2016 Ohio 2661
Ohio Ct. App.2016Background
- In 2010, 13-year-old M.H. walked alongside a moving parade float sponsored by Local Carpenters Union 2239 and repeatedly reached into the trailer to retrieve candy being distributed.
- While the float was moving slowly, M.H. was injured when the float ran over her feet.
- M.H.'s mother, Dawn Hallier, sued the float driver (Patricia Bortel-Fishe) and the Local Carpenters Union 2239 for negligence.
- The trial court granted summary judgment for defendants; Hallier appealed to the Sixth District Court of Appeals.
- The appeals court reviewed the summary judgment de novo and considered the open-and-obvious doctrine and primary assumption of the risk as bar to recovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the hazard (moving wheels/exposed float) was open and obvious | Hallier: M.H. was unaware and thus should not be charged with notice | Defendants: Moving wheels and approaching a float were objectively open and obvious | Court: Hazard was open and obvious; summary judgment affirmed |
| Whether M.H. assumed the risk of injury by participating in the activity | Hallier: Participation did not constitute tacit consent to this injury; defendants were negligent | Defendants: Walking alongside and retrieving candy from a moving float is an inherently dangerous recreational activity; primary assumption of risk applies | Court: Activity was inherently dangerous; primary assumption of the risk barred recovery unless recklessness shown; affirmed summary judgment |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (governs de novo appellate review of summary judgment)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (Ohio 1978) (summary judgment standard)
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (Ohio 2003) (explains open-and-obvious doctrine)
- Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642 (Ohio 1992) (owner may expect entrants to discover open-and-obvious hazards)
- Collier v. Northland Swim Club, 35 Ohio App.3d 35 (Ohio Ct. App. 1986) (primary assumption of risk and tacit consent)
- Santho v. Boy Scouts of Am., 168 Ohio App.3d 27 (Ohio Ct. App. 2006) (primary assumption of the risk applies to recreational activities)