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Martin v. Morgan County Agricultural Society

Court of Appeals of Ohio, Fifth District

July 12, 2013

EDWARD and AMY MARTIN Plaintiffs-Appellants
v.
MORGAN COUNTY AGRICULTURAL SOCIETY Defendant-Appellee

Civil Appeal from the Court of Common Pleas, Case No. 11 CV 0130

For Plaintiffs-Appellants: MARK E. DEFOSSEZ, CURTIS M. FIFNER, THE DONAHEY LAW FIRM.

For Defendant-Appellee: KATHERINE A. CLEMONS, MARKESBERY & RICHARDSON.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. Sheila G. Farmer, J., Hon. John W. Wise, J.

OPINION

Wise, J.

{¶1} Appellants Edward and Amy Martin appeal the decision of the Court of Common Pleas, Morgan County, which granted summary judgment in favor of Appellee Morgan County Agricultural Society in an action alleging employer intentional tort, negligence, and other claims. The relevant facts leading to this appeal are as follows.

{¶2} In February 2009, Appellant Edward began working at appellee's golf course, as part of the county's public works relief program. Among his job duties was cutting grass with a Toro Reelmaster 216 riding lawn mower.

{¶3} On July 24, 2009, Edward was allegedly injured when he reached with his hand to clean off the Toro's rollers while the blades on the mower's reels were still spinning. According to Edward's deposition testimony, he had hit the switch to shut the blades off, but he subsequently theorized that the switch may have only turned off halfway and then popped back into an "on" position. See Edward Martin Depo. at 72-73.

{¶4} On July 21, 2011, appellants filed a complaint in the Morgan County Court of Common Pleas alleging, inter alia, employer intentional tort and negligence. Appellants named as defendants the Morgan County PWRE (a relief program under the Morgan County DJFS), the Morgan County Fairgrounds Golf Course, the Toro Company, one John Doe Corporation, and five John Does.

{¶5} Appellants subsequently substituted, as defendants, Morgan County for Morgan County PWRE, and Appellee Morgan County Agricultural Society for the Morgan County Fairgrounds Golf Course. However, Morgan County was dismissed in June 2011, and the Toro Company was dismissed in November 2011. Furthermore, it does not appear that service was ever perfected on the John Doe corporation or the individual John Does.

{¶6} On July 30, 2012, Appellee Morgan County Agricultural Society, the sole remaining party-defendant, filed a motion for summary judgment.

{¶7} On August 22, 2012, the trial court rendered a judgment entry granting summary judgment in favor of appellee.

{¶8} On September 4, 2012, appellants filed a notice of appeal. They herein raise the following three Assignments of Error:

{¶9} "I. THE TRIAL COURT ERRED BY PERMITTING APPELLEE TO ASSERT AN AFFIRMATIVE DEFENSE IT HAD ...


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