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Clark v. Barcus

Court of Appeals of Ohio, Fifth District, Muskingum

January 10, 2018

DEVIN CLARK Plaintiff-Appellant
DREW BARCUS. ET AL Defendants-Appellees

         Appeal from the Court of Common Pleas, Case No. CC2015-0192

          MILES D. FRIES For Plaintiff-Appellant

          JOHN A. FIOCCA, JR. For Defendants-Appellees

          JUDGES: Hon. William B. Hoffman, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.


          Wise, Earle, 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.


         {¶ 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 serious injury.

         {¶ 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 January 2012.

         {¶ 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 claim.

         {¶ 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 error:






         {¶ 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.

         Standard of Review

         {¶ 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).

         Primary 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 ...

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