HORVATH et al., Appellants, v. ISH et al., Appellees.
No. 25442
Court of Appeals of Ohio, Ninth District, Summit County
Decided May 11, 2011
194 Ohio App.3d 8, 2011-Ohio-2239
William M. Kovatch, for appellees.
{¶ 1} Appellants, Angel and Eugene Horvath, appeal the summary judgment ruling granted in favor of appellees, David Ish and his parents, Annette and David Ish, by the Summit County Court of Common Pleas. We reverse.
BACKGROUND
{¶ 2} On March 6, 2007, Angel Horvath was skiing at Boston Mills Ski Resort with her husband, Eugene Horvath. Fourteen-year-old David Ish was also at Boston Mills, snowboarding with his brother and cousins. While Angel was skiing down one of the hills at the resort, David cut across the hill from the snowboarding area. In doing so, he collided with Angel from behind. Angel suffered serious, permanent injuries as a result of the collision.
{¶ 3} The Horvaths filed a complaint against David and his parents, alleging that David had acted negligently, carelessly, recklessly, willfully, and wantonly, causing him to collide with Angel. The Horvaths also named Boston Mills Ski Resort, Inc., and Peak Resorts, Inc., in a subsequent amended complaint. Boston Mills and Peak Resorts were dismissed after the trial court granted their motion for judgment on the pleadings.
{¶ 5} The Horvaths have appealed the trial court‘s decision, assigning two errors for our review.
STANDARD OF REVIEW
{¶ 6} This court reviews a trial court‘s ruling on a motion for summary judgment de novo and applies the same standard as the trial court. Chuparkoff v. Farmers Ins. of Columbus, Inc., 9th Dist. No. 22712, 2006-Ohio-3281, 2006 WL 1751219, at ¶ 12. Pursuant to
{¶ 7} The moving party has the burden of demonstrating that no genuine issues of material fact exist. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. The burden then shifts to the nonmoving party to provide evidence showing that a genuine issue of material fact does exist. Id. at 293. Pursuant to
ASSIGNMENTS OF ERROR
Assignment of Error I
The Trial Court erred in granting summary judgment in favor of Appellees Ish when it concluded that Revised Code Chapter 4169 did not apply to causes of action between skiers.
{¶ 8} In their first assignment of error, the Horvaths argue that
{¶ 9} We begin by noting that even though David was snowboarding, he fits within the definition of “skier” provided by the statute. See
{¶ 10}
A skier shall have the following responsibilities:
(1) To know the range of the skier‘s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier‘s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;
(2) To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall.
In addition,
{¶ 11} No Ohio courts have interpreted the above statutes as creating a statutory cause of action between skiers. Nor have any courts in this state held that the responsibilities enumerated in
{¶ 12} Here, the trial court found that based on the language of the statute,
{¶ 13}
{¶ 14} In the trial court, the parties’ primary focus was whether
{¶ 15} Because the trial court erred when it concluded that
Assignment of Error II
The Trial Court erred in granting summary judgment in favor of Appellees Ish because there is a genuine issue of material fact as to whether the conduct of Appellee David Ish was reckless when the evidence is construed most strongly in favor of Appellants.
{¶ 16} Upon concluding that
{¶ 17} As outlined in our discussion of the first assignment of error, because
{¶ 18} Assuming without deciding that the Horvaths may recover only if David was acting in a reckless manner, a question of fact exists as to whether David was reckless. Eugene Horvath and Tyler Ish both witnessed the collision that resulted in Angel‘s injuries; however, each described a slightly different version of the events during their depositions. Moreover, pursuant to the summary-judgment standard, the facts must be construed in favor of the nonmovant, i.e., the Horvaths. See Tompkins, 75 Ohio St.3d at 448, 663 N.E.2d 639. For these reasons, summary judgment may not be appropriate regardless of the trial court‘s findings concerning negligence per se.
{¶ 19} The trial court erroneously granted summary judgment in favor of the appellees, David Ish and his parents, Annette and David Ish. The judgment of the Summit County Court of Common Pleas is reversed, and the matter is remanded for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
DICKINSON, P.J., concurs.
CARR, J., dissents.
CARR, Judge, dissenting.
{¶ 20} I respectfully dissent because I disagree with the majority‘s conclusion that
{¶ 21} The Ohio General Assembly enacted
{¶ 22} This intent is evident in
{¶ 23} Reading the language of
{¶ 24} Moreover,
{¶ 25} Therefore, I would overrule the first assignment of error. I would also overrule the second assignment of error because the Horvaths have failed to oppose the motion for summary judgment with any evidence that the collision, and Horvath‘s resulting injuries, were the result of any reckless or intentional