. After Brent adjusted his grip, Jayme continued

driving the ATV across her lawn. Brent Deposition, 109.

{¶4} As Jayme was driving the ATV, she drove over a “divot” in the ground.

Brent Deposition, 53. Brent described what happened next as follows:

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[W]e were going across the yard and hit some kind of little divot
or something and then launched me off the seat. I left—I left—I
was still hanging onto the fenders, but I left the seat, and my feet
left the machine. And then when I landed back on the machine, I
landed onto the seat, and then my foot landed in front of the foot
peg or floor and then got trapped under the floor board and the
ground.

Brent Deposition, 53. He then told Jayme to stop the ATV because he believed that

he had been injured. Brent Deposition, 66.

{¶5} Jayme then stopped the ATV to check on Brent before she drove him

back to the house. Jayme Deposition, 40. Brent Deposition, 66. Brent testified that

the entire ride lasted five minutes “at the most * * *.” Brent Deposition, 54. Jayme

then took Brent to the emergency room where he was treated for a broken ankle and

compression fractures in his lower back. Jayme Deposition, 33, 40. Brent

Deposition, 31, 72.

{¶6} Subsequently, the appellants filed a complaint that alleged Jayme’s

negligent operation of the ATV caused Brent’s injuries. Doc. 12. Jayme then filed

a motion for summary judgment. Doc. 12. Subsequently, the appellants filed a

notice of voluntary dismissal without prejudice pursuant to Civ.R. 41(A) on June 4,

2019. Doc. 12. On June 3, 2020, the appellants filed another complaint that initiated

the action that is currently before this Court. Doc. 1. This complaint alleged that

Jayme’s reckless operation of the ATV caused Brent’s injuries. Doc. 1.

{¶7} During the course of this litigation, both Brent and Jayme sat for

depositions. At Brent’s deposition, the following exchange occurred:

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[Attorney:] So when she [Jayme] was operating the four-wheeler,
how would you describe how she was driving?

[Brent:] Like you would a four-wheeler. She handled it well.

[Attorney:] Had she spun out of control?

[Brent:] No. She wasn’t out of control.

[Attorney:] Was she driving it too fast for the conditions of the
yard?

[Brent:] Didn’t seem to be.

[Attorney:] What were the conditions of the yard? Was it wet?

[Brent:] No, no. Not that I remember.

***

[Attorney:] Okay. So what—just to be blunt about it—what, if
anything, did my client do wrong when you were riding together?

[Brent:] Just ran over something that bucked me in the air.

[Attorney:] Did you notice anything in front of you that you were
about to hit?

[Brent:] No, I didn’t see anything.

[Attorney:] Was there any warning that you were about to be
bucked into the air, as you say?

[Brent:] No.

(Emphasis added.) Brent Deposition, 56-57.

{¶8} Brent estimated that the ATV was going around thirty-five to forty

miles per hour. Brent Deposition, 96, 111. He stated that he believed the speed the

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ATV was moving played a factor in his injury. Brent Deposition, 115, 118. He

then gave the following testimony:

[Attorney:] Did you feel that [Jayme] was operating the vehicle
safely for the terrain?

[Brent:] Not for the speed of where we were at.

[Attorney:] Okay. So it’s your testimony that you were going too
fast for the terrain?

[Brent:] On that area. The flat—there’s two parts to that yard.
And down at the bottom it was smooth, but when we came up to
the top, we hit the rough. It was too fast for that.

[Attorney:] Did you ever tell her that she was going too fast when
you changed different areas?

[Brent:] I didn’t feel it until then.

***

[Attorney:] Did you ever ask her to slow down when you got into
the different terrain?

[Brent:] I told her to stop once it happened.

[Attorney:] Okay. So you told her to stop after the injury had
occurred?

[Brent:] Yes.

[Attorney:] But before that when you went off the straight-away
and onto the different terrain did you ever ask her to slow down?

[Brent:] No.

[Attorney:] Did you ever tell her that you were scared?

[Brent:] No.

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[Attorney:] Were you scared?

[Brent:] No.

[Attorney:] Did you ever feel you were in danger?

[Brent:] When you’re going—not to that danger, no. I was
enjoying the ride.

Brent Deposition, 119-120. However, he also stated that he did not believe that he

had time to ask her to slow down. Brent Deposition, 121.

{¶9} Brent confirmed that he believed, at the time he got onto the ATV, that

Jayme “would exercise care to keep [him] safe” as she operated the vehicle. Brent

Deposition, 121. He further testified as follows:

[Attorney:] Do you think it’s possible to ever eliminate the risk of
an injury when you’re riding on an ATV?

[Brent:] No.

Brent Deposition, 64. Brent also stated that the ATV appeared to have been

“designed for two” riders and that “[t]he seat looked big enough for two”

passengers. Brent Deposition, 52, 62. However, at this deposition, defense counsel

presented Brent with a warning label from the ATV that stated “[n]ever carry

passengers.” Brent Deposition, 61. Ex. A. Brent testified that he did not see this

warning label before he got onto the ATV. Brent Deposition, 64.

{¶10} At her deposition, Jayme testified that she had taken “safe riding

courses through the State of Ohio.” Jayme Deposition, 35. She also stated that she

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did not lose control of the ATV and did not operate the vehicle recklessly. Jayme

Deposition, 29, 36, 38. Jayme testified that, before she reached the area where Brent

was injured, she “slowed down and hit the brakes * * *” because she “was going to

be making a turn so you slow down anyway when you’re turning, and there was an

unevenness so I didn’t want to hit it really fast and hard.” Jayme Deposition, 31.

During the following exchange, Jayme testified about the speed she was going:

[Attorney:] How fast were you going when the incident occurred?

[Jayme:] There’s no way to tell for sure, but I’m going to say 10,
15 mile an hour tops.

[Attorney:] How fast do you have to go to get into second gear?

[Jayme:] About 10, 15 mile an hour.

[Attorney:] And how long had you been riding before you entered
into second gear?

[Jayme:] Maybe a 150 yards—200, 200 yards.

Jayme Deposition, 38-39. She further stated that, during this ride, Brent did not ask

her to stop before his injury; did not tell her that she was driving too fast; and did

not tell her that he was afraid. Jayme Deposition, 39.

{¶11} On June 23, 2020, Jayme filed a motion for summary judgment. Doc.

12. On July 16, 2020, the appellants filed a memorandum in opposition to Jayme’s

motion for summary judgment. Doc. 18. On August 5, 2020, the trial court granted

Jayme’s motion for summary judgment. Doc. 28.

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Assignment of Error

{¶12} The appellants filed their notice of appeal on August 18, 2020. Doc.

33. On appeal, the appellants raise the following assignment of error:

The trial court erred in failing to recognize that the
plaintiff/appellant bearing on the manner in which
defendant/appellee operated her ATV was probative of her
reckless misconduct and demonstrated that a genuine issue of
material fact existed, thus precluding the granting of summary
judgment in favor of the defendant/appellee.

Appellants argue that they produced evidence that established a genuine issue of

material fact as to whether Jayme acted recklessly in operating the ATV.

Legal Standard

{¶13} Appellate courts consider a summary judgment order under a de novo

standard of review. James B. Nutter & Co. v. Estate of Neifer, 3d Dist. Hancock

No. 5-16-20, 2016-Ohio-7641, ¶ 5. Under the Ohio Rules of Civil Procedure,

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

Civ.R. 56(C). “The party moving for summary judgment has the initial burden ‘to

inform the trial court of the basis for the motion, identifying the portions of the

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record, including the pleadings and discovery, which demonstrate the absence of a

genuine issue of material fact.’” Middleton v. Holbrook, 3d Dist. Marion No. 9-15-

47, 2016-Ohio-3387, ¶ 8, quoting Reinbolt v. Gloor, 146 Ohio App.3d 661, 664,

767 N.E.2d 1197 (3d Dist. 2001).

{¶14} “The burden then shifts to the party opposing the summary judgment.”

Id. “In order to defeat summary judgment, the nonmoving party may not rely on

mere denials but ‘must set forth specific facts showing that there is a genuine issue

for trial.’” Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶

10, quoting Civ.R. 56(E). “[B]ecause summary judgment is a procedural device to

terminate litigation, it must be awarded with caution.” Williams v. ALPLA, Inc.,

2017-Ohio-4217, 92 N.E.3d 256 (3d Dist.), quoting Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992). “The court must thus construe

all evidence and resolve all doubts in favor of the non-moving party * * *.” Webster

v. Shaw, 2016-Ohio-1484, 63 N.E.3d 677, ¶ 8 (3d Dist.).

{¶15} Under the recreational activity doctrine, “individuals [who] engage in

recreational or sports activities * * * 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’ * * *.” Marchetti v. Kalish, 53 Ohio

St.3d 95, 559 N.E.2d 699 (1990), syllabus. In other words, “where injuries stem

from ‘conduct that is a foreseeable, customary’ part of the [recreational] activity,’

the defendant ‘cannot be held liable for negligence because no duty is owed to

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protect the victim from that conduct.’” Ochall v. McNamer, 2016-Ohio-8493, 79

N.E.3d 1215, ¶ 41 (10th Dist.), Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-

379, 802 N.E.2d 1116, ¶ 6, quoting 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. Thus, “[n]o liability attaches for

injuries caused by negligence that occurs during recreational activities.” Taylor v.

Mathys, 3d Dist. Union No. 14-04-32, 2005-Ohio-150, ¶ 10.

{¶16} “Recklessness is a high standard.” Whalen v. T.J. Automation, Inc.,

2019-Ohio-1279, 134 N.E.3d 869, ¶ 33 (3d Dist.), quoting Lovegrove v. Stapleton,

2015-Ohio-1669, 32 N.E.3d 1001, ¶ 34 (2d Dist.).

Reckless conduct is characterized by the conscious disregard of
or indifference to a known or obvious risk of harm to another that
is unreasonable under the circumstances and is substantially
greater than negligent conduct.

Anderson at paragraph four of the syllabus, adopting 2 Restatement of the Law 2d,

Torts, Section 500 (1965). See Marchetti at fn. 2. Further,

‘[t]he 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 risk, but this difference
of degree is so marked as to amount substantially to a difference
in kind.’ Taylor, 2005-Ohio-150, at ¶ 15, quoting 2 Restatement
of the Law 2d, Torts, Section 500, Comment g (1965). ‘The actor
must be conscious that his conduct will in all probability result in
injury.’ Kurz v. Great Parks of Hamilton Cty., 1st Dist. Hamilton,
2016-Ohio-2909, 65 N.E.3d 96, ¶ 24, quoting O’Toole v. Denihan,
118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, paragraph
three of the syllabus. ‘The consciousness that conduct will likely

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cause injury is what distinguishes recklessness from negligence.’
Id. at ¶ 25.

Whalen at ¶ 33. In the context of a sporting event or recreational activity,

‘[w]hat constitutes an unreasonable risk under the circumstances
* * * must be delineated with reference to the way the particular
game is played, i.e., the rules and customs that shape the
participants’ ideas of foreseeable conduct in the course of a game.’
Thompson, 53 Ohio St.3d at 105, 559 N.E.2d 705. * * * [Further,]
‘the nature of the sport involved, the rules and regulations which
govern the sport, the customs and practices which are generally
accepted and which have evolved with the development of the
sport, and the facts and circumstances of the particular case.’ Id.,
quoting Hanson v. Kynast (1987), 38 Ohio App.3d 58, 64, 526
N.E.2d 327.

Taylor, supra, at ¶ 16. “Although recklessness is generally a jury question, the

standard for showing recklessness is high, so summary judgment is appropriate

where the record is devoid of evidence showing such conduct.” Hopkins v. Porter,

3d Dist. Mercer No. 10-13-17, 2014-Ohio-757, ¶ 50.

Legal Analysis

{¶17} The appellants do not dispute that Brent was engaged in a recreational

activity at the time of his injury. Appellants’ Brief, 10. See Brumage v. Green, 2d

Dist. No. 2014-CA-7, 2014-Ohio-2552, ¶ 13 (holding that courts have found “that

driving and riding on an ATV is a recreational activity”). Accordingly, in their

complaint, the appellants alleged that Jayme operated the ATV “in a reckless

manner” and that this “reckless conduct * * * directly and proximately caused”

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Brent’s injuries. Doc. 1. However, in her motion for summary judgment, Jayme

argued that there was no evidence that she acted recklessly. Doc. 12.

{¶18} In his response to this motion for summary judgment, Brent included

affidavits from two witnesses who saw him riding on the ATV with Jayme. Doc.

18, Ex. A, B. Both of these witnesses believed that Jayme was driving faster than

ten to fifteen miles per hour, possibly approaching as much as forty miles per hour.1

Doc. 18, Ex. A, B. Brent asserts that these conflicting estimates of the ATV’s speed

around the time of his injury create a genuine issue of material fact for trial.

{¶19} But even if Jayme was driving the ATV faster than ten to fifteen miles

per hour, Brent has not demonstrated that his injuries were not “a result of a

foreseeable and customary part of the activity.” Pope v. Willey, 12th Dist. Clermont

No. CA2004-10-077, 2005-Ohio-4744, ¶ 10. See Taylor, supra, at ¶ 21. When

asked what Jayme “did * * * wrong,” Brent said that she “[j]ust ran over something

that bucked me in the air.” Brent Deposition, 56-57. Elsewhere Brent testified that

this “something” was a “little divot” in the yard. Brent Deposition, 53, 56-57.

{¶20} Brent’s testimony indicates that his injuries resulted from bouncing up

and down on the ATV seat as Jayme drove across an uneven surface on her lawn.

Brent Deposition, 53, 56-57. However, as the name “all-terrain vehicle” suggests,

ATVs are frequently driven across uneven and unpaved surfaces at a wide range of

1
The ATV Jayme was driving was not outfitted with a speedometer. Jayme Deposition, 46. The ATV can
reach a speed of seventy-five miles per hour on flat pavement. Jayme Deposition, 9.

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speeds. Brent agreed to ride on an ATV across Jayme’s lawn, which was a surface

that was clearly unpaved and very likely to be uneven in places. Under the facts of

this case, bouncing up and down on an ATV constitutes an “ordinary risk” of this

activity. Marchetti, supra, at the syllabus. See Taylor, supra, at ¶ 10.

{¶21} Further, Ohio courts have held that “[l]osing control and flipping an

ATV is a foreseeable and customary risk associated with the activity of driving or

riding on an ATV.” Curtis v. Schmid, 5th Dist. Delaware No. 07 CAE 11 0065,

2008-Ohio-5239, ¶ 57. See Brumage at ¶ 14; McBride v. Butler, 3d Dist. Crawford

No. 3-17-20, 2018-Ohio-1251, ¶ 17-18; West v. Davendra, 2012-Ohio-6092, 985

N.E.2d 558 (7th Dist.); McLoughlin v. Williams, 12th Dist. Clermont No. CA2015-

02-020, 2015-Ohio-3287, ¶ 17. However, in the case before this Court, Jayme was

not driving so fast that she lost control of or flipped the ATV when she traveled over

the divot in her lawn.

{¶22} Brent testified that Jayme “wasn’t out of control” and that she

“handled [the ATV] * * * well.” Brent Deposition, 56-57. Similarly, Jayme

testified that she “didn’t lose control” of the ATV. Jayme Deposition, 29. She

further testified that the ATV also did not crash, flip, or bottom out. Jayme

Deposition, 25, 33, 36. After Brent’s injury, Jayme was able to bring the ATV to a

stop and then drive Brent back to the house. Brent Deposition, 66. Jayme

Deposition, 40. Brent has not produced evidence that indicates his injuries resulted

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from conduct that was not a foreseeable or customary risk of the activity of riding

an ATV.

{¶23} The evidence in the record also does not indicate that Jayme acted

recklessly by “creat[ing] an unreasonable risk of physical harm.” Taylor, supra, at

¶ 17. Jayme testified that she had owned this ATV since 2005 and had taken “safe

riding courses through the State of Ohio.” Jayme Deposition, 8, 35. Schmid, supra,

at ¶ 58. She stated that she had driven this ATV over her lawn on multiple occasions

and with passengers. Jayme Deposition, 14-15. She further said that she did not

engage in risky maneuvers on the ATV with passengers and did not operate the

vehicle in a reckless manner. Jayme Deposition, 38, 42.

{¶24} When asked how Jayme operated the ATV, Brent replied, “Like you

would a four-wheeler.” Brent Deposition, 56. Again, Brent also testified that Jayme

“handled [the ATV] * * * well.” Brent Deposition, 56-57. He also stated that he

did not feel as though he was in danger during the ride. Brent Deposition, 120. In

its judgment entry, the trial court noted that Brent

did not produce any evidence that [Jayme] was attempting to
drive the ATV ‘no hands’ or was trying to drive the vehicle on
just two of its four wheels * * * or attempting to operate the ATV
blind-folded or attempting to drive the ATV through a physical
barrier such as a wall at a high rate of speed * * *.

Doc. 28. Under the circumstances of this case, driving an ATV faster than ten to

fifteen miles per hour across a lawn does not, by itself, establish that Jayme acted

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with a “consciousness that [her] conduct [was] likely [to] cause injury * * *” to

Brent. Whalen, supra, at ¶ 33, quoting Kurz, supra, at ¶ 25.

{¶25} Having construed the evidence in favor of the appellants, we conclude

that no genuine issue of material fact exists for trial. Brent has not produced

evidence that Jayme operated the ATV in a reckless manner that caused his injuries.

For this reason, the trial court did not err in granting Jayme’s motion for summary

judgment. As such, Brent’s sole assignment of error is overruled.

Conclusion

{¶26} Having found no error prejudicial to the appellants in the particulars

assigned and argued, the judgment of the Logan County Court of Common Pleas is

affirmed.

Judgment Affirmed

ZIMMERMAN and MILLER, J.J., concur.

/hls

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