Lead Opinion
Thе primary issue in this case is whether the Exhibit A release entitles appellees to summary judgment on Bowen’s negligence claim and the loss of consortium claims of Bowen’s wife and children. For the reasons that follow, we find that the Exhibit A release does not entitle appellees to summary judgment on these claims.
In the case at bar, the court of appeals found that Bowen, at his deposition, admitted to having signed the Exhibit A and B releases but that later, in his sworn affidavit, Bowen denied signing the releases. The court of appeals determined that Bowen could not create a gеnuine issue of fact as to whether he signed the Exhibit A release by merely contradicting his own deposition testimony. Therefore, the court of appeals ignored portions of Bowen’s
Civ.R. 56(C)
Applying the standards of Civ.R. 56(C), we find that the questions whether Bowen signed the Exhibit A release or was denied the opportunity to read the release are questions of fact which, for purposes of summary judgment, must be resolved in appellants’ favor. Therefore, appellees are not entitled to summary judgment on the basis of the Exhibit A release since it must be assumed for purposes of summary judgment that Bowen never properly executed the release.
We note that appellants also seek our determination that the registration card release does not prevent them from recovering against appellees. However, the trial court specifically declined to address the ambiguity (if any) of the registration card release. The judgment of the trial court was based solely on the enforceability of the Exhibit A release. While it is true that the court of appeals’ opinion repeatedly refers to “releases,” the question whether the registration card release was enforceable was not properly before the court of appeals.
Appellants also contend that the Exhibit A release does not preclude them from recovering against appellees for willful or wanton misconduct. According to appellants, the evidence indicates that appellees’ failure to timely stop the race was willful or wanton. Therefore, appellants argue that summary judgment should not have been granted to appellees on the basis of the Exhibit A release.
With respect to this issue, the trial court held that the evidence does not support appellants’ allegations of willful and wanton misconduct “[gjiven Bowen’s knowledge of the risks involved and his assumption of those risks * * On apрeal to the court of appeals, the issue of willful or wanton misconduct was briefed and the trial court’s ruling on the issue was assigned as error. In spite of this fact, the court of appeals failed to address the issue. See App.R. 12(A). Under these circumstances, we would normally remand
Upon remand, the question concerning the release and willful or wanton misconduct will surely again arise between the parties to this appeal. Therefore, we address appellants’ arguments.
It has generally been held that a participant in a stock-car race and the proprietor of such activity are free to contract in such a manner so as to relieve the proprietor of responsibility to the participant for the proprietor’s negligence, but not for the proprietor’s willful or wanton misconduct. See, e.g., Seymour v. New Bremen Speedway, Inc. (1971),
Bowen’s automobile was stopped on the racetrack in a hazardous position. The flagman looked directly at the disabled automobile and Bowen motioned to the flagman for help. However, the flagman allowed the race to continue contrary to the rules of the race and contrary to the normal practice at Kil-Kare Speedway. With approximately one hundred twenty-four laps of racing yet to be completed, Bowen sat stranded in his automobile while other automobiles sped past him reaching speeds up to sixty miles per hour. Eventually, Bowen’s automobile was rear-ended.
We find that the Exhibit A release, if properly executed, could only relieve appellees of liability to Bowen for negligence, but not for appellees’ willful or wanton misconduct. Viewing the evidence in a light most favorable to appellants, we believe that reasonable minds can reach differing conclusions as to whether appellees’ failure to timely stop the race, in clear violation of the rules of the event, was either negligent or willful and wanton. Therefore, apрellees were not entitled to summary judgment on the basis of the Exhibit A release.
Next, appellants argue that the Exhibit A release does not bar the loss of consortium claims of Bowen’s wife and children even if Bowen properly executed the Exhibit A release and even if the Exhibit A release precludes Bowen from recovery on his negligence claim. We first address appellants’ argument as it relates to the consortium claim of Brenda M. Bowen, Bowen’s wife.
The trial court and court of appeals held that Brenda Bowen’s loss of consortium claim could be defeated by appellees’ defense that the Exhibit A release precluded William Bowen from recovering against appellees. As such, the trial court and court of appeals clearly viewed Brenda Bowen’s loss of consortium claim as a purely “derivative” claim, meaning that the success of Brenda’s loss of consortium claim was entirely dependent upon the success of her husband’s negligence claim. However, this view is not consistent with our previous pronouncements concerning the independent nature of a claim for loss of spousal consortium.'
In Ohio, it is well established that a wife has a cause of action for damages for loss of consortium against a person who, either intentionally or negligently, injures her husband and thereby deprives her of the lоve, care and companionship of her husband. Clouston v. Remlinger Oldsmobile Cadillac, Inc. (1970),
In Flandermeyer v. Cooper (1912),
Our review of the foregoing authorities demonstrates thаt Ohio has long recognized, and properly so, an independent right of the wife to be compensated for her loss of consortium. The right is her separate and personal right arising from the damages she sustains as a result of the tortfeasor’s conduct. The right of the wife to maintain an action for loss of consortium occasioned by her husband’s injury is a cause of action which belongs to her and which does not belong to her husband.
In the case at bar, we find that the Exhibit A release does not defeat Brenda Bowen’s claim against appellees for loss of consortium even if her husband properly executed the release and even if the release bars him from recovering against appellees. Brenda’s claim is a separate and independent claim against appellees for the damages she sustained as a result of appellees’ conduct, and it is not a claim that her husband could effectively release. Accord Arnold v. Shawano Cty. Agricultural Society (1983),
Accordingly, we hold that an action for loss of consortium occasioned by a spouse’s injury is a separate and distinct cause of action that cannot be defeated by a contractual release of liability which has not been signed by the spouse who is entitled to maintain the action. In so holding, we recognize
Furthermore, our holding today does not affect the apportionment of fault under R.C. 2315.19. If the spouse who suffers personal injury contributed to his or her injury, the contributory fault of that spouse may bе imputed to the spouse claiming loss of consortium arising out of the injurious occurrence for purposes of limiting or defeating recovery on the loss of consortium claim. Accord Arnold, supra. See, also, Lee v. Colorado Dept. of Health (Colo. 1986),
With respect to the loss of “consortium” claims by Bowen’s minor children premised upon their father’s personal injuries, we note that this court has yet to recognize that children may maintain such an action for loss of “parental consortium.” The parties to this appeal have not sought our determination whether such a cause of action exists in Ohio, and we have received no briefing or argument on the issue but we do note, in passing, our discussion, supra, concerning the consortium claim of Brenda Bowen.
The trial court and court of appeals held only that appellees were entitled to summary judgment on the children’s claims for loss of parental consortium on the basis of the release(s). Our determination with regard to the enforceability of the release necessitates that this cause be remanded to the trial court for further proceedings. On remand, the trial court may properly consider whether a child can maintain a cause of action for loss of parental consortium against a tortfeasor who negligently or intentionally injures the child’s parent. We are aware of the 1964 case of Kane v. Quigley (1964),
The final issue before us is whether the court of appeals correctly determined that appellees were not entitled to summary judgment on the negligent infliction of emotional distress claims by Bowen’s wife and children. We agree with the court of appeals’ determination that since appellees never moved for summary judgment on the negligent infliction of emotional distress claims of Bowen’s wife and children, appellees were not entitled to summary judgment on these claims. This conclusion is merely a logical extension of our holding in Marshall v. Aaron (1984),
In conclusion, appellees were not entitled to summary judgment on any of the claims set forth in appellants’ complaint. Accordingly, we affirm the judgment of the court of appeals in part and we reversе it in part. We order that appellants’ complaint be reinstated and we remand this cause to the trial court for further proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part and cause remanded.
Notes
. In Swift, supra, the Court of Appeals for Cuyahoga County held that where a party defending a motion for summary judgment submits a favorable affidavit contradicting that party’s earlier and unfavorable deposition testimony, the affidavit must be considered truthful for purposes of summary judgment absent a finding that the affidavit was made in bad faith.
. The court of appeals apparently found that more than one release entitled appellees to summary judgment on these claims. However, since the judgment of the trial court was based solely on the validity of the Exhibit A release, we find that the judgment of the court of appeals must have been based solely on the validity of that release as well.
. Civ.R. 56(C) provides, in part, that:
“ * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * * ”
. In his deposition, Bowen admitted that his signature appears on the Exhibit A and B releases but denied having ever signed the documents. Bowen maintained that prior to the May 31, 1987 race, he was merely required to sign a blank sheet of paper along with a registration card. Bowen stated that this procedure was followed for every race that he entered at Kil-Kare Speedway. Bowen denied that the Exhibit A or B releases were required to be signed by him prior to any race conducted at Kil-Kare Speedway. In his affidavit, Bowen asserted that he never saw, signed, or was given an opportunity to read thе Exhibit A release or any similar release prior to the commencement of his lawsuit against appellees. Thus, while Bowen has
Because of our finding that there was no discrepancy between Bowen’s deposition testimony and his affidavit testimony, this case, on that issue, is not in conflict with Swift, supra. Therefore, other than our discussion, supra, on the issue, we make no further comment.
. See fn. 5, supra.
. See, e.g., Hibpshman v. Prudhoe Bay Supply, Inc. (Alaska 1987),
. See, e.g., Gray v. Suggs (1987),
Concurrence in Part
concurring in part and dissenting in part.
I
I concur in the majority’s conclusion that the trial court erred in granting summary judgment on appellants’ claim that appellees’ conduct was willful and wanton. For that reason I concur that this action should be remanded to the trial court. I also agree that the court of appeals was correct in determining that appellees were not entitled to summary judgment on the claims of negligent infliction of emotional distress, and with the position expressed in footnote 7 that no conflict exists between this action and Swift v. Two Hundred Place (Nov. 13, 1986), Cuyahoga App. No. 51320, unreported,
II
The most significant problem with the opinion is the majority’s unwillingness to apply the proper standard of review in summary-judgment actions. In Wing v. Anchor Media, Ltd. of Texas (1991),
The majority declares that apрellant Bowen’s affidavit creates questions of fact that, “for purposes of summary judgment, must be resolved in appellants’ favor.” What the majority misses in its reading of Civ.R. 56(C) is that a genuine issue of material fact must be raised in order to defeat a motion for summary judgment. No such issue has been raised through appellant’s affidavit here.
Bowen’s deposition testimony clearly indicates his acknowledgement that the signatures on the releases, Exhibits A and B, appear to be his. His affidavit amounts to no more than a denial that he ever signed those releases, a position equivalent to that maintаined by appellants in their complaint. In
Thus, I would uphold the court of appeals’ determination that the trial court properly entered summary judgment on the issue of negligence. Appellants did not carry their burden, under Civ.R. 56, to rebut the evidence of releases containing Bowen’s signatures. The unrebutted releases clearly bar his negligence claims as a matter of law.
Ill
As to the loss-of-consortium claims, I would also uphold the judgment below. It has long been accepted as Ohio law that loss-of-consortium claims are derivative claims, and thus a defense to the underlying action generally constitutes a defense to the loss-of-consortium claims. See Schiltz v. Meyer (1971),
The majority appears to go out of its way to create new law in order to preserve appellants’ loss-of-consortium claims contrary to the undeniable trаdition that such claims are inextricably linked to the underlying tort action.
In this state and elsewhere, the right to consortium is a right that grows out of marriage, is incident to marriage, and cannot exist without marriage. Haas v. Lewis (1982),
The reasoning of the majority appears to be untenable in the law and unworkable in the market place. Those who operate recreational or other activities where there exists the potential for injury will be forced to demand the signature of the non-participating spouse on a release of his or her loss-of-consortium claims before the other spouse will be allowed to participate. This will place a heavy burden upon providers of such activities, and more importantly, one spouse’s freedom to participate will be subject to the veto of the
IV
Finally, I am compelled to address the portion of the majority opinion that invites the trial court to consider whether “children may maintain * * * an action for loss of ‘parental consortium.’ ” Contrary to the assertions of the majority, there can be no debate whether such a cause of action is recognized in this state. At least two courts of appeals in this state have recognized that this court’s ruling in Kane v. Quigley (1964),
V
For all the foregoing reasons, I would affirm the court of appeals on all the propositions of law advanced by the appellants, with the lone exception that I would reverse the trial court’s grant of summary judgment on the issue of appellees’ alleged willful and wanton conduct.
. Contrary to the view of the majority, only a minority of states have adopted the approach it urges here. A broad majority of states views loss-of-consortium claims as derivative and not independent. See McCoy v. Colonial Baking Co., Inc. (Miss.1990),
. It must be noted that one of the cases cited by the majority, Barker v. Colorado Region-Sports Car Club of America, Inc. (1974),
. The majority’s citation of Leach v. Newport Yellow Cab, Inc. (S.D.Ohio 1985),