2023 Ohio 288
Ohio Ct. App.2023Background
- On August 28, 2018, Cheryl Inskeep was struck by a golf cart at the Columbus Zoo and transported to the hospital; her husband sued for loss of consortium.
- Employee Tessa Wilhelm had parked a Zoo golf cart with the ignition left on (key removed) to pick up signs and engaged the brake but did not turn it off; she left it unattended.
- A three-year-old child entered the unattended cart, operated it, and the cart hit Mrs. Inskeep. Wilhelm and others observed the child in the cart after the collision.
- Zoo policies required carts to be escorted during public hours and limited cart use to emergencies; collecting signs was not an emergency and no escort was present.
- Trial court granted summary judgment to the Zoo, finding no duty (Zoo did not know of danger) and that the child’s act was an unforeseeable intervening superseding cause.
- The appellate court reversed and remanded, holding genuine issues of material fact exist as to duty/breach and proximate cause/intervening act, and thus summary judgment was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zoo owed a duty and breached it by leaving a cart unattended and operable | Zoo (Inskeep) - employee left cart running, violated escort/emergency policies, knew cart could be operated without key, so harm was foreseeable and duty arose | Zoo - no duty because it did not, in exercise of ordinary care, know of a danger; no prior similar incidents to put Zoo on notice | Court: Reversed summary judgment; under totality of circumstances duty may exist and breach is a genuine issue of material fact |
| Whether the child’s act was a superseding/intervening cause breaking causation | Inskeep - child’s act was foreseeable given unattended, operable cart and employee knowledge; original negligence may remain proximate cause | Zoo - child’s independent, unforeseeable act breaks causal chain and absolves Zoo of liability | Court: Reversed summary judgment; whether the child’s act was foreseeable is a factual question for jury |
| Whether loss of consortium claim fails if underlying tort fails | Inskeep - derivative claim depends on triable issue of tort liability | Zoo - consortium fails if no actionable tort | Court: Because triable issues exist on Mrs. Inskeep’s negligence, summary judgment on consortium was improper |
Key Cases Cited
- Holdshoe v. Whinery, 14 Ohio St.2d 134, 237 N.E.2d 127 (1968) (landowner may owe duty where specific circumstances and failures to take precautions make harm foreseeable)
- Mussivand v. David, 45 Ohio St.3d 314, 544 N.E.2d 265 (1989) (elements of negligence and proximate cause standard)
- Menifee v. Ohio Welding Prods., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984) (duty depends on foreseeability)
- Mudrich v. Standard Oil Co., 153 Ohio St. 31, 90 N.E.2d 859 (1950) (foreseeability defined as knowing or should have known act likely to result in harm)
- Berdyck v. Shinde, 66 Ohio St.3d 573, 613 N.E.2d 1014 (1993) (intervening act may relieve liability if it breaks causal link)
- Cascone v. Herb Kay Co., 6 Ohio St.3d 155, 451 N.E.2d 815 (1983) (test whether original and successive acts can be joined as a whole or an independent cause intervened)