Aaron S. Morgan, Plaintiff-Appellant, v. Kent State University et al., Defendants-Appellees.
No. 15AP-685
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 7, 2016
2016-Ohio-3303
DORRIAN, P.J.; BROWN and SADLER, JJ., concur.
(Ct. of Cl. No. 2014-00639) (REGULAR CALENDAR)
On brief: Michael DeWine, Attorney General, and Lee Ann Rabe, for appellee Kent State University.
APPEAL from the Court of Claims of Ohio
DECISION
DORRIAN, P.J.
{1} Plaintiff-appellant, Aaron S. Morgan, appeals the June 19, 2015 judgment of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee Kent State University (“KSU“). For the following reasons, we affirm the judgment of the Court of Claims.
I. Facts and Procedural History
{2} During the period of time relevant to the present matter, appellant was a student at KSU‘s Stark campus. In the fall semester 2012, appellant enrolled in a beginning karate class taught by Edward C. Malecki, an employee of KSU. Appellant had no experience in martial arts before enrolling in the beginning karate class, but had a general idea of what karate entailed through movies and television.
{4} As part of the class, students were required to spar with one another and with the instructor using only “light physical contact.” (Malecki Dep. at 52.) According to Malecki, there was no bodily or facial contact permitted either by the students or the instructor. During the sparring, students practiced guarding themselves using their hands in defensive postures in front of their body. It was not uncommon for students to make mistakes, such as dropping their guard by lowering their hands. When a student would drop his or her guard, the instructor would stop the sparring procedure until the student resumed guarding himself or herself.
{5} On October 24, 2012, while appellant was sparring with Malecki, he lost his balance and dropped his guard. When appellant dropped his guard, Malecki punched appellant in the face. According to appellant, Malecki‘s palm struck him on the nose. Malecki was not wearing padded gloves when he struck appellant. Appellant‘s nose immediately started bleeding. Malecki and a student employee helped to stop appellant‘s bleeding and then filled out an incident report. Appellant later sought medical care and was told that he suffered a nasal fracture.
{6} On July 15, 2014, appellant filed a complaint in the Court of Claims asserting claims for negligence and negligent hiring against KSU. On March 31, 2015, appellant filed a motion for partial summary judgment and attorney fees and expenses pursuant to
{7} On June 19, 2015, the Court of Claims filed an entry granting KSU‘s motion for summary judgment and denying appellant‘s motion for attorney fees and expenses.
{8} Appellant appeals and assigns the following four assignments of error for our review:
- The trial court erred in holding that the broad and general language contained in the Waiver, which neither Kent State University nor Aaron Morgan intended to apply to academic or physical education classes, effectively released the Appellee from liability resulting from the Appellant being struck in the face by his instructor during a class the Appellant subsequently enrolled in through the University.
- The trial court erred in holding that the Appellant‘s claim against Kent State University is barred by the doctrine of primary assumption of risk.
- The trial court erred in failing to grant Plaintiff-Appellant‘s Motion for Partial Summary Judgment, as to the issue of liability.
- The trial court erred by its failure to rule on Plaintiff-Appellant‘s Motion for Attorney Fees and Expenses pursuant to
Civ.R. 37(C) .
For ease of discussion, we consider appellant‘s assignments of error out of order.
III. Discussion
A. Second Assignment of Error
{9} In his second assignment of error, appellant asserts the Court of Claims erred in holding that his claim for negligence was barred by the doctrine of primary assumption of the risk.
{10} “[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285 (1981), citing Feldman v. Howard, 10 Ohio St.2d 189, 193 (1967). “Under the law of negligence, a defendant‘s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff‘s position.” Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 11, citing Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645 (1992).
{12} “Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Morgan at ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, ¶ 12 (10th Dist.). See Marchetti v. Kalish, 53 Ohio St.3d 95 (1990), paragraph one of the syllabus. Underlying the doctrine is the rationale that certain risks are so inherent in some activities that they cannot be eliminated, and therefore a person participating in such activities tacitly consents to the risks involved. Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.1987). “The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that ‘(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.‘” Morgan at ¶ 13, quoting Santho at ¶ 12.
{13} ” ‘To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.’ ” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, quoting Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19 (6th Dist.), citing Westray v. Imperial Pools & Supplies, Inc., 133 Ohio App.3d 426, 432 (6th Dist.1999). “Where the risk at issue is not inherent, then a negligence standard applies.” Id.
{14} The Supreme Court of Ohio has explained the applicability of the doctrine of primary assumption of the risk and the rationale underlying it as follows:
Acts that would give rise to tort liability for negligence on a city street or in a backyard are not negligent in the context of a
game where such an act is foreseeable and within the rules. For instance, a golfer who hits practice balls in his backyard and inadvertently hits a neighbor who is gardening or mowing the lawn next door must be held to a different standard than a golfer whose drive hits another golfer on a golf course. A principal difference is the golfer‘s duty to the one he hit. The neighbor, unlike the other golfer or spectator on the course, has not agreed to participate or watch and cannot be expected to foresee or accept the attendant risk of injury. Conversely, the spectator or participant must accept from a participant conduct associated with that sport. Thus a player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct. Were we to find such a duty between co-participants in a sport, we might well stifle the rewards of athletic competition.
Thompson v. McNeill, 53 Ohio St.3d 102, 104 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711. See also Crace at ¶ 14.
{15} When considering a defense of primary assumption of the risk, “the injured plaintiff‘s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Crace at ¶ 16, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 9, citing Ramos v. Countryside, 137 Ill.App.3d 1028, 1031-32 (1985). Thus, even persons ” ‘entirely ignorant of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game. The law simply deems certain risks as accepted by plaintiff regardless of actual knowledge or consent.’ ” (Footnotes omitted.) Gentry at ¶ 12, quoting Susan M. Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002). In accordance with these principles, this court has stated that ” ‘primary assumption of [the] risk requires an examination of the activity itself and not plaintiff‘s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.’ ” Morgan at ¶ 15, quoting Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307 (June 12, 1997).
{16} “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff
{17} In Crace, this court considered the applicability of the doctrine of primary assumption of the risk. In that case, Angela Crace, a student cheerleader at KSU, asserted a claim for negligence against KSU after she was severely injured during a cheerleading practice. On the day Crace was injured, the KSU cheerleading coach assigned members of the cheerleading squad, including Crace, to various positions in a maneuver known as the “Big K.” The Big K was essentially a human pyramid that consisted of a base, a middle layer/base, and flyers; the pyramid was two and one-half people high. Spotters were positioned on the ground to catch the flyers when they dismounted the pyramid.
{18} Crace and several other members of the KSU cheerleading squad had successfully performed the Big K during the previous season. However, many other members of the team had neither performed nor seen the maneuver. On the day Crace was injured, the coach assigned Crace to the position of flyer. The first two attempts at the mount failed, resulting in Crace falling from about 15 feet in the air. However, the front spotter caught Crace when she fell. Before the third attempt, the coach substituted as the rear spotter a team member who had neither seen nor participated in the Big K. On the third attempt, the substitute rear spotter failed to catch Crace as she fell from approximately 15 feet in the air. As a result, Crace‘s fall was unbroken, and she fell to the ground, resulting in immediate paraplegia.
{19} At issue in Crace was whether the doctrine of primary assumption of the risk applied to relieve KSU of liability based on the conduct of the cheerleading coach. Crace argued that the doctrine applied only to co-participants in a recreational activity.
A holding to the contrary would likely shift the focus of the analysis away from the activity and its inherent risks. The analysis would then unnecessarily focus upon the extent of the defendant‘s involvement and the defendant‘s classification as a participant, nonparticipant, coach, instructor, official, operator, owner, sponsor, provider, or otherwise. Injured participants would frame their allegations sufficiently to cast a liability net just beyond the reach of Marchetti and Thompson, with no regard for the inherent risks of the activity.
{20} We thus rejected Crace‘s argument that primary assumption of the risk could not relieve a university of liability for negligence based on the conduct of one of its coaches in a cheerleading practice. Having so concluded, we next determined based on the evidence presented at trial that suffering an injury due to a fall is an inherent risk of cheerleading. Therefore, we found that the doctrine of primary assumption of the risk applied, and, as such, KSU owed no duty to protect Crace from the inherent risk of injury related to a fall while participating in cheerleading, absent a demonstration of recklessness or intentional misconduct.
{21} Here, appellant contends that the trial court erred in applying the doctrine of primary assumption of the risk because “the facts of this case manifestly establish that the injury sustained by [appellant] on October 24, 2012 was * * * not a ‘foreseeable’ consequence of participating in the subject Beginning Karate class.” (Emphasis omitted.) (Appellant‘s Brief at 28-29.) Appellant cites the following circumstances in support of his contention: (1) all of the students in the class were “novices in martial arts“; (2) “the students were specifically assured by the instructor that there would be no bodily contact during the class and that facial contact was explicitly prohibited“; (3) “the instructor was required to wear padded, protective gloves as a further safeguard against injury“; and (4) “when a student dropped his or her guard, the instructor was required to stop the session until the student raised his or her guard.” (Appellant‘s Brief at 28.)
{23} Therefore, we decline to consider the same and limit our analysis to whether the doctrine of primary assumption of the risk applies to appellant‘s claim for negligence. Thus, we consider whether karate is an inherently dangerous activity from which the risks cannot be eliminated. Morgan at ¶ 15; Crace at ¶ 16.
{24} The Court of Claims found that “[t]here is no question that the martial arts class was a sports or recreational activity with an inherent risk of injury.” (Jgmt. Entry at 5.) Furthermore, the Court of Claims found that “[p]hysical contact between participants during karate sparring is simply a foreseeable hazard of the activity.” (Jgmt. Entry at 5.) Other courts have found that participating in martial arts involves inherent risk. Levine v. Gross, 123 Ohio App.3d 326, 330 (9th Dist.1997) (finding that the plaintiff understood the “kind of risk posed by sparring and grappling in the course of a karate lesson“); Barakat v. Pordash, 164 Ohio App.3d 328, 2005-Ohio-6095, ¶ 12 (8th Dist.) (finding in the context of martial arts that “being injured in the course of a hold or maneuver is a risk that is a foreseeable and customary risk of the sport“).
{25} Karate is a recreational activity involving physical contact in the form of punches, kicks, and other techniques as detailed in the course outline for the beginning karate course in which appellant was enrolled. Thus, by its very nature, karate, as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated. Indeed, the course outline notes that a “mouthguard; sparring gloves; athletic supporter w/cup” are required. (KSU Mot. for Summ. Jgmt., Ex. D.) As danger is inherent in karate, it is common knowledge that such danger exists, and appellant‘s injury occurred during the course of participating in the inherently dangerous activity, we find that the doctrine of primary assumption of the risk applies in this case. Morgan at ¶ 13, citing Santho at ¶ 12. Under the doctrine of primary assumption of the risk, KSU owed no duty to protect appellant from the inherent risks of the activity. Id. at ¶ 27. As a result, appellant is precluded from establishing a prima facie case of negligence, and the trial
{26} Accordingly, appellant‘s second assignment of error is overruled.
B. First and Third Assignments of Error
{27} In his first assignment of error, appellant asserts that the Court of Claims erred by holding that the waiver signed by appellant released KSU from liability for the incident on October 24, 2012. In his third assignment of error, appellant asserts that the Court of Claims erred by failing to grant appellant‘s motion for partial summary judgment on the issue of liability. Having overruled appellant‘s second assignment of error, appellant‘s first and third assignments of error are rendered moot.
C. Fourth Assignment of Error
{28} In his fourth assignment of error, appellant asserts that the Court of Claims erred by failing to rule on his motion for attorney fees and expenses pursuant to
{29}
Expenses on failure to admit. If a party, after being served with a request for admission under Rule 36, fails to admit the genuineness of any documents or the truth of any matter as requested, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney‘s fees. Unless the request had been held objectionable under Rule 36(A) or the court finds that there was good reason for the failure to admit or that the admission sought was of no substantial importance, the order shall be made.
{31} “The determination of whether to award expenses and the amount thereof, pursuant to
{32} Here, the Court of Claims found that there was either a good reason for the failure to admit or that the admissions were of no substantial importance. Appellant fails to demonstrate that the Court of Claims abused its discretion by denying the motion. Accordingly, we overrule appellant‘s fourth assignment of error.
IV. Conclusion
{33} Having overruled appellant‘s second and fourth assignments of error and rendered moot appellant‘s first and third assignments of error, we affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
BROWN and SADLER, JJ., concur.