Thomas v. Strba , 2013 Ohio 3869 ( 2013 )

[Cite as Thomas v. Strba, 2013-Ohio-3869.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
JAMES THOMAS, SR., et al. C.A. No. 12CA0080-M
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RONALD STRBA COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellee CASE No. 11 CIV 0433
DECISION AND JOURNAL ENTRY
Dated: September 9, 2013
WHITMORE, Judge.
{¶1} Plaintiff-Appellants, James Thomas, Sr. and Kira Thomas (collectively “the
Thomases”), appeal from the judgment of the Medina County Court of Common Pleas, granting
summary judgment in favor of Defendant-Appellee, Ronald Strba. This Court reverses.
I
{¶2} James Thomas and Ronald Strba were long-time friends who regularly hunted
together. On November 28, 2010, Thomas and his daughter met Strba on Strba’s property to
help him construct tree stands in anticipation of the opening day of hunting season. The two men
started with a tree stand that was already in place on the property and was in need of remodeling.
The pre-existing tree stand consisted of a crude platform atop a series of 2X4 boards that served
as rungs to climb up to the platform. The boards were nailed to two adjacent trees, such that the
left side of each board was nailed to the tree on the left and the right side of each board was
nailed to the tree on the right. The boards were spaced in approximately two to three foot
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intervals. There is no dispute that, at some point, Strba began nailing additional boards to the
trees. Specifically, he added one board in the gap between each pre-existing board to make for
an easier climb. After adding several boards, Strba tired and Thomas climbed up the tree stand
to continue the work. Thomas held onto one of the pre-existing boards as he began to nail in a
new board. Thomas was seriously injured when the pre-existing board pulled away from the tree
on the left and he fell to the ground.
{¶3} The Thomases filed a complaint against Strba in which they asserted negligence
and loss of consortium. Subsequently, Strba moved for summary judgment under the theory that
the Thomases’ claims were barred by the primary assumption of the risk doctrine. The trial court
determined that the primary assumption of the risk doctrine would bar the Thomases’ claims
unless they pointed to evidence that Strba had engaged in intentional or reckless behavior.
Because the Thomases’ complaint only alleged negligence, the court gave them the opportunity
to file an amended complaint. The Thomases then filed an amended complaint, in which they
alleged that their injuries were due to Strba’s negligent and/or reckless behavior. After
additional discovery took place, Strba moved for summary judgment on the amended complaint.
The court granted Strba’s motion due to the application of the primary assumption of the risk
doctrine and the lack of any evidence that the Thomases were injured due to any intentional or
reckless behavior on the part of Strba.
{¶4} The Thomases now appeal from the trial court’s judgment and raise five
assignments of error for our review. For ease of analysis, we combine several of the assignments
of error.
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II
Assignment of Error Number One
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
FINDING THAT THE DOCTRINE OF PRIMARY ASSUMPTION OF THE
RISK FOR RECREATIONAL ACTIVITIES APPLIES EVEN WHEN
PLAINTIFF HAS NOT YET BEGUN PARTICIPATING IN THE
RECREATIONAL ACTIVITY.
Assignment of Error Number Two
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
FINDING THAT THE MERE BUILDING OF A STRUCTURE CONSTITUTES
A RECREATIONAL ACTIVITY EVEN WHERE THE RECREATIONAL
ACTIVITY HAS NOT YET STARTED BUT THE STRUCTURE ITSELF IS
INTENDED FOR THE LATER USE IN A RECREATIONAL ACTIVITY.
Assignment of Error Number Three
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
FINDING THAT THE DOCTRINE OF PRIMARY ASSUMPTION OF THE
RISK FOR RECREATIONAL ACTIVITIES APPLIES EVEN DURING THE
CONSTRUCTION PHASE OF A STRUCTURE INTENDED FOR LATER USE
IN A RECREATIONAL ACTIVITY.
{¶5} In their first three assignments of error, the Thomases argue that the trial court
erred by granting Strba’s motion for summary judgment because (1) the primary assumption of
the risk doctrine does not apply to the act of building a tree stand for future use, and (2) there are
genuine issues of material fact regarding Strba’s negligence.
{¶6} Initially, we note that the trial court here incorrectly premised its judgment upon
its own factual findings. By way of example, Thomas testified in his deposition that he had not
definitively decided to hunt with Strba on Strba’s property. Thomas explained that he had made
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arrangements to hunt down south in Guernsey County instead.1 Nevertheless, the trial court
found that Thomas would benefit from helping Strba build tree stands on his property because
Thomas planned to hunt there. By way of further example, the trial court found that the pre-
existing tree stand on Strba’s property “had been constructed by Mr. Strba and his son.” The
identity of the person(s) responsible for building the tree stand, however, was a matter of
contention in the court below. There was testimony that (1) Strba’s two sons had built the stand,
(2) the stand was already in place on the property when Strba bought it, and (3) a friend of
Strba’s built the stand several years before this incident.2
{¶7} In ruling on a motion for summary judgment, a trial court must not resolve issues
of fact because issues of fact are properly reserved for trial. See Tucker v. Kanzios, 9th Dist.
Lorain No. 08CA009429, 2009-Ohio-2788, ¶ 16. Instead, the role of the trial court is to
determine whether genuine issues of material fact exist for trial. The trial court here improperly
resolved issues of fact in its summary judgment ruling. “Nevertheless, ‘[i]nasmuch as [our]
review of an order granting summary judgment is de novo, * * * [we] will proceed to determine
whether, despite the trial court’s incorrect analysis, [Strba] [was] entitled to summary judgment.”
Schaffer v. First Merit Bank, N.A., 186 Ohio App.3d 173, 2009-Ohio-6146, ¶ 15 (9th Dist.),
quoting Tucker at ¶ 16. Accord Weisfeld v. PASCO, Inc., 9th Dist. Summit No. 26416, 2013-
Ohio-1528, ¶ 9.
1
Also evident from the trial court’s judgment entry is its mistaken belief that this incident
occurred on Strba’s property in Guernsey County. The record reflects that this incident occurred
at Strba’s home in Medina County. Although Strba and Thomas jointly owned land and a
hunting cabin in Guernsey County, they were not there on the day in question.
2
Notably, there was no testimony that Strba and his son built the stand.
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{¶8} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is
proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for the motion and
pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher
v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Specifically, the moving party must support the
motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. Once
this burden is satisfied, the non-moving party bears the burden of offering specific facts to show
a genuine issue for trial. Id. at 293. The non-moving party may not rest upon the mere
allegations and denials in the pleadings but instead must point to or submit some evidentiary
material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle, 75 Ohio
App.3d 732, 735 (12th Dist.1991).
{¶9} “[T]o establish a cause of action for negligence, the plaintiff must show (1) the
existence of a duty, (2) a breach of duty, and (3) an injury proximately resulted therefrom.”
Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 8. “[P]rimary assumption
of risk, when applicable, prevents a plaintiff from establishing the duty element of a negligence
case.” Stewart v. Urig, 176 Ohio App.3d 658, 2008-Ohio-3215, ¶ 25 (9th Dist.), quoting
Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 433 (1996). “Underlying this
judicially created doctrine is the notion that certain risks are so inherent in some activities that
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they cannot be eliminated.” Otterbacher v. Brandywine Ski Center, Inc., 9th Dist. Summit No.
14269, 1990 WL 72327, *4 (May 23, 1990). Consequently, no duty to protect against them
arises. Id. Primary assumption of the risk “is a defense of extraordinary strength” because it
defeats a plaintiff’s ability to allege even a prima facie case of negligence. Gallagher at 431. As
such, the doctrine generally has been limited to cases where a plaintiff was injured while
engaged in a recreational activity or an inherently dangerous activity. See, e.g., Bastian v.
McGannon, 9th Dist. Lorain No. 07CA009213, 2008-Ohio-1449, ¶ 11; Stewart at ¶ 25-28. This
appeal concerns the trial court’s conclusion that Thomas was engaged in a recreational activity at
the time he was injured.
{¶10} “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[.]” (Internal quotations omitted.)
Marchetti v. Kalish, 53 Ohio St.3d 95 (1990), syllabus. The first question in such a case is
whether the injured plaintiff was, in fact, either a participant in or a spectator of a recreational
activity at the time of the injury. Bastian at ¶ 12. See also Gentry v. Craycraft, 101 Ohio St.3d
141, 2004-Ohio-379, ¶ 7-14. If an individual sustains an injury after the recreational activity at
issue has ended, the primary assumption of the risk doctrine does not apply. Bastian at ¶ 16
(summary judgment reversed due to material dispute of fact that children’s BB gun game was
still ongoing at time of plaintiff’s injury). See also Booth v. Walls, 3d Dist. Henry No. 7-12-23,
2013-Ohio-3190, ¶ 49-52 (doctrine held to apply when recreational activity of target shooting
still ongoing); Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009,
¶ 4-22 (6th Dist.) (doctrine inapplicable when plaintiff injured by runaway horse after
participating in an earlier horse race). By that same logic, the doctrine cannot be said to apply if
7
an individual is injured before the recreational activity at issue has commenced. See Bastian at ¶
16.
{¶11} There is no dispute that James Thomas was injured on November 28, 2010, one
day before the opening day of hunting season (November 29, 2010). In his deposition, Thomas
testified that he and Strba had been friends for over twenty years and had hunted together every
year for the past fifteen years. During those fifteen years, the two men hunted together on
property they had jointly purchased in Guernsey County. In 2010, however, Strba decided not to
hunt on the Guernsey County property. Thomas testified that Strba planned to hunt on his own
property instead and invited Thomas to hunt with him. Thomas further testified that he was
considering hunting with Strba, but had already made plans to hunt with another friend of theirs
in Guernsey County. Nevertheless, when Strba asked Thomas to help him put up tree stands on
his property, Thomas agreed. Thomas took his daughter along when he went to Strba’s property
to build the stands. At the time of Thomas’ deposition, his daughter was thirteen years old.
{¶12} Strba testified that he decided to hunt on his own property in 2010 and invited
Thomas to join him. Strba further testified that it was his impression that Thomas would be
hunting with him the following day. Even so, Strba agreed that he and Thomas were not hunting
on the day of Thomas’ injury because hunting season had not yet commenced. Strba described
Thomas and himself on that day as “two friends [working] on a project.”
{¶13} The trial court determined that, at the time of Thomas’ injury, both Thomas and
Strba “were engaged in the recreational activity of building a hunting stand to use while hunting
on the property.” The court adhered to its earlier decision on Strba’s first motion for summary
judgment in which the court wrote:
Absent the reason why Mr. Thomas was helping Mr. Strba build the hunting
stand, this Court would agree that a person who came onto the land of another to
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help him build or repair a structure on that land would be a business invitee [and
the primary assumption of the risk doctrine would not apply]. In this case,
however, the reason why Mr. Thomas was helping Mr. Strba with the hunting
stand was not solely for Mr. Strba’s benefit. It was so that both Mr. Thomas and
Mr. Strba could hunt on Mr. Strba’s property in Guernsey County.
Consequently, the trial court concluded that the Thomases’ claims were barred by the primary
assumption of the risk doctrine.
{¶14} As previously explained, Strba’s property was not located in Guernsey County.
Although Strba owned property with Thomas in Guernsey County, the incident in question
occurred on Strba’s personal property. Moreover, while the tree stands Thomas agreed to help
Strba build would be used for hunting, there was conflicting testimony about Thomas’ own
hunting plans. It was Strba’s impression that Thomas planned to hunt with him on opening day,
but Thomas testified that he had made plans to hunt in Guernsey County. The record does not
support the trial court’s definitive conclusion that Thomas planned to hunt on Strba’s property
the following day. Even so, Thomas’ plans for the following day are not dispositive of the
analysis here. The pertinent question is whether Thomas was engaged in a recreational activity
at the time of his injury.
{¶15} Under the facts of this case, it is clear to this Court that Thomas was not engaged
in a recreational activity at the time of his injury. Certainly, hunting qualifies as a recreational
activity. See, e.g., Hoover v. Shipley, 70 Ohio App.3d 256 (5th Dist.1991). Yet, Thomas was
not hunting when he fell from the tree stand. Compare Bruntz v. Cotton Tail Hunt Club, 291
Ga.App. 200 (2008) (primary assumption of the risk barred negligence action against hunting
club when experienced hunter fell from the tree stand he was climbing for the purpose of hunting
from it). Thomas was simply helping his friend prepare for the start of hunting season, which
did not even commence until the following day.
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{¶16} Any number of preparations might be necessary before one can engage in a
recreational activity. For instance, a hunter’s preparations undoubtedly would include buying a
hunting license, readying his shotgun or bow, and selecting weather-appropriate attire. Those
preparations might occur over any number of hours, days, or weeks before any actual hunting
commenced. It would be an absurd result if the primary assumption of the risk doctrine barred
the recovery of a hunter who slipped and fell in the store where he went to purchase his license
or who was injured in a car accident while driving to his hunting destination. The doctrine
would not bar those injuries because the recreational activity (i.e., hunting) had yet to begin
when the injuries occurred. Moreover, those injuries would not be of the type that a hunter
would ordinarily assume as inherent risks of the sport of hunting. See Marchetti, 53 Ohio St.3d
at syllabus (“Where individuals engage in recreational or sports activities, they assume the
ordinary risks of the activity * * *.”). See also Gallagher, 74 Ohio St.3d at 432 (“[O]nly those
risks directly associated with the activity in question are within the scope of primary assumption
of risk * * *.”).
{¶17} There is no dispute that Thomas was injured while helping construct a tree stand
in anticipation of hunting season. By law, no hunting could occur until the following day and
there was no evidence that Thomas intended to hunt on the day he was injured. Moreover, there
was no evidence that Thomas and Strba were engaged in tree stand building simply for the sake
of it. Compare Gentry, 101 Ohio St.3d 141, 2004-Ohio-379, at ¶ 7-14 (children building a chair
were “engaged in typical backyard play” such that their chair building constituted a recreational
activity). The building of the tree stand was a means to an end. Were this Court to hold that
Thomas was engaged in a recreational activity at the time of his injury, the definition of what
constitutes a recreational activity would be greatly expanded.
10
{¶18} The beginning and ending point of a recreational activity may oftentimes prove
difficult to discern and might vary depending on the facts and circumstances of each given case.
Given the facts and circumstances of this particular case, we must conclude that Thomas was not
engaged in a recreational activity at the time he was injured. Because Thomas was not engaged
in a recreational activity at the time of his injury, the trial court erred by concluding that the
Thomases’ claims were barred by the primary assumption of the risk doctrine. Moreover,
because Strba moved for summary judgment solely on the basis that the Thomases’ claims were
barred by the doctrine, the trial court erred by granting Strba’s motion for summary judgment.
The Thomases’ first three assignments of error are sustained.
Assignment of Error Number Four
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
FINDING THAT THE IMPROPER CONSTRUCTION OF A TREE STAND IS
A DANGER THAT IS ORDINARY TO THE ACTIVITY OF HUNTING.
Assignment of Error Number Five
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
BECAUSE A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO
WHETHER STRBA ACTED RECKLESS (Sic.)
{¶19} In their fourth and fifth assignments of error, the Thomases argue that the trial
court erred by granting Strba’s motion for summary judgment because (1) Thomas’s injury was
not due to an inherent risk of building or climbing a tree stand, and (2) there are genuine issues
of material fact with regard to whether Strba acted recklessly. Both of the foregoing assignments
of error are premised upon this Court having concluded that Thomas was engaged in a
recreational activity at the time he was injured. Because we have concluded that Thomas was
not engaged in a recreational activity when he was injured, the assignments of error are moot.
Therefore, we decline to address them. See App.R. 12(A)(1)(c).
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III
{¶20} The Thomases’ first, second, and third assignments of error are sustained. Their
fourth and fifth assignments of error are moot and we decline to address them. The judgment of
the Medina County Court of Common Pleas is reversed, and the cause is remanded for further
proceedings consistent with the foregoing opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
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MOORE, P. J.
BELFANCE, J.
CONCUR.
APPEARANCES:
DAVID R. GRANT, Attorney at Law, for Appellants.
KIRK E. ROMAN, Attorney at Law, for Appellee.