Court of Appeals of Ohio, Fifth District, Muskingum
from the Court of Common Pleas, Case No. CC2015-0192
D. FRIES For Plaintiff-Appellant
A. FIOCCA, JR. For Defendants-Appellees
JUDGES: Hon. William B. Hoffman, P.J. Hon. Craig R. Baldwin,
J. Hon. Earle E. Wise, Jr., J.
1} Plaintiff-Appellant Devin Clark appeals the judgment of
the Muskingum County Court of Common Pleas granting summary
judgment in favor of Appellee Drew Barcus, et al.
AND PROCEDURAL HISTORY
2} On December 30, 2010 around 11:30 p.m., appellant Clark
arrived at his friend appellee Barcus' home to assist in
the installation of a Chevrolet 350 engine into Barcus'
1985 Chevrolet pickup truck. The engine belonged to Clark.
Barcus was to purchase the 350 Chevy engine from Clark after
the installation if he decided he liked the engine. Clark
also loaned Barcus a cherry picker, a device used to hoist an
engine block into the air to facilitate installation of the
engine into the engine compartment.
3} When Clark arrived at the Barcus home that night, Barcus
and his father, who also assisted in the installation, had
been working on the project for a few hours. They had already
installed the engine onto the cherry picker, and the motor
had been suspended in the air for approximately two hours
before Clark's arrival.
4} Approximately 30 minutes after Clark began to assist, as
they were installing the flywheel on the engine, one of the
eyebolts holding the engine suspended from the cherry picker
broke. The engine landed on Clark's right hand causing
5} Clark was seen at Bethesda Hospital where medical
personnel cleaned and casted his injury. Microscopic hand
surgery was recommended. Clark underwent hand surgery in
6} In December 2012, Clark filed a negligence action against
Barcus and his father alleging they had negligently and
carelessly installed the engine onto the cherry picker. In
October 2013, Barcus moved for summary judgment. The trial
court denied the motion in February 2014. Clark later
voluntarily moved to dismiss the case. The trial court
dismissed the matter without prejudice.
7} In May 2015, Clark refiled the case. In November 2016,
Barcus again moved for summary judgment arguing that Barcus
and Clark were engaged in a recreational activity.
Specifically, Barcus argued he and Clark were fellow
automobile restoration enthusiasts, and were engaged in that
activity at the time of the accident. Bracus thus argued that
Ohio's recreational activity doctrine - an application of
the doctrine of primary assumption of the risk - applied and
that Clark had assumed any risk associated with automobile
restoration. Alternatively, Barcus argued that Clark's
claim was barred because the accident was not one that anyone
could have foreseen. Barcus further argued that the
Gedra doctrine was applicable to bar Clark's
8} In January 2017, Clark filed a memorandum contra arguing
the men were not engaged in a recreational activity because
Barcus was to purchase the engine from Clark, and that
therefore, the two were not "playing" or engaged in
recreation. Barcus filed a responsive brief in February 2017.
9} On March 21, 2017, without explanation, the trial court
granted the motion for summary judgment.
10}Clark filed an appeal, and the matter is now before this
court for consideration. He presents two assignments of
11} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
FOR THE DEFENDANTS WHEN THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT APPLICATION OF THE RECREATIONAL ACTIVITY
12} "THE GEDRA DOCTRINE DOES NOT REQUIRE A PLAINTIFF TO
ELIMINATE POSSIBLE CAUSES OF AN ACCIDENT SUGGESTED ONLY BY
13} Both parties focus on the recreational activity doctrine,
i.e., primary assumption of the risk. Clark argues the trial
court erred in granting summary judgment in favor of Barcus,
et al because there was insufficient evidence before
the trial court to support application of the recreational
activity/primary assumption of the risk doctrine. We agree
that the trial court erred in granting summary judgment in
favor of Barcus.
14} Summary Judgment motions are to be resolved in light of
the dictates of Civ.R. 56. Said rule was reaffirmed by the
Supreme Court of Ohio in State ex rel. Zimmerman v.
Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as
to any material fact remains to be litigated, (2) the moving
party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to
but one conclusion, and viewing such evidence most strongly
in favor of the nonmoving party, that conclusion is adverse
to the party against whom the motion for summary judgment is
made. State ex. rel. Parsons v. Fleming (1994), 68
Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple
v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4
O.O.3d 466, 472, 364 N.E.2d 267, 274.
15} In Simmons v. Quarry Golf Club, 5th Dist. Nos.
2015CA00143, 2015CA00148, 2016-Ohio-525 ¶ 15 we noted:
A trial court should not enter a summary judgment if it
appears a material fact is genuinely disputed, nor if,
construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different
conclusions from the undisputed facts. Hounshell v. Am.
States Ins. Co. (1981), 67 Ohio St.2d 427, 424 N.E.2d
311. The court may not resolve any ambiguities in the
evidence presented. Inland Refuse Transfer Co. v.
Browning-Ferris Inds. of Ohio, Inc. (1984), 15 Ohio
St.3d 321, 474 N.E.2d 271. A fact is material if it affects
the outcome of the case under the applicable substantive law.
Russell v. Interim Personnel, Inc. (6th Dist.1999),
135 Ohio App.3d 301, 733 N.E.2d 1186.
16} As an appellate court reviewing summary judgment motions,
we must stand in the shoes of the trial court and review
summary judgments on the same standard and evidence as the
trial court. Smiddy v. The Wedding Party, Inc., 30
Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review
the matter de novo. Doe v. Shaffer, 90 Ohio St.3d
388, 738 N.E.2d 1243 (2009).
17} To establish negligence, a plaintiff must demonstrate 1)
the existence of a legal duty, 2) the defendant's breach
of that duty, 3) injury that is the proximate cause of the
defendant's breach. Menifee v. Ohio Welding Products,
Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
Assumption of the Risk
18} In Gallagher v. Cleveland Browns Football Co.,
74 Ohio St.3d 427, 431- 432, 659 N.E.2d 1232 (1996), Justice
Resnick set forth a clear distinction between primary
assumption of the risk and implied assumption of the risk:
Although the Anderson [v. Ceccardi, 6 Ohio
St.3d 110, 451 N.E.2d 780 (1983)] court merged implied
assumption of risk with contributory negligence, the court
found that two other types of assumption of risk did not
merge with contributory negligence-express (e.g.,
contractual) assumption of risk and primary ("no
duty") assumption of risk. Anderson's
statement that primary assumption of risk does not merge with
contributory negligence is of critical importance to our
discussion here because when a plaintiff is found to have
made a primary assumption of risk in a particular situation,
that plaintiff is totally barred from recovery, as a matter
of law, just as he or she would have been before
Anderson. The net result of Anderson's
differentiation between primary and implied assumption of
risk is that now it is of utmost importance which type of
assumption of the risk is put forth as a defense. In fact,
after Anderson, these two defenses are so distinct
that it is misleading that each continues to bear the title
"assumption of risk, " as if the two were
interrelated *933 concepts. Due to the confusion occasioned
by continuing usage of "assumption of risk, " many
commentators have advocated abolishment of the term.
"[T]he concept of assuming the risk is purely
duplicative of other more widely understood concepts, such as
scope of duty or contributory negligence. * * * It adds
nothing to modern law except confusion." 4 Harper, James
& Gray, Law of Torts (2 Ed.1986) 259, Section 21.8.
However, despite this confusion, Ohio continues to recognize
the term and its accompanying variations.
Primary assumption of risk is a defense of extraordinary
strength. Based on the distinction drawn in Anderson
between implied assumption of risk and primary assumption of
risk, and the doctrine that a plaintiff who primarily assumes
the risk of a particular action is barred from recovery as a
matter of law, it becomes readily apparent that primary
assumption of risk differs conceptually from the affirmative
defenses that are typically interposed in a negligence case.
An affirmative defense in a negligence case typically is the
equivalent of asserting that even assuming that the plaintiff
has made a prima facie case of negligence, the plaintiff
cannot recover. A primary assumption of risk defense is
different because a defendant who asserts this defense
asserts that no duty whatsoever is owed to the plaintiff. See
Prosser & Keeton, Law of Torts (5 Ed.1984) 496- 497,
Section 68 (Primary assumption of risk "is really a
principle of no duty, or no negligence, and so denies the
existence of any ...