2014 Ohio 5549
Ohio Ct. App.2014Background
- On July 21, 2011, Charles Berry was struck and killed by a GCRTA Red Line train after he was observed on the tracks at the East 120th Street station.
- Train operator Katherine Underwood testified she saw Berry stumble onto the tracks, sounded the horn, and applied emergency brakes but could not stop in time.
- Appellant Dawn Ellis (as administrator of Berry’s estate) sued GCRTA and Underwood for wrongful death, survivorship, and loss of consortium, alleging negligence and negligent design/maintenance of the station.
- Defendants moved for summary judgment; the trial court granted judgment for GCRTA and Underwood, finding appellant’s claims barred by primary assumption of the risk and the open-and-obvious doctrine; the court also addressed (and rejected) claims of Underwood’s reckless/wanton conduct.
- On appeal, the Eighth District affirmed, holding crossing/being on active tracks is an inherently dangerous activity subject to primary assumption of the risk and that the record did not show Underwood acted recklessly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GCRTA is liable for negligence / duty when Berry was on active tracks | Ellis: GCRTA owed a duty to prevent harm and cannot avoid duty by invoking assumption of risk | GCRTA: Being on active tracks is an inherently dangerous activity; primary assumption of risk and open-and-obvious doctrines bar recovery | Court: Affirmed for GCRTA — primary assumption of risk applies; plaintiff cannot establish duty |
| Whether Underwood is liable for reckless or wanton conduct (overcoming statutory immunity) | Ellis: Underwood failed to keep proper lookout, react timely, and thus acted recklessly | Underwood: Evidence shows she took emergency measures; expert opinion alleges negligence only, not recklessness | Court: Affirmed for Underwood — record fails to show the conscious, perverse disregard required for recklessness |
Key Cases Cited
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (2003) (elements of negligence: duty, breach, proximate cause, injury)
- Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312 (1996) (landowner’s duty elevates to ordinary care when a trespasser is discovered in peril)
- O’Toole v. Denihan, 118 Ohio St.3d 374 (2008) (recklessness requires conscious awareness that conduct will likely cause injury)
- Thompson v. McNeill, 53 Ohio St.3d 102 (1990) (definition and standard for reckless conduct)