Booth v. Walls
2013 Ohio 3190
Ohio Ct. App.2013Background
- On Aug. 24, 2008, minors were trap-shooting at the Walls’ property using a clay-target thrower mounted ~3 feet high; Morgan (14) was struck in the face by the machine’s throwing arm while gathering spent shells and sustained serious injuries.
- The Booths sued the Walls alleging premises liability, negligence, negligent supervision, negligent entrustment, recklessness, and loss of consortium; Walls counterclaimed against the Booths and third-partied Nathan (another minor).
- Walls initially denied liability and asserted defenses (contributory negligence, failure to join indispensable parties, failure to mitigate) and reserved right to plead additional defenses; later moved for summary judgment invoking recreational-user immunity (R.C.1533.181) and primary assumption of the risk.
- Trial court found a factual dispute on whether the property was residential (so declined summary judgment on R.C.1533.181) but concluded as a matter of law that primary assumption of the risk barred the Booths’ negligence claims and that there was no genuine issue of recklessness by the Walls.
- The Walls were granted leave to amend their answer to expressly plead primary assumption of the risk before the renewed summary-judgment ruling; the trial court then entered final summary judgment for the Walls and dismissed their counterclaims/third-party complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by deciding motion on an affirmative defense not pleaded | Booth: Walls waived primary-assumption defense by not pleading it earlier | Walls: they reserved the right and sufficiently raised the defense in summary-judgment filings; leave to amend was proper | Court: No error — amendment with leave was proper, Booths had notice and were not prejudiced; leave to amend not an abuse of discretion |
| Whether primary assumption of the risk bars negligence claims | Booth: activity had ceased (cleanup, not shooting); injury not an inherent risk of cleanup | Walls: picking up shells was part of the recreational activity; risk from an operational thrower is inherent | Court: Held defense applies — injury occurred during the recreational activity and was from an inherent risk of trap shooting |
| Whether factual disputes precluded summary judgment on negligence | Booth: conflicting testimony about whether activity had ended and who cocked the machine | Walls: evidence shows activity continued (cleanup) and known risk remained; objective rule applies | Court: No genuine issue of material fact sufficient to avoid summary judgment on negligence — primary assumption bars recovery |
| Whether there was a triable issue of reckless conduct by Walls | Booth: Walls’ alcohol consumption, supervision, and mounting the machine at 3 ft. amounted to recklessness (expert affidavit) | Walls: they gave safety instructions, provided goggles, parents were nearby and also drank; no link between alcohol and a specific reckless act; expert not shown competent to opine on legal recklessness | Court: No — evidence did not show conduct rising to legal recklessness; summary judgment on reckless claim proper |
Key Cases Cited
- Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427 (recognizes assumption-of-risk as an affirmative defense)
- Marchetti v. Kalish, 53 Ohio St.3d 95 (applies primary assumption of risk to minors in recreational activities)
- Jim’s Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18 (affirmative defenses waived if not pleaded or amended)
- Hoover v. Sumlin, 12 Ohio St.3d 1 (Civ.R.15 amendment standards; leave to amend should be freely given absent bad faith/undue prejudice)
- Chambers v. St. Mary’s School, 82 Ohio St.3d 563 (elements of negligence; duty is a question of law)