Wagner v. Kretz
2017 Ohio 8517
| Ohio Ct. App. | 2017Background
- On May 26, 2014 John Wagner rode on a Memorial Day parade float built on an aluminum flatbed trailer; he provided six unsecured wooden folding chairs and a wrought-iron tripod/flower arrangement (the tripod and casket were strapped down; chairs were not).
- Defendant Daniel Kretz towed the float with his pickup. While returning after the parade, his truck hit a large roadway defect; riders fell and John Wagner suffered serious injuries (~$200,000 in medical bills).
- Plaintiffs sued Kretz, the City of Lima, and several contractors alleging negligent operation and negligent maintenance/creation of the road defect; several defendants and cross-claims were later dismissed, leaving Kretz and the City.
- The trial court granted summary judgment for Kretz and the City, holding the primary assumption of risk doctrine barred plaintiffs’ negligence claims because the activity was inherently dangerous.
- Plaintiffs appealed, arguing the trial court erred in finding participation in the parade (or riding the float) was an inherently dangerous activity subject to primary assumption of risk.
- The Third District affirmed, focusing on the specific activity of sitting on an unsecured wooden chair on a towed flatbed trailer and applying the three-prong primary assumption of risk test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether primary assumption of risk bars Wagner's negligence claim | Wagner: Riding in a parade is not inherently dangerous; defendants owed a duty and may be negligent in operation or road maintenance | Kretz/City: Sitting on an unsecured chair on a towed flatbed is inherently dangerous; danger is ordinary, commonly known, and caused the injury | Court: Primary assumption of risk applies; defendants owed no duty and summary judgment was proper |
Key Cases Cited
- Lawrence v. Toledo Terminal R. Co., 154 Ohio St. 335, 96 N.E.2d 7 (Ohio 1950) (analyzed inherent danger of sitting on unsecured object on moving trailer)
- Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 659 N.E.2d 1232 (Ohio 1996) (primary assumption of risk precludes establishing duty element of negligence)
- Collier v. Northland Swim Club, 35 Ohio App.3d 35, 518 N.E.2d 1226 (Ohio Ct. App. 1987) (certain risks are so inherent they cannot be eliminated)