Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wagner v. Kretz

Court of Appeals of Ohio, Third District, Allen

November 13, 2017

JOHN E. WAGNER, ET AL., PLAINTIFFS-APPELLANTS,
v.
DANIEL KRETZ, ET AL., DEFENDANTS-APPELLEES.

         Appeal from Allen County Common Pleas Court Trial Court No. CV2016 0278.

          Gordon D. Evans for Appellants, John & Linda Wagner.

          J. Alan Smith for Appellee, City of Lima.

          Christopher W. Carrigg for Appellee, Daniel Kretz.

          OPINION

          ZIMMERMAN, J.

         {¶1} Plaintiff-Appellants John and Linda Wagner (collectively referred to as "Appellants") appeal the Allen County Common Pleas Court's Judgment Entry granting summary judgment in favor of Defendant-Appellees Daniel Kretz ("Kretz") and the City of Lima (collectively referred to as "Appellees") and dismissing Appellants' Complaint. On appeal, Appellants assert that the trial court erred by determining a grant of summary judgment was appropriate under the Doctrine of Primary Assumption of Risk. For the reasons that follow, we affirm the ruling of the Allen County Common Pleas Court.

         Factual Background

         {¶2} On May 26, 2014, Appellant John Wagner ("John") was riding on a parade float representing the Allen County Patriots, as part of a local Memorial Day Parade. The parade float represented a military funeral. The float was constructed upon an aluminum flatbed trailer, and featured a fake casket draped in the American flag; a wrought iron tripod with a flower arrangement; and six wooden folding chairs upon which "mourners" could sit. John Wagner was responsible for the float's design and provided the wrought iron tripod, the flower arrangement, and the six (6) wooden folding chairs used by parade participants to sit upon while riding on the float. The casket and wrought iron tripod were strapped down to the trailer bed, while the wooden folding chairs were not secured to the trailer bed.

         {¶3} The float was towed by a pick-up truck operated by Kretz, who, when after the parade concluded, commenced to return the float to the starting location of the parade on North Elizabeth Street in Lima. Appellants, and other members of the Allen County Patriots, remained on the float for the return trip. While driving on North Elizabeth Street, Kretz's truck hit a four-foot long by six-foot wide defect in the road, resulting in those on the float falling off their chairs and/or the float. John's fall (from the float) resulted in serious injuries, wherein he incurred approximately $200, 000 in medical bills.

         Procedural Background

         {¶4} On May 17, 2016, Appellants filed a complaint for injuries against Kretz, Tom Ahl Dealership, the City of Lima, Dominion East Ohio Gas Company, Jim's Excavating, and John Does 1-10, in the Allen County Court of Common Pleas. Specifically, Appellants alleged that Kretz negligently operated the truck pulling the parade float; that Kretz was acting within the course and scope of his employment with Tom Ahl Dealership, making them liable under the doctrine of Agency by Estoppel; that the City of Lima, Ohio created the defect/pot hole on the road in question and/or failed to properly maintain the road which made the road defective and/or dangerous for use; that Dominion East Ohio Gas Company created the pot hole/defect on the road in question and failed to repair it; that Jim's Excavating created the pot hole/defect in question, and failed to repair it; and finally, that Linda Wagner, because of the accident on the parade float, had lost the comfort, care, services, and consortium of her husband, John. (Doc. No. 1). All defendants filed an answer to Appellants' Complaint. One of the named defendants, Dominion East Ohio Gas Company, filed a cross-claim against the City of Lima. In turn, the City of Lima filed a cross-claim against Dominion East Ohio Gas Company, Kretz, and Jim's Excavating. (Doc. Nos. 8, 9, 10, 11, 13, 16, 17, 18, 19, 20).

         {¶5} On January 23, 2017, Dominion East Ohio Gas Company voluntarily dismissed its cross-claim against the City of Lima. (Doc. No. 58). On January 30, 2017, the City of Lima voluntarily dismissed its cross-claim against Dominion East Ohio Gas Company. (Doc. No. 59). Further, and also on January 30, 2017, Appellants voluntarily dismissed Dominion East Ohio Gas Company and Jim's Excavating as defendants. (Doc. Nos. 60, 61). On February 1, 2017, Dominion East Ohio Gas Company voluntarily dismissed its cross-claim against Kretz. (Doc. No. 62).

         {¶6} On April 3, 2017, Tom Ahl Dealership and the City of Lima filed motions for summary judgment with briefs in support in the trial court. (Doc. Nos. 76-78). Kretz joined Tom Ahl Dealership, in part, in its motion for summary judgment. (Doc. No. 79). On April 13, 2017, Appellants filed a memorandum contra to the City of Lima's Motion for summary judgment, to which the City of Lima replied to on April 25, 2017. (Doc. No. 81). On April 27, 2017, Appellants voluntarily dismissed Tom Ahl Dealership as a party defendant.

         {¶7} On May 19, 2017, the Allen County Common Pleas Court issued its decision pursuant to Civ.R. 56, granting summary judgment to the two remaining defendants, City of Lima and Kretz. (Doc. No. 94). Specifically, the trial court found that Appellants' claim was barred under the doctrine of primary assumption of the risk, finding that the Appellants participated in an inherently dangerous activity when riding on a parade float. (Id. at 7). From this entry Appellants timely appeal and present the following assignment of error for our review:

ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED BY DETERMINING A GRANT OF SUMMARY JUDGMENT WAS APPROPRIATE UNDER THE DOCTRINE OF PRIMARY ASSUMPTION OF RISK.

         Appellant's First ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.