Thomas v. Strba
2013 Ohio 3869
Ohio Ct. App.2013Background
- James Thomas and Ronald Strba, long-time friends and hunting partners, went to Strba’s Medina County property on Nov. 28, 2010 to add boards to a pre-existing tree stand in preparation for opening day of hunting season the next day.
- Strba had been nailing additional boards between widely spaced pre-existing 2x4 rungs; after adding several boards he grew tired and Thomas climbed the stand to continue the work.
- A pre-existing board pulled away from a tree while Thomas was holding it, and he fell and was seriously injured.
- The Thomases sued Strba for negligence and loss of consortium; Strba moved for summary judgment arguing the claims were barred by the primary assumption of risk doctrine for recreational activities.
- The trial court granted summary judgment, finding Thomas was engaged in a recreational activity (building the hunting stand) and that no evidence showed intentional or reckless conduct; the Thomases appealed.
- The Court of Appeals reversed, holding Thomas was not engaged in the recreational activity at the time of injury and that the trial court wrongly resolved factual disputes on summary judgment; case remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether primary assumption of risk applies when injury occurs before the recreational activity begins | Thomas: doctrine does not apply because hunting had not yet begun; injury occurred during preparation | Strba: doctrine applies to inherent risks of hunting-related activity such as building/climbing stands | Held: Doctrine does not apply pre-activity; Thomas was not engaged in the recreational activity when injured (reversed) |
| Whether building a structure intended for later recreational use qualifies as the recreational activity itself | Thomas: building a stand is preparatory, not the recreational activity | Strba: building/using the stand is part of the recreational activity and its risks are assumed | Held: Building was preparatory and not a recreational activity for purposes of primary assumption of risk |
| Whether primary assumption of risk applies during construction phase of a structure for later recreational use | Thomas: doctrine should not bar recovery for injuries during construction | Strba: construction risks are within the scope of assumed risks tied to the recreational purpose | Held: Doctrine does not extend to construction phase here; material facts remain for trial |
| Whether genuine issues of fact exist as to whether Strba acted recklessly or the danger was ordinary to hunting | Thomas: evidence supports at least recklessness and that the hazard was not an ordinary hunting risk | Strba: no evidence of reckless or intentional conduct; ordinary hunting risk defense | Held: Court declined to reach because primary-assumption issue resolved in Thomas’s favor; assignments on recklessness/moothness left for trial/moot |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (standard for de novo review of summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Civ.R. 56 standards and summary judgment framework)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party’s burden in summary judgment and nonmoving party’s response)
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (elements of negligence claim)
- Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427 (primary assumption of risk defeats duty element)
- Marchetti v. Kalish, 53 Ohio St.3d 95 (participants assume ordinary risks of recreational activities)
- Gentry v. Craycraft, 101 Ohio St.3d 141 (analysis of when primary assumption of risk applies to play/recreational conduct)