West v. Devendra
2012 Ohio 6092
Ohio Ct. App.2012Background
- West and Devendra jointly owned an ATV and were riding it on the evening of December 19, 2009; West rode as a passenger.
- Devendra drove the ATV; West attempted to shift to neutral after hearing a loud engine, but could not reach the gear shift.
- Devendra allegedly caused the ATV to surge backward at high speed; the throttle allegedly stuck due to sleeves/hand warmers.
- West was thrown from the ATV, fracturing her back and tearing a knee meniscus; she later required knee surgery.
- West filed a negligence action; Devendra claimed the activity was recreational and liability requires recklessness or intentional conduct.
- The trial court granted summary judgment for Devendra and denied West’s motion to amend to plead recklessness; West appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a genuine issue of material fact that the activity was recreational? | West argues the backing maneuver removed the activity from recreation. | Devendra asserts ATV use was recreational, triggering primary assumption of risk. | No; riding/driving ATV is recreational, so only recklessness could support liability. |
| Is the risk of harm inherent to ATV riding? | Inherent risk was not shown; loss of throttle control may be atypical. | Loss of control and passenger ejection are inherent risks of ATV riding. | Yes; losing control and being thrown are inherent risks of ATV riding. |
| Did Devendra's conduct rise to recklessness warranting liability? | Devendra failed to follow safety instructions and acted negligently with an open throttle. | Actions were a genuine, but not reckless, struggle to control an emergency; no intentional disregard. | No; record shows no recklessness; failure to follow manual instructions did not prove recklessness. |
| Did the trial court abuse its discretion denying leave to amend to plead recklessness? | Amendment should be allowed to address recklessness. | No evidence of recklessness; amendment would fail. | No; denial was not an abuse of discretion given lack of recklessness evidence. |
Key Cases Cited
- Marchetti v. Kalish, 53 Ohio St.3d 95 (1990) (primary assumption-of-risk in recreational activity)
- Gentry v. Craycraft, 101 Ohio St.3d 141 (2004) (limits liability when conduct is a foreseeable part of the activity)
- Curtis v. Schmid, 2008-Ohio-5239 (5th Dist.) (ATV driving risk deemed inherent; flipping foreseeable)
- Pope v. Willey, 2005-Ohio-4744 (12th Dist.) (inherent risks are those foreseeable/part of the activity)
- Thompson v. McNeil, 53 Ohio St.3d 102 (1990) (recklessness defined; conscious disregard required)
- Byer v. Lucas, 2009-Ohio-1022 (7th Dist.) (distinguishes inherent risks from non-inherent hayride risks)
- Taylor v. Mathys, 2005-Ohio-150 (3d Dist.) (recreational activity standard applied to ATV context)