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The Estate of Kwesi Sample v. Xenos Christian Fellowship, Inc.

Court of Appeals of Ohio, Tenth District

December 31, 2019

The Estate of Kwesi Sample, through its Administrator Lawrence Cornish, Plaintiff-Appellant,
Xenos Christian Fellowship, Inc., Defendant-Appellee.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CV-6763

         On brief:

          Cooper & Elliott, LLC, and Adam P. Richards, for appellant.

          Crabbe, Brown & James, LLP, and John C. Albert, for appellee.


          John C. Albert.


          KLATT, P.J.

         {¶ 1} Plaintiff-appellant, Lawrence Cornish, administrator of the estate of Kwesi Sample, appeals a judgment of the Franklin County Court of Common Pleas that granted summary judgment to defendant-appellee, Xenos Christian Fellowship, Inc. For the following reasons, we affirm that judgment in part and reverse it in part.

         {¶ 2} Xenos is a non-traditional, non-denominational church based in Columbus. Xenos consists of approximately 200 home churches, each including 20 to 50 adults who meet regularly in someone's home. In 2011, Sample joined a home church led in part by Joshua "Levi" LeVan.

         {¶ 3} Each year, college-aged Xenos congregants take a week-long trip to Holden Beach, a barrier island on the coast of North Carolina. In May 2013, Sample traveled with others from his home church to Holden Beach. Sample and nine other men from his home church rented a beach house together. Although members of Sample's home church generally gathered for morning devotionals and attended a church meeting midweek, they otherwise went their own ways and decided how they wanted to spend their time.

         {¶ 4} Prior to the trip, LeVan and another Xenos congregant, Christopher Cooksey, had decided that they wanted to go geocaching while at Holden Beach. Geocaching is an outdoor recreational activity in which participants use GPS coordinates and online clues to find hidden containers known as caches. A geocacher creates a cache by hiding a waterproof container containing a logbook and trade items, and then posting the coordinates, along with other details regarding the location, on a listing website. Geocachers then use the posted information to locate the cache and, if successful, record their accomplishment in the logbook, take a trade item, and leave an item in exchange.

         {¶ 5} Searching, Cooksey found a listing for a cache entitled "Treasure Island." The coordinates for the cache placed it on an uninhabited barrier island east of Holden Beach. The geocacher who created the cache, treasurehunter64, rated it four out of five stars in "difficulty" and five out of five stars in "terrain." (Ex. V. at 1, Pl.'s Memo in Opp. to Summ. Jgmt.) Additionally, treasurehunter64 commented, "Park at these co-ord[inate]s[:] N33.54.945 W078.13.930[.] [Y]ou will need a kayak or canoe to get to this cache. This cache is a waterproof box. This is a beautiful [i]sland that I found [k]ayaking this summer." Id. at 2.

         {¶ 6} LeVan and Cooksey disregarded the parking coordinates in the listing because the coordinates pinpointed a location on Oak Island, another nearby barrier island, and LeVan and Cooksey intended to approach "Treasure Island" from Holden Beach.[1] On May 13, 2013, LeVan and Cooksey went to the east end of Holden Beach to reconnoiter the area. They wanted to determine whether they could swim between Holden Beach and Treasure Island at low tide, or whether they needed a kayak or canoe. Based on what they saw, they decided that they could swim across an inlet to an exposed sandbar, and then they could walk the remaining distance to Treasure Island.

         {¶ 7} The next day, May 14, 2013, Sample overheard LeVan talking to others about going geocaching and he asked if he could come along. LeVan asked Sample if he could swim, and Sample indicated he could. LeVan then agreed that Sample could join him and Cooksey.

         {¶ 8} Sample was not the only person interested in going geocaching. When LeVan and Cooksey set out, five other people accompanied them: Sample, Reuben Chapman, Christina Lehane, Rebecca Lehane, and Renee Geiger. The group's plan was to swim from the eastern end of Holden Beach across an inlet to an exposed sandbar. The seven participants entered the water around 4:00 p.m., approximately one hour before low tide. The weather was clear, and the water was calm, with little wave action or current.

         {¶ 9} Initially, the water was shallow, but it soon became too deep to stand, requiring everyone to swim. Cooksey and Sample were swimming in the middle of the group. Less than halfway across the inlet, Cooksey decided to turn around. He was not a good swimmer, and he was worried that he would not have enough stamina to swim back to Holden Beach if he swam the entire distance to the sandbar. Sample swam a short distance past the point Cooksey turned around, and then he, too, turned around.

         {¶ 10} As they swam back, Sample and Cooksey passed Christina and Rebecca Lehane, who were still headed toward the sandbar. To Rebecca, both Sample and Cooksey looked tired. A short while later, Sample began to yell for help and wave his arms. Chapman, who was closest to Sample, swam toward Sample to help him. LeVan and Geiger, who had arrived at the sandbar, reentered the water and also swam toward Sample. Cooksey continued swimming to the Holden Beach shore and alerted beachgoers, who called 911. Before anyone could reach Sample, he went under water and did not resurface.[2]

         {¶ 11} On July 20, 2016, the administrator of Sample's estate ("the Estate") filed a wrongful death and survivorship action against Xenos asserting claims for negligence and negligent supervision and/or training. The Estate immediately moved the trial court to apply Ohio's modified comparative negligence statutory scheme, and not North Carolina's contributory negligence doctrine, to decide Xenos' liability for negligence. In response, Xenos argued that North Carolina law should determine its liability because the injury-causing conduct and Sample's death occurred in North Carolina. In a decision and entry dated March 13, 2017, the trial court concluded that it would apply North Carolina law to the entirety of the Estate's action.

         {¶ 12} Xenos then moved for summary judgment, arguing in relevant part that reasonable minds could only conclude that Sample was contributorily negligent. According to Xenos, summary judgment in its favor was warranted because Sample's contributory negligence completely barred the Estate's recovery. In response, the Estate asserted that genuine issues of material fact existed regarding whether Sample was contributorily negligent. Alternatively, the Estate contended that it provided evidence establishing Xenos' conduct was grossly negligent, willful, or wanton, and thus, it overcame the bar contributory negligence posed to its recovery.

         {¶ 13} In a decision and entry dated September 25, 2018, the trial court granted Xenos summary judgment. The trial court agreed with Xenos that Sample was contributorily negligent, stating:

[T]here is no question of fact that Mr. Sample, in the exercise of ordinary care, should have been aware of the dangers associated with swimming in an open body of water including but not limited to the risk of drowning. More specifically, Mr. Sample knew or should have known that swimming in ocean waters was dangerous given his particularized knowledge of his swimming abilities, together with the readily observable distance between the starting point and the cache, as well as the generally known potential for undercurrents and uneven depths in open waters. There was reasonable opportunity for him to avoid this danger by choosing not to participate in the activity, and yet, he entered the water choosing to swim at his own risk. In doing do, Mr. Sample failed to use ordinary care before entering the water on May 14, 2013 as a matter of law.

(Sept. 25, 2018 Decision & Entry at 8.)

         {¶ 14} The trial court then concluded that no reasonable finder of fact could find that Xenos was grossly negligent, willful, or wanton. Absent evidence of gross negligence, willfulness, or wantonness to override the affirmative defense of contributory negligence, Xenos prevailed.

         {¶ 15} The Estate now appeals the September 25, 2018 judgment, and it assigns the following error:

The Trial Court erred when it granted Defendant-Appellee's ("Xenos") motion for summary judgment.

         {¶ 16} Initially, we must address the conflict-of-law issue the Estate raises; namely, whether the trial court erred in applying North Carolina law to the issue of contributory fault. Appellate courts review a trial court's choice-of-law determination de novo. Walker v. Nationwide Mut. Ins. Co., 10th Dist. No. 16AP-894, 2018-Ohio-1810, ¶ 16.

         {¶ 17} In resolving a conflict of law, the forum court applies the choice-of-law rules of its own state. Pevets v. Crain Communications, Inc., 6th Dist. No. OT-10-023, 2011-Ohio-2700, ¶ 32. Ohio has adopted the Restatement of the Law 2d, Conflict of Laws (1971) ("Restatement"), in its entirety to govern choice-of-law analysis. Am. Interstate Ins. Co. v. G & H Serv. Ctr., Inc., 112 Ohio St.3d 521, 2007-Ohio-608, ¶ 8. The Restatement employs the significant-relationship test, which seeks to identify and apply the law of the state that has the most significant relationship with the parties and dispute. Restatement, Section 145(1); Hay, Borchers, Symeonides, & Whytock, Conflict of Laws, Section 2.14A, 60 (6th Ed.2018). To achieve that objective in a tort action, a court must focus on at least three different sections of the Restatement. The most crucial of those three sections is Section 6. Hay, Borchers, Symeonides, & Whytock, Section 2.14A, at 58 ("Section 6 is the cornerstone of the entire Restatement."). Section 6 lists the principles for a court to consider in choosing the applicable law, which include:

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of the other interested states and the relative interests of those states in the determination ...

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