Brumage v. Green , 2014 Ohio 2552 ( 2014 )

[Cite as Brumage v. Green, 2014-Ohio-2552.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
RANDALL BRUMAGE :
: Appellate Case No. 2014-CA-7
Plaintiff-Appellant :
: Trial Court Case No. 2012-CV-350
v. :
:
BRYAN R. GREEN : (Civil Appeal from
: (Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 13th day of June, 2014.
...........
KENNETH J. IGNOZZI, Atty. Reg. #0055431, Dyer, Garofalo, Mann & Schultz, 131 North
Ludlow Street, Suite 1400, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
CHRISTOPHER W. CARRIGG, Atty. Reg. #0023947, and JENNIFER M. BRILL, Atty. Reg.
#0078038, Freund, Freeze & Arnold, One Dayton Centre, 1 South Main Street, Suite 1800,
Dayton, Ohio 45402
Attorneys for Defendant-Appellee
.............
FAIN, J.
{¶ 1} Plaintiff-appellant Randall Brumage appeals from a summary judgment rendered
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in favor of defendant-appellee Bryan Greene. Brumage contends that the trial court erred in
finding that the primary-assumption-of-risk doctrine applied to injuries he sustained while riding
an all-terrain vehicle on a public roadway.
{¶ 2} We conclude that the trial court did not err in rendering summary judgment.
Accordingly, the judgment of the trial court is Affirmed.
I. Brumage Is Injured When he Flips off the ATV he Was Driving
{¶ 3} In September 2011, Randall Brumage went to Bryan Greene’s property on
Flatfood Road in Cable. Shortly after Brumage arrived, John Overman, a mutual friend, brought
up the idea of riding all-terrain vehicles owned by Greene. Although Brumage had never been
on an ATV before, he decided to give it a try.
{¶ 4} Greene showed Brumage how to switch gears, go in reverse, and use the brakes.
The left-hand brake of the ATV on which Brumage was riding was not working well, so Greene
instructed Brumage to use the right-hand brake or the foot brake if he needed to stop. Brumage
took the ATV on a practice run for about fifteen minutes through an open field on Greene’s
property.
{¶ 5} Brumage, Greene, and Overman then rode their ATVs for about five or ten
minutes on trails through the woods on Greene’s property. The three men subsequently rode the
ATVs onto Flatfood Road, a public roadway. The three drove their ATVs in a single-file line
about a mile down Flatfood Road and then turned back and returned to Greene’s property.
During this drive, Brumage kept his ATV in second gear. It was starting to get dark by the time
the three men returned to Greene’s property.
[Cite as Brumage v. Green, 2014-Ohio-2552.]
{¶ 6} After returning to Greene’s property, all three men began drinking a bottle of
beer. Overman then suggested that they go for another ride. Brumage initially said he did not
want to go on another ride, but eventually agreed to do so. Greene instructed Brumage to keep
the ATV in third or fourth gear during this trip. At the time the three of them began their second
ride together, it was dark. The three drivers activated their headlights on the ATVs, and once
again began driving on Flatfood Road, this time taking a different route than earlier. Although
Greene once again led the line of ATVs during this trip, his ATV did not have any working
taillights or brake lights.
{¶ 7} The three drivers traveled about one mile down Flatfood Road before turning
back. Brumage traveled faster on this trip than the previous trip. Consequently, he passed
Overman and was second in line on the trip back to Greene’s property. As the ATVs
approached Greene’s driveway, they had to descend a hill with three staggered downward slopes.
Once Greene reached his driveway, he stopped in the middle of Flatfood Road and positioned
his ATV so that his headlights were pointing toward his driveway. When Brumage saw Greene
positioned in the road, he started to brake, but did not think he would be able to stop in time.
Brumage then tried to go to the right of Greene to avoid him and enter the driveway. According
to Brumage, Greene then suddenly moved his ATV into Brumage’s path, causing Brumage to
have to sharply maneuver the ATV further to the right to avoid Greene. As a result, Brumage
lost control of the ATV, flipped it, and crashed into a fence. Brumage sustained serious injuries.
II. Course of the Proceedings
{¶ 8} Brumage brought this action against Greene in negligence, requesting damages
for the injuries that occurred in September 2011 when Brumage flipped his ATV. After some
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discovery, Greene moved for summary judgment, based on the theory that Brumage was engaged
in a recreational activity at the time of the ATV accident.
{¶ 9} The trial court granted Greene’s motion for summary judgment. Brumage
appeals.
III. Brumage’s Injury Resulted from a Risk Inherent in the
Recreational Activity of Riding ATVs
{¶ 10} Brumage’s sole assignment of error states:
THE TRIAL COURT ERRED IN GRANTING
DEFENDANT-APPELLEE’S MOTION FOR SUMMARY JUDGMENT.
{¶ 11} When reviewing a summary judgment, an appellate court conducts a de novo
review. Village of Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
“De Novo review means that this court uses the same standard that the trial court should have
used, and we examine the evidence to determine whether as a matter of law no genuine issues
exist for trial.” Brewer v. Cleveland City Schools Bd. Of Edn., 122 Ohio App.3d 378, 383, 701
N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 413
N.E.2d 1187 (1980). Therefore, the trial court’s decision is not granted any deference by the
reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio App.3d 704, 711, 622
N.E.2d 1153 (4th Dist.1993).
{¶ 12} The trial court rendered summary judgment based on the application of the
“primary-assumption-of-risk doctrine,” which is applied in actions involving injuries sustained
during a recreational activity. In Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, 979
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N.E.2d 1246, ¶ 18-19, the Supreme Court of Ohio explained the import of finding that the
primary-assumption-of-risk doctrine applies:
This court has held that “[w]here 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 [2 Restatement of the Law 2d, Torts, Section
500, and 1 Restatement of the Law 2d, Torts, Section 8A (1965) ].” Marchetti v.
Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus; see also Thompson v.
McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705. “Obviously, without our stating so,
in Marchetti and Thompson we applied ‘primary’ assumption-of-risk principles in
limiting the defendant's liability.” Gentry v. Craycraft, 101 Ohio St.3d 141,
2004-Ohio-379, 802 N.E.2d 1116, ¶ 11. Primary assumption of the risk means
that a defendant owes no duty whatsoever to the plaintiff. Gallagher v. Cleveland
Browns Football Co., 74 Ohio St.3d 427, 431-432, 659 N.E.2d 1232 (1996).
Clearly, skiing is a sport or recreational activity. However, “only those
risks directly associated with the activity in question are within the scope of
primary assumption of risk.” Id. at 432, 659 N.E.2d 1232, citing Cincinnati
Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925). “To be covered
under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is
so inherent to the sport or activity that it cannot be eliminated.” * * * Where the
risk at issue is not inherent, then a negligence standard applies. See Gallagher,
74 Ohio St.3d at 432, 659 N.E.2d 1232; see also Pope v. Willey, 12th Dist. No.
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CA2004-10-077, 2005-Ohio-4744, 2005 WL 2179317 (colliding with a truck on a
road is not an inherent risk of riding an all-terrain vehicle); Goffe v. Mowell, 2d
Dist. No. 98-CA-49, 1999 WL 55693 (Feb. 5, 1999) (faulty racetrack design is not
an inherent risk of go-cart racing).
{¶ 13} In order to apply the primary-assumption-of-the-risk doctrine, a court must find
that the injury resulted from a recreational activity. “Cases have held that driving and riding on
an ATV is a recreational activity.” Curtis v. Schmid, 5th Dist. Delaware No. 07 CAE 11 0065,
2008-Ohio-5239, ¶ 55, citing Pope v. Willey, 12th Dist. Clermont No. CA2004-10-077,
2005-Ohio-4744 and Taylor v. Mathys, 3d Dist. Union No. 14-04-32, 2005-Ohio-150. See also
West v. Devendra, 2012-Ohio-6092, 985 N.E.2d 558, ¶ 16 (7th Dist.). We agree with our sister
courts, and conclude that Brumage and Greene were engaged in a recreational activity when they
were riding the ATVs.
{¶ 14} “The types of risks associated with the activity are those that are foreseeable and
customary risks of the sport or recreational activity.” Schmid at ¶ 54, citing Thompson v.
McNeil, 53 Ohio St.3d 102, 104-106, 559 N.E.2d 705 (1990). “Losing control and flipping an
ATV is a foreseeable and customary risk associated with the activity of driving or riding on an
ATV.” (Citation omitted.) Schmid at ¶ 56.
{¶ 15} Brumage contends that “[t]his is not a case where Brumage was injured from the
simple loss of control of an ATV he was riding.” Brief, p. 14. Brumage contends that the risks
he faced in this case were greater than are customary in the recreational activity of riding ATVs
because: (1) the ATVs were solely operated on the public roadway; (2) the participants took a
different route on their second ATV ride on the roadway; (3) Greene positioned himself sideways
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on the road in front of his driveway at the bottom of a hill; (4) Greene encouraged Brumage to
drive the ATV in third or fourth gear rather than in second gear; and (5) Greene moved the ATV
forward suddenly, which cut off Brumage’s lane of travel and caused Brumage to flip off the
ATV. Id.{¶ 16} Brumage cites a number of facts that arguably contributed to the ultimate injuries
in this case resulting from the ATV crash. As noted above, however, flipping off an ATV and
getting injured is a risk that is inherent in the recreational activity of riding an ATV. Indeed,
“[e]xamples of what causes a driver to lose control of the ATV could be because of speed, terrain
or failure to follow safety procedures.” Devendra at ¶ 26. But “[w]hat causes the driver to lose
control is better addressed when determining whether the driver acted intentionally, recklessly or
negligently.” Id.{¶ 17} Brumage cites Pope v. Willey, 12th Dist. Clermont No. CA2004-10-077,
2005-Ohio-4744, for the proposition that being injured while riding an ATV on a public roadway
is not a risk inherent in the recreational activity of riding an ATV. In Pope, the twelve-year-old
plaintiff was hit by a pick-up truck while riding as a passenger on an ATV. The pick-up truck
struck the ATV when the driver of the ATV attempted to cross the public roadway. The court
held that “the cause of the injury, collision with a pick-up truck on a public road, is not part of the
inherent risk that can not be eliminated in the recreational activity of ATV riding. Instead, the
risk is the same as any other motor vehicle driving on a public road and the same standard should
apply.” Id. at ¶ 13.
{¶ 18} The Pope court then clarified that its holding did not hinge on the fact that the
injury occurred on a public roadway:
[Cite as Brumage v. Green, 2014-Ohio-2552.]
The fact that the boys in this case were on a public road when the injury
occurred is not the primary issue. Instead, it is the nature of the danger that led to
the injury. The cause of the injury in this case was not an inherent and
foreseeable danger to the recreational activity of ATV riding. Had the accident
occurred on the road, but as a result of the boys losing control of the ATV and the
vehicle flipping, the recreational activity doctrine would apply since the cause of
the injury was an inherent danger in ATV riding. See Paxton v. Ruff, Inc. (Jan.
12, 1998), Butler App. No. CA97-04-089. Instead, the injury was a result of a
danger that every user on a public road encounters and the same standard,
negligence, applies.
Pope at ¶ 15.
{¶ 19} Unlike the facts in Pope, the injuries involved in the case before us were caused
by the flipping of an ATV, which is an inherent risk of participating in the recreational activity of
riding an ATV. Consequently, we conclude that the trial court did not err in finding that the
doctrine of primary assumption of risk barred Brumage’s claim of negligence against Greene.
Furthermore, although the facts alleged by Brumage arguably could establish that Greene’s
actions were reckless, recklessness was not pled in the complaint. Therefore, summary
judgment was appropriate. Devendra at ¶ 33.
{¶ 20} Brumage’s sole assignment of error is overruled.
IV. Conclusion
{¶ 21} Brumage’s sole assignment of error having been overruled, the judgment of the
trial court is Affirmed.
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DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Kenneth Ignozzi
Christopher W. Carrigg
Jennifer M. Brill
Hon. Nick A. Selvaggio