JOHN E. WAGNER, ET AL., PLAINTIFFS-APPELLANTS,
DANIEL KRETZ, ET AL., DEFENDANTS-APPELLEES.
from Allen County Common Pleas Court Trial Court No. CV2016
D. Evans for Appellants, John & Linda Wagner.
Alan Smith for Appellee, City of Lima.
Christopher W. Carrigg for Appellee, Daniel Kretz.
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.
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.
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.
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).
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).
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
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.