APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 11 CIV 0433.
DAVID R. GRANT, Attorney at Law, for Appellants.
KIRK E. ROMAN, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
(¶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.
(¶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 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.
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 ...