2016 Ohio 5643
Ohio Ct. App.2016Background
- Wells Township operated a paid haunted-house attraction containing three swinging-coffin rides; the township designed and built the coffins and ran the attraction through its recreational department and volunteers.
- On Oct. 19, 2012, Milbert was an invited participant in a coffin ride when the coffin lid opened prematurely and she was ejected and injured.
- Post-accident inspection showed a bolt had loosened and caught on the lid during release; the township’s director (a police captain) attested inspections occurred before and after each ride and no defects had been noted before the accident.
- Plaintiff sued for negligence/premises liability alleging negligent design, construction, and maintenance and failure to warn; defendants asserted political-subdivision immunity (operation was a proprietary function) and sought summary judgment.
- Plaintiff submitted an affidavit from an amusement-safety consultant who inspected the ride and opined the township negligently used ungraded eye bolts for load-bearing use and designed the release mechanism to travel across the eye bolt, making loosening foreseeable.
- The trial court denied summary judgment; the township appealed the denial (and separately sought dismissal of Wells Township Haunted House, Inc., which post-dated the accident).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dismissal of corporate defendant | Corp. formed after accident and is not a proper defendant | Corp. should be dismissed because it did not exist at time of injury | Court: Not addressed on appeal (order denying dismissal is not an immediately appealable immunity issue); assignment overruled as premature |
| Political-subdivision immunity / foreseeability | Milbert: township created and controlled ride; negligent design (ungraded eye bolts; release path across bolt) made failure foreseeable | Township: operation is proprietary but no employee negligence; no notice or foreseeability; inspections found no defects; liability would make it insurer of property | Court: Genuine issue of material fact exists on negligent design/construction; immunity denied was proper; summary judgment denial affirmed |
| Duty and relevance of notice | Milbert: duty to exercise ordinary care in design/construction; actual/constructive notice irrelevant when defendant created hazard | Township: duty limited to reasonable inspections; lack of prior incidents and inspections shows no negligence or notice | Court: If hazard results from an employee/owner negligent act (design/construction), notice is irrelevant; reasonable minds could differ about negligence in design/construction |
| Expert opinion on negligence | Consultant provided factual observations and expert opinion tying design choices to foreseeability of failure | Township argued expert improperly stated legal conclusions and cannot create duty where none exists | Court: Expert affidavit admissible on ultimate issue; raised factual dispute sufficient to preclude summary judgment |
Key Cases Cited
- Hubbell v. Xenia, 115 Ohio St.3d 77 (2007) (denial of immunity claim is immediately appealable)
- Sullivan v. Anderson Twp., 122 Ohio St.3d 83 (2009) (appealability rules for immunity orders)
- Byrd v. Smith, 110 Ohio St.3d 24 (2006) (summary-judgment burdens and standards)
- Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75 (1984) (elements of negligence: duty, breach, proximate cause)
- Anaple v. Standard Oil Co., 162 Ohio St. 537 (1955) (premises-liability avenues: negligent creation, actual knowledge, constructive knowledge)
- Perry v. Eastgreen Realty Co., 53 Ohio St.2d 51 (1978) (landowner’s full duty regarding original construction and dangerous conditions)
- Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (1985) (business invitee duty: owner not insurer but owes ordinary care)