BELINDA KERR, ET AL. v. LOGAN ELM SCHOOL DISTRICT, OHIO
Case No. 14CA6
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
12-24-14
2014-Ohio-5838
APPEARANCES:
COUNSEL FOR APPELLANTS: Terry V. Hummel, 115 West Main Street, Suite 100, Columbus, Ohio 43215
COUNSEL FOR APPELLEE: Matthew John Markling, Patrick Vrobel, and Sean Koran, McGown & Markling Co., L.P.A., 1894 North Cleveland-Massillon Road, Akron, Ohio 44333
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 12-24-14
{¶ 1} This an appeal by Belinda and James Kerr, plaintiffs below and appellants herein, from a Pickaway County Common Pleas Court judgment that granted the motion of Logan Elm School District, defendant below and appellee herein, for judgmеnt on the pleadings on the Kerrs’ personal-injury suit for injuries Belinda Kerr suffered while a spectator at a softball game on school property.
{¶ 2} The Kerrs assign the following error for review:
“THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT‘S MOTION FOR JUDGMENT ON THE PLEADINGS.”
FACTS
{¶ 3} On December 31, 2013, the Kerrs filed a complaint against the Logan Elm School District and alleged that (1) Belinda Kerr was a spectator at her daughter‘s softball game on property the school district owned and operated, and (2) during the game, a windstorm blew the roof off a dugout and struck Kerr, resulting in injuries to her head and chest. According to the Kerrs, the school district negligently, willfully, wantonly and recklessly disregarded public safety by (1) constructing the dugout in an unsafe and unsuitable manner for public use, (2) failing to regularly and properly inspect the dugout, (3) failing to maintain and repair the dugout, (4) failing to warn of the unsafe condition of the dugout, and (5) failing to restrict the use of the field during unsafe conditions or until repairs were made. Belinda Kerr asserted that she suffered her injuries as a direct and proximate result of the school district‘s conduct, and that her husband, James Kerr, suffered a loss of consortium. The Kerrs sought compensatory damages, punitive damages, attorney fees, interest and costs.
LAW AND ANALYSIS
STANDARD OF REVIEW
{¶ 5} In their sole assignment of error, the Kerrs assert that the trial court erred by granting the school district‘s motion for judgment on the pleadings.
{¶ 6} Under
{¶ 7} The trial court granted the school district‘s motion for judgment on the pleadings based on its holding that the district is immune from the Kerrs’ personal-injury claims by virtue of recreational-user immunity statute. Under
{¶ 8} To determine whether the school district is entitled to the recreational-user immunity to shield it from the Kerrs’ claims, we first note that “[p]remises” is defined in
{¶ 10} Therefore, recreational-user immunity may apply to the Kerrs’ personal-injury claims because the school district owns the premises upon which the alleged injuries occurred and Kerr was engaged in what would generally be regarded as recreational use when she watched her daughter play softball. Nevertheless, as the Kerrs argued, both in the trial court in their memorandum in opposition to the school district‘s motion for judgment on the pleadings and in
{¶ 11} The school district does not deny that a person is not a recreational user when the person pays a fee to enter its property to watch a softball game. See Pauley, 137 Ohio St.3d 212, 2013-Ohio-4541, 998 N.E.2d 1083, ¶ 16 (for the recreational-user immunity of
{¶ 12} In so holding and stating, we believe that the view of the trial court and the appellee do not comply with the concept of notice pleading. Because “Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29; Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008-Ohio-7042, 903
{¶ 13} In the case sub judice, after we construe the facts and all reasonable inferences of their complaint in the Kerrs’ favor, we believe that a set of facts could exist that could entitle them to relief for their alleged injuries that would render inapplicable the school district‘s affirmative defense of the
{¶ 14} Therefore, we believe that the trial court erred by granting the
CONCLUSION
{¶ 15} Therefore, having overruled the Kerrs’ assignment of error, we hereby reverse the trial court‘s judgment and remand the cause for further proceedings consistent with this opinion.
JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
{¶ 16} I respectfully dissent from the principal opinion to reverse the judgment of the trial court.
{¶ 17} The Logan Elm Local School District is entitled to judgment on the pleadings pursuant to Ohio‘s Recreational User Statute.
{¶ 18} The Recreational User Statute,
(A) No owner, lessee, or occupant of premises:
(1) Owes any duty to a recreational user to kеep the premises safe for entry or use;
(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;
(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user.
{¶ 19} No question exists that the softball field at issue and its dugout is owned by the Logаn Elm Local School District and that the property constitutes premises for the purposes of the recreational user statute. The issue then before this Court is whether Belinda Kerr as a spectator, not her daughter who was participating in the softball game, is a recreational user.
{¶ 20}
(B) “Recreational user” means a person to whom permission has bеen granted, without the payment of a fee or consideration to the owner, lessee, or occupant of premises, other than a fee or consideration paid to the state or any agency of the
state, or a lease payment or fee paid to the owner of privately owned lands, to enter upon premises to hunt, fish, trap, camр, hike, or swim, or to operate a snowmobile, all-purpose vehicle, or four-wheel drive motor vehicle, or to engage in other recreational pursuits.
{¶ 21} The Kerrs argued to the trial court in their memorandum in opposition to the Logan Elm Local School District‘s motion for judgment on the pleadings (hereinafter referred to as “memorandum“) that they could ultimаtely establish that “she [Belinda Kerr] paid a fee or that a fee was paid on her behalf for her and her daughter to use the softball field in question.” The Kerrs further state in their appellate brief, “Evidence that Plaintiff did pay a fee to participate at the softball game is not in any way inconsistent with the allegations contained in Plaintiff‘s Complaint.” Belinda Kerr alleges in her complaint that she was a spectator at a softball game in which her daughter was participating. Kerr never asserted in her memorandum or in the complaint that she paid a fee to enter the premises as a spectator to watch her daughter participate. Kerr seems to confuse the issue that she was a participant versus a spectator in her memorandum and in her appellate brief.
{¶ 22} Softball league participation fees do not necessarily constitute a “fee or consideration to enter upon ‘premises‘.” “The mere fact that a fee was paid to a sponsor does not mean that a fee was paid to the municipality ‘to enter upon “premises” to engage in rеcreational pursuits.’ ” Boggs v. Bowling Green, 6th Dist. Wood No. WD–03–008, 2003–Ohio–4093, ¶ 7, quoting Moss v. Dept. of Natural Resources, 62 Ohio St.2d 138, 404 N.E.2d 742 (1980), at paragraph two of the syllabus.
{¶ 23} In Opheim v. Lorain, 94 Ohio App.3d 344, 640 N.E.2d 897 (9th Dist.1994), our colleagues in the Ninth District held that the Recreational User Statute applied where spectators
Several courts have held that spectators at athletic events arе recreational users of property. LiCause v. Canton (1989), 42 Ohio St.3d 109, 537 N.E.2d 1298; Rankey v. Arlington Bd. of Edn. (1992), 78 Ohio App.3d 112, 116-117, 603 N.E.2d 1151, 1154; Dowdell, supra. Even though Rachel could be considered a recreational user of the park because she was a spectator at the baseball game, she argues that, because the Little League paid a fee to use the baseball field, she was not a recreational user under
R.C. 1533.18(B) . We disagree.“A person is not a ‘recreational user’ * * * if he pays a fee * * * to enter upon ‘premises’ to engage in recreational pursuits.” (Emphasis sic.) Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138, 16 O.O.3d 161, 404 N.E.2d 742, paragraph two of the syllabus. In this case, Rachel did not pay a fee to enter the premises. Any member of the public could enter the park, free of charge, to enjoy the baseball game. The fact that “fees were charged to certain leagues * * * does not change the fact that individual ‘persons’ were never charged for admission to the park.” Dowdell, supra. See, also, Miller v. Dayton (1989), 42 Ohio St.3d 113, 115-116, 537 N.E.2d 1294, 1297
{¶ 24} Even construing the allegations along with all reasonable inferences to be drawn therefrom in the light most favorable to the appellants, a set of facts does not exist that could
{¶ 25} Accordingly, I respectfully dissent. I would affirm the judgment of the trial court.2
It is hereby ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Court of Common Plеas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J.: Concurs in Judgment & Opinion
Hoover, J.: Dissents with Dissenting Opinion
For the Court
BY: _______________________________
Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.