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McBride v. Butler

Court of Appeals of Ohio, Third District, Crawford

April 2, 2018

KATELYN D. MCBRIDE, PLAINTIFF-APPELLANT,
v.
FRANK E. BUTLER, ET AL., DEFENDANTS-APPELLEES.

          Appeal from Crawford County Common Pleas Court Trial Court No. 15 CV 234

          Kevin J. Zeiher for Appellant

          Victoria D. Barto for Appellee, State Auto Insurance Company of Ohio

          OPINION

          SHAW, J.

         {¶1} Plaintiff-Appellant, Katelyn McBride appeals the November 3, 2017 judgment of the Crawford County Court of Common Pleas granting the motion for summary judgment filed by State Auto Insurance Company of Ohio ("State Auto"). On appeal, Katelyn argues that the trial court erred in granting the motion for summary judgment because a genuine issue of material fact had yet to be litigated.

         Facts and Procedural History

         {¶2} On August 12, 2013, McBride was seated behind Frank Butler who was operating a 2004 Artic Cat all-terrain vehicle ("ATV") travelling between 15-20 miles per hour down Water Street in Oceola located in Crawford County, Ohio. Butler and Katelyn were returning from Butler's mother's home to Butler's home when Butler lost control of the ATV. Butler's wife, Christie, was operating a second ATV travelling in the opposite direction and observed both Butler and Katelyn being ejected from the vehicle in separate directions as Butler lost control. According to Christie, Katelyn rolled several times with the ATV before it came to a complete stop. Christie found an old screwdriver on the road, which she surmised caused Butler to lose control of the ATV when he passed over it. Katelyn was transported by life flight to a Toledo Hospital with a broken collar bone, a fractured skull, brain swelling, and several abrasions.

          {¶3} On August 7, 2015, Katelyn filed a complaint for damages and a declaratory judgment asserting personal injury and products liability related causes of actions against Frank Butler, Jason Berecek, State Auto, and Artic Cat, Inc. [1] State Auto filed an answer and a crossclaim against Katelyn, and the other defendants, requesting an order declaring the rights of all parties with respect to the counts and claims, and a judgment against the defendants for any contractual reimbursement and/or tort subrogation with respect to the amounts it may be required to pay under any Uninsured Motorist/Underinsured Motorist coverage or medical payment coverage.

         {¶4} On January 5, 2016, the case was transferred to inactive status due to Butler filing a petition for Chapter 7 Bankruptcy. An Order of Discharge was issued by the United States Bankruptcy Court on February 5, 2016, and the case was returned to active status on the trial court's docket.

         {¶5} On August 5, 2016, Katelyn voluntarily dismissed all claims asserted against Artic Cat, Inc. and subsequently filed an amended complaint.

         {¶6} On June 1, 2017, State Auto filed a motion for summary judgment contending that Katelyn assumed the inherent risks associated with the recreational activity of riding an ATV-specifically that the operator could lose control and the ATV could roller over-which obviated any duty of care owed to Katelyn and barred her claims from recovery. Katelyn filed a response maintaining that the primary assumption of risk doctrine did not apply in this instance because a genuine issue of fact remained as to whether Katelyn was truly engaged in a recreational activity to invoke the doctrine when she was merely using the ATV as transportation from one home to another on a public road.

         {¶7} On November 3, 2017, the trial court issued a judgment entry granting State Auto's motion for summary judgment finding no genuine issue of material fact and concluding that State Auto was entitled to judgment as a matter of law.

         {¶8} Katelyn filed this appeal, asserting the following assignment error.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FOUND THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT YET TO BE LITIGATED AND THAT DEFENDANTS ARE ENTITLED TO ...

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