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Booth v. Walls

Court of Appeals of Ohio, Third District

July 22, 2013

SCOTT BOOTH, ET AL., PLAINTIFFS-APPELLANTS,
v.
ERIN WALLS, ET AL., DEFENDANTS-APPELLEES.

Appeal from Henry County Common Pleas Court Trial Court No. 10CV0174

Kent D. Riesen and Dennis A. Lyle for Appellants

J. Mark Trimble and David C. Bruhl for Appellees

OPINION

ROGERS, J.

{¶1} Plaintiffs-Appellants, Scott ("Scott") and Julie ("Julie") Booth, and their minor daughter, Morgan Booth ("Morgan") (collectively "the Booths"), appeal the judgment of the Court of Common Pleas of Henry County, granting summary judgment in favor of Defendants-Appellees, Erin ("Erin") and Kathy ("Kathy") Walls, and their minor children, Chance ("Chance") and Cassidy ("Cassidy") Walls (collectively "the Walls"). On appeal, the Booths contend that the trial court committed the following errors: (1) granting summary judgment based on an affirmative defense that the Walls did not plead, (2) granting summary judgment in favor of the Walls on the basis that the claims against them were barred under the primary assumption of the risk doctrine; and, (3) finding that there was no genuine issue of material fact with respect to the claims of reckless conduct against Erin and Kathy. For the reasons that follow, we affirm the trial court's judgment.

{¶2} On August 23, 2010, the Booths filed a complaint ("Original Complaint") against the Walls seeking recovery for damages stemming from injuries Morgan suffered when she was struck by the throwing arm of a clay target throwing machine ("target machine"), which, was owned by the Walls and installed on their property at the time of the accident. The Booths' Original Complaint asserted five claims: (1) common law premises liability; (2) common law negligence; (3) negligent supervision; (4) "ultra hazardous conditions"; and (5) loss of consortium. (Docket No. 1, p. 5).

{¶3} On October 13, 2010, the Walls filed their answer ("Original Answer"), wherein they denied the allegations set forth in the Booths' complaint, and asserted three specific defenses: (1) the Booths were contributorily negligent; (2) the Booths failed to join necessary and indispensable parties to their action; and (3) the Booths failed to mitigate their damages. In addition to these specific defenses, the Walls also "reserve[d] the right to add to their answer and to rely on all affirmative defenses as may be hereafter disclosed by way of discovery." (Docket No. 11, p. 6).

{¶4} In addition to answering the Booths' Original Complaint, the Walls filed a counterclaim against Scott and Julie and a third-party complaint against their minor son, Nathan Booth ("Nathan"). In their counterclaim, the Walls asserted that Scott and Julie negligently supervised the activities of their children, and that Morgan's injuries were a direct and proximate result of their negligent supervision. As a result, the Walls sought "contribution and indemnification" from Scott and Julie in the event they are found liable. (Id. at p. 7). In their third-party complaint, the Walls asserted that Nathan negligently operated the target machine, and that Morgan's injuries were a direct and proximate result of Nathan's negligent operation of the target machine. As a result, the Walls sought "contribution and indemnification" from Nathan in the event they are found liable. ( Id. . at p. 8).

{¶5} On November 30, 2010, the Booths filed their answer to the Walls' counterclaim. On December 10, 2010, Nathan filed his answer to the Walls' third-party complaint.

{¶6} On November 30, 2011, the Booths moved for leave to file an amended complaint, which the trial court granted. The Booths filed their amended complaint ("Amended Complaint") on December 28, 2011. In it, the Booths reasserted all of their original claims, with the exception of "ultra hazardous conditions." The Booths also narrowed the scope of two of their original claims. First, the Booths limited their claim of premises liability to Erin and Kathy. Second, the Booths limited their claim of common law negligence to Chance and Cassidy. Finally, The Booths asserted two new claims against the Walls: (1) negligent entrustment; and, (2) recklessness.

{¶7} On January 12, 2012, the Walls filed their answer to the Amended Complaint ("Second Answer") in which they denied the allegations set forth in the Booths' Amended Complaint. The Walls' Second Answer also asserted five specific defenses. Three of the defenses were asserted in the Walls' Original Answer, to wit: contributory negligence, failure to join necessary and indispensable parties, and failure to mitigate damages. In addition to these defenses, the Walls asserted that the Booths' claims were barred because the "[Booths] were recreational users", and that the Booths' amended complaint "fails to bring lawful claims pursuant to Civil Rule 11 and R.C. 2323.51[.]" (Docket No 46, p. 15). Further, the Walls again "reserve[d] the right to add to their answer and to rely on all affirmative defenses as may be hereafter disclosed by way of discovery." (Id.). Finally, and in addition to answering the Booths' Amended Complaint, the Walls reasserted their counterclaim against Scott and Julie, as well as their third-party complaint against Nathan.

{¶8} On January 25, 2012, the Booths filed their answer to the Walls' counterclaim. On February 17, 2012, Nathan filed his answer to the Walls' third-party complaint.

{¶9} During discovery, everyone present at the Walls' residence on the day of the accident was deposed. The following relevant evidence was adduced during the depositions.

{¶10} In 2007, the Walls purchased a parcel of land located at M235 County Road 2, McClure, Ohio ("the McClure property"). The property is bordered by farmland and a road, and features a residence with an attached garage, several outbuildings, and a pond. Subsequent to purchasing the McClure property, but prior to Morgan's accident, Erin installed a metal pole on his property near the pond. Erin then affixed a clay target throwing machine onto the metal pole. As a result, the bottom of the target machine was elevated approximately three feet off the ground. According to Erin, he placed the target machine on the pole so that the clay targets would clear the pond on his property. To operate the target machine an individual must cock the throwing arm back till it locks in place, load a clay target in the throwing arm, and pull a string to release the throwing arm, which, consequently, swings forward and launches the clay target into the air.

{¶11} On August 24, 2008, Scott, Morgan, and Nathan traveled to the Walls' residence for a cookout.[1] Shortly after arriving, Kathy suggested that the children, including Chance and Cassidy, [2] trap shoot using the target machine installed on the Walls' property. All of the children had some experience shooting trap and were familiar with how the Walls' target machine operated. Despite the children's experience, Kathy testified that she instructed the children on how to safely operate the target machine.[3] In particular, Kathy recalled instructing the children to never walk away from the target machine when the throwing arm was cocked and never stand in front of the target machine.

{¶12} During the cookout, Scott, Morgan, Nathan, Chance, and Cassidy each took turns shooting trap. Scott shot for a short period of time. After he finished shooting, Scott retired to the Walls' garage where he and Erin watched NASCAR. All of the parents consumed beer prior to the accident. In particular, Erin testified that Scott had 10-12 beers before the accident, while Kathy testified that she had two. Kathy, however, maintained that none of the parents were intoxicated at the time the accident occurred. From their location in the garage, Scott and Erin could observe the children shooting. While Scott and Erin were watching NASCAR, Kathy was preparing the food. Although Kathy was busy preparing food for the cookout, she testified that she watched the children shoot for a majority of the activity.

{¶13} The children shot trap for approximately one hour. Accounts of who operated the target machine varied. According to Morgan and Nathan, neither of them cocked the throwing arm, loaded it, or pulled the string to release it. Instead, both testified that Chance and Cassidy exclusively operated the target machine. Chance and Cassidy acknowledged that they operated the target machine, but did not do so exclusively. Moreover, Chance and Cassidy testified that Nathan operated the target machine on several occasions. Nevertheless, both also agreed that Morgan never operated the target machine on the day of the accident. Kathy, on the other hand, testified that all of the children took turns operating the target machine.

{¶14} When the food was ready, the children ceased shooting. Before the children ate, they stored their guns in the garage and returned outside to gather unbroken clay targets and spent shells. Accounts of who participated in the cleanup varied. According to Morgan and Nathan, all of the children went into an adjoining field to gather unbroken clay targets and then returned to where they were shooting to gather spent shells. Conversely, Chance and Cassidy testified that Nathan did not accompany them and Morgan into the field. Though Cassidy did not recall where Nathan was while the rest of the children were in the field gathering unbroken clay targets, Chance testified that Nathan remained in the vicinity of the target machine.

{¶15} The accident occurred while the children were gathering spent shells around the target machine. Each child testified that they did not realize that the target machine's throwing arm was cocked while they were gathering spent shells. Similarly, each child, as well as their parents, testified that they did not know who last cocked the throwing arm before the accident. Immediately prior to the accident, Morgan, Chance, and Cassidy were standing in front of and to the side of the target machine gathering spent shells, while Nathan stood behind the target machine. As the children were gathering spent shells, Morgan and Kathy observed Nathan playing with the string used to trigger the throwing arm. Despite their observations, neither of them said anything to Nathan. Nathan's actions subsequently caused the throwing arm to release. The throwing arm narrowly missed Chance and struck Morgan, who was standing in front of the target machine gathering spent shells, in the face. At the time of the accident all of the parents were in the garage, and none of them observed the accident. Due to the severity of her injury, Morgan was taken to the hospital and has since undergone several surgeries.

{¶16} On January 30, 2012, the Walls filed a motion for summary judgment. In it, the Walls expressly argued that the Booths could not recover on their claims of negligence because they (the Walls) are immune from liability under R.C. 1533.181, the recreational user immunity statute. The Walls also indirectly argued that recovery was barred under the primary assumption of the risk doctrine. The Walls further argued that there were no genuine issues of material fact concerning the Booths' claims of recklessness, and that, as a matter of law, none of their actions were reckless.

{¶17} Attached to the Walls' motion for summary judgment was a picture of the target machine that injured Morgan, as well as affidavits of Cassidy and Chance Walls. Cassidy's and Chance's affidavits contained the following averments: (1) they, Morgan, and Nathan were each shooting clay pigeons on the day Morgan was injured; (2) after running out of clay pigeons, they and Morgan left the area where the target machine was located and proceeded into the field to collect unbroken clay pigeons; (3) Nathan remained near the target machine when they and Morgan went into the field; (4) the target machine's throwing arm was not cocked when they went into the field; (5) after collecting clay pigeons in the field, they proceeded to pick-up empty shell casings near the target machine; (6) Morgan was injured while picking up shell casings; and, (7) neither of them cocked the throwing arm.

{¶18} On February 23, 2012, the Booths filed a memorandum in opposition to the Walls' motion for summary judgment. In it, the Booths first addressed the scope of the Walls' arguments in support of their motion for summary judgment. Specifically, the Booths noted that the Walls appeared to argue that the claims of negligence were barred under the primary assumption of the risk doctrine. The Booths argued that the Walls could not assert that defense since it was not pleaded, and "reserve[d] the right to later respond in the event [the Walls] later assert[ed] [the] defense." (Docket No. 68, p. 3). Thereafter, the Booths argued that the immunity provision under R.C. 1533.181 does not apply, and that there are genuine issues of material fact concerning their claims of recklessness.

{¶19} On March 12, 2012, the Walls filed a reply to the Booths' memorandum in opposition. In relevant part, the Walls expressly argued that the primary assumption of the risk doctrine bars the Booths' claims of negligence.

{¶20} On March 23, 2012, the Booths filed a sur-reply. In relevant part, the Booths claimed that the "[Walls] did not raise an assumption of risk argument in their Motion for Summary Judgment." (Docket No. 76, p. 9). As a result, the Booths' asserted that "the court should dismiss any defense relating to assumption of risk[.]" ( Id..) Notwithstanding this assertion, the Booths proceeded to address the application of the primary assumption of the risk doctrine. In doing so, they argued that the defense does not bar their claims of negligence because Morgan was injured after the recreational activity had ceased, ...


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