Wemer v. Walker
2013 Ohio 2005
Ohio Ct. App.2013Background
- Wemers were injured May 31, 2010 when James Wemer was bitten by ponies owned by Walker.
- May 2011: James and Clara Wemer filed a personal injury complaint in Knox County Court of Common Pleas.
- Walker answered March 31, 2011, asserting defenses including comparative negligence, assumption of risk, and immunity issues.
- Walker moved for summary judgment March 20, 2012, arguing immunity under R.C. 2305.321.
- Trial court granted summary judgment on July 24, 2012, in favor of Walker.
- Court of Appeals reversed and remanded, sustaining Wemers’ first assignment of error and deeming the second assignment moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether immunity under R.C. 2305.321 was forfeited | Wemer asserts jury question on forfeiture via acts/omissions. | Walker contends immunity applied as a matter of law. | Trial court erred; waiver not supported. |
| Whether grant of summary judgment denied due process right to remedy | Wemers contend violation of right to remedy under Ohio Constitution. | Walker argues no constitutional right violated by summary judgment. | Issue moot after reversal on the first assignment. |
Key Cases Cited
- Supportive Solutions Training Academy L.L.C. v. Electronic Classroom of Tomorrow, 8th Dist. Nos. 95022, 95287, 2012-Ohio-1185 (8th Dist. 2012) (affirmative defenses must be raised; summary judgment not proper to raise defenses first)
- Brown v. Lincoln Hts., 195 Ohio App.3d 149, 2011-Ohio-3551, 958 N.E.2d 1280 (1st Dist. 2011) (waiver of affirmative defenses raised late; recreational-user immunity example)
- Eulrich v. Weaver Bros., Inc., 165 Ohio App.3d 313, 2005-Ohio-5891, 846 N.E.2d 542 (3rd Dist. 2005) (affirmative defenses cannot be raised for the first time on summary judgment)
- Mossa v. W. Credit Union, Inc., 84 Ohio App.3d 177, 616 N.E.2d 571 (10th Dist. 1992) (affirmative defenses must be timely raised; not raised here)
- Koren v. Grogan, 68 Ohio St.3d 590, 629 N.E.2d 446 (1994) (statutory immunities must be raised to avoid waiver)
- Carmen v. Link, 119 Ohio App.3d 244, 695 N.E.2d 28 (1997) (affirmative defenses cannot be raised for the first time on summary judgment)
- Leibson v. Ohio Dept. of Mental Retardation & Developmental Disabilities, 84 Ohio App.3d 751, 618 N.E.2d 232 (8th Dist. 1992) (affirms requirement to assert immunity defenses timely)