2018 Ohio 2905
Ohio Ct. App.2018Background
- On Aug. 26, 2008, OSHP trooper Robert Peterson was injured by fragmentation during an explosive-breaching training taught by Randy Martyn at the Columbus bomb range; Peterson sued Martyn, Gahanna Police Department (GPD), Sgt. James Graham, and others.
- Martyn, a certified master breacher and GPD officer, ran a two-day seminar; some OSHP students used OSHP’s shot sequence and Graham (GPD) testified to using GPD’s different shot sequence.
- The critical dispute: whether Martyn instructed the class on a single, cohesive shot sequence; students uniformly testified he did not, while Martyn testified he had covered a shot sequence.
- At the time of the blast Peterson had stepped toward the open area and began the “fire in the hole” warnings; Graham (the primary breacher) detonated on the third command and fragmentation struck Peterson’s leg.
- Trial court granted summary judgment for appellees on the basis that primary assumption of risk barred recovery and that appellees were not reckless; the Tenth District reversed, finding factual disputes precluded applying primary assumption of risk as a matter of law and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether primary assumption of risk bars Peterson's negligence claim | Peterson: the risk was elevated by defendants’ conduct (failure to instruct a common shot sequence); therefore implied assumption/comparative negligence applies, not primary. | Appellees: explosive breaching is inherently dangerous; participant assumed the ordinary risks, so primary assumption of risk bars recovery unless conduct was reckless. | Reversed: factual dispute (did Martyn instruct shot sequence?) prevents applying primary assumption of risk as a matter of law; remand for implied-assumption/comparative-negligence analysis if no instruction was given. |
| Whether Martyn acted recklessly (negating primary assumption defense) | Peterson: Martyn breached instructor duty by failing to ensure a single shot sequence and warn students, elevating risk. | Martyn: he met standard of care, told the class the shot sequence (slides/video), and was not reckless. | Not addressed on merits by appellate court (moot on remand); factual issues remain for trial. |
| Whether Graham acted recklessly as the primary breacher | Peterson: Graham failed to visually clear the detonation area and detonated using a different sequence, constituting recklessness. | Graham: acted within training norms and was not reckless; asserted immunity. | Not resolved; appellate court found issue moot pending remand because primary assumption ruling reversed. |
| Whether GPD/Graham are immune or GPD is suable | Peterson: Graham was on vacation (personal time) during the seminar, so acts were outside scope of employment; GPD is capable of suit. | GPD/Graham: Graham entitled to statutory immunity under R.C. 2744.03(A)(6); GPD argued it was not a suable political subdivision. | Court declined to address on appeal because trial court did not rule on factual matters (e.g., Graham’s vacation status); issues remain for trial court to consider on remand. |
Key Cases Cited
- Menifee v. Ohio Welding Prods. Inc., 15 Ohio St.3d 75 (Ohio 1984) (elements of actionable negligence).
- Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427 (Ohio 1996) (successful primary assumption of risk negates duty element).
- Gentry v. Craycraft, 101 Ohio St.3d 141 (Ohio 2004) (primary assumption of risk applies to spectators and participants).
- Santho v. Boy Scouts of Am., 168 Ohio App.3d 27 (Ohio Ct. App.) (defining primary-assumption elements).
- Crace v. Kent State Univ., 185 Ohio App.3d 534 (Ohio Ct. App.) (distinguishing primary vs. implied assumption; focus on activity itself).
- Collier v. Northland Swim Club, 35 Ohio App.3d 35 (Ohio Ct. App. 1986) (implied assumption of risk does not eliminate defendant’s duty; merged with comparative negligence).
- Thompson v. McNeill, 53 Ohio St.3d 102 (Ohio 1990) (examples of inherent risks in sports/activities).
- Anderson v. Ceccardi, 6 Ohio St.3d 110 (Ohio 1983) (implied assumption of risk merged into comparative negligence statute).