Tallarigo v. DrydenTallarigo v. Dryden
Joyce V. Kimbler, 50 South Main Street, Suite 502, Akron, Ohio 44308, for defendants-appellees
O P I N I O N
{¶ 1} Plaintiffs-appellants, John and Ginger Tallarigo, on behalf of their minor son, Dontae Tallarigo, appeal from the Clermont County Court of Common Pleas decision granting summary judgment to Grant Dryden, after Dontae was injured while riding his dirt bike. For the reasons outlined below, we affirm.
{¶ 2} On August 10, 2010, Grant, Ginger‘s younger brother and Dontae‘s uncle, picked up Dontae from the Tallarigos in order to take him to his grandparents’ house for the
{¶ 3} Upon arriving at his grandparents’ house that day, Dontae played on the computer and went for a swim in the pool with Grant, his uncle, as well as Grant‘s girlfriend and her sister. After he was done swimming, Dontae decided to ride his dirt bike. According to John Tallarigo, Dontae‘s father, the dirt bike could reach speeds of approximately 30 m.p.h. As a result, Dontae was trained to wear safety equipment whenever he rode his dirt bike, including a helmet, gloves, riding pants, and boots. As Dontae testified, he was to wear boots whenever he rode his dirt bike because “you could rip a toe off.” However, Dontae did not have any boots available to him that day because he had outgrown his only pair and did not have any others available in his size.
{¶ 4} Shortly after getting his dirt bike out, Dontae began riding around the backyard and into the woods when the bike ran out of gas and stalled. Noticing the dirt bike had stalled, Grant, who had been supervising Dontae from the backyard pool area, helped Dontae fill up the gas tank and restart the bike. Once the bike was restarted, Dontae continued to ride the dirt bike around the backyard and into the woods. However, when Dontae did not emerge from the woods for several minutes, Grant got on his four-wheeler and proceeded towards the main entrance into the wooded area to check on his young nephew. As Grant testified, “I thought he stalled again. I figured, go help him try to restart it.”
{¶ 5} After starting his four-wheeler, Grant then approached the main entrance to the
A: Yes. I went onto that dirt trail probably back about, I don‘t know, a couple, like 30 yards to the back around the fire pit, and I usually ramp out on this root, and –
Q: You usually what on this root?
A: I usually ramp over this root, because you get in the air and it‘s cool.
Q: Slow down. Tell me that. You ramp on this root because why?
A: Because you like get in the air and it‘s cool.
Q: And what do you mean you get in the air? You mean you kind of –
A: Yeah, you go off the ground.
Q: Did you do that on this occasion, did you go off the ground when you were coming out?
A: Yes. And by the time I hit the ground, I didn‘t have enough time to stop, so I hit his quad.
{¶ 6} According to Dontae, he was travelling approximately 20 m.p.h. at the time of the collision. As a result of the collision, Dontae lost the top portion of his left big toe. Dontae‘s grandparents were not at home when the collision occurred.
{¶ 7} The Tallarigos subsequently filed a complaint on behalf of their son Dontae against Grant, Dontae‘s uncle, as well as the Drydens, Dontae‘s grandparents. As part of their original complaint, the Tallarigos alleged Grant was negligent in his operation of the four-wheeler, and that the Drydens were negligent in their maintenance of their property. The Tallarigos subsequently filed an amended complaint adding claims alleging recklessness. The parties then both filed motions for summary judgment. After holding a hearing on the
{¶ 8} THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS-APPELLANTS IN GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANTS-APPELLEES AND DENYING THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFFS-APPELLANTS.
{¶ 9} In their single assignment of error, the Tallarigos argue the trial court erred by granting summary judgment to Grant.1 In support of this claim, the Tallarigos assert that “Grant did not take any action that would constitute ordinary care. In fact, his actions constitute recklessness.” We disagree.
{¶ 10} Summary judgment is a procedural device used to terminate litigation when there are no issues in a case requiring a formal trial. Roberts v. RMB Ents., Inc., 197 Ohio App.3d 435, 2011-Ohio-6223, ¶ 6 (12th Dist.). On appeal, a trial court‘s decision granting summary judgment is reviewed de novo. Moody v. Pilot Travel Ctrs., L.L.C., 12th Dist. Butler No. CA2011-07-141, 2012-Ohio-1478, ¶ 7, citing Burgess v. Tackas, 125 Ohio App.3d 294, 296 (8th Dist.1998). In applying the de novo standard, the appellate court is required to “us[e] the same standard that the trial court should have used, and * * * examine the evidence to determine whether as a matter of law no genuine issues exist for trial.” Bravard v. Curran, 155 Ohio App.3d 713, 2004-Ohio-181, ¶ 9 (12th Dist.), quoting Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383 (8th Dist.1997).
{¶ 11} Pursuant to
{¶ 12} To recover on a claim for negligence, one of the claims alleged by the Tallarigos, the plaintiff must prove (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, and (3) the breach of the duty proximately caused the plaintiff‘s injury. Gentry v. Collins, 12th Dist. Warren No. CA2012-06-048, 2013-Ohio-63, ¶ 13, citing Wellman v. E. Ohio Gas Co., 160 Ohio St. 103, 108-109 (1953). However, the effect of raising primary assumption of the risk as a defense, if successful, “means that the duty element of negligence is not established as a matter of law, [preventing] the plaintiff from even making a prima facie case.” Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431-432 (1996). Primary assumption of the risk is a question of law. Parker v. Patrick, 12th Dist. Brown No. CA2011-12-027, 2012-Ohio-3312, ¶ 15.
{¶ 14} The Tallarigos do not dispute that Dontae was involved in a recreational activity while riding his dirt bike. See Shaner v. Smoot, 7th Dist. Carroll No. 712, 2001 WL 1243920, *2 (Oct. 12, 2001) (stating “[o]ff road motorcycling” is a recreational activity); see also Boyd v. Watson, 83 Ohio Misc.2d 88, 91 (C.P.1996) (no dispute that riding a “dirt bike” is a recreational activity). Nor do the Tallarigos dispute that it is foreseeable and customary risk to wreck and sustain an injury while riding a dirt bike. In fact, as the Tallarigos specifically state as part of their reply brief to this court, “[w]recking and sustaining some injury is a foreseeable risk of riding a dirt bike.”
{¶ 15} Instead, the Tallarigos argue that the primary assumption of risk is inapplicable
{¶ 16} We fail to see how these factors negate the otherwise foreseeable and customary risks Dontae faced while riding his dirt bike that afternoon. Contrary to the Tallarigos’ claim otherwise, we find it readily apparent that “[t]he sport of off-roading involves inherent risks that the participants in this recreational activity may be involved in inadvertent motor vehicle collisions[.]” Distefano v. Forester, 85 Cal.App.4th 1249, 1254 (2001). As noted above, Dontae had been riding dirt bikes since he was five years old and was well aware of the dangers associated with such activity. In fact, Dontae even admitted as part of his deposition testimony that colliding with other riders was a risk involved in riding his dirt bike. As Dontae testified, “there‘s always a chance that they could collide if someone‘s riding with them.”
{¶ 17} In so holding, we find this case distinguishable from our previous decision in Pope, where this court found the cause of the injury in that case – a collision with a pick-up truck on a public road – was not an inherent and foreseeable danger to the recreational activity of riding an all-terrain vehicle. Id., 2005-Ohio-4744 at ¶ 13-15. Unlike Pope, Dontae and Grant collided at the entrance of a wooded area that was specifically designed for use with dirt bikes and other all-terrain vehicles. In turn, just as the trial court found, we find this case more analogous to the litany of cases that have found skiing to include the ordinary risk
{¶ 18} The Tallarigos do not make any allegations that Grant acted intentionally in causing the collision, nor is there any evidence to support such a claim. Rather, the Tallarigos merely argue Grant was reckless when he entered into the wooded area without coming to a complete stop to determine if Dontae was approaching, thus leading to the collision. We find no merit to this claim.
{¶ 19} The showing of “recklessness is subject to a high standard.” Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, ¶ 37. As noted by the Ohio Supreme Court, “[r]eckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, paragraph four of the syllabus, adopting Restatement of the Law 2d, Torts, Section 500 (1965); see also Black‘s Law Dictionary 1298-1299 (8th Ed.2004) (explaining that reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a conscious disregard of or indifference to the risk, but the actor does not desire harm). “Recklessness, therefore, necessarily requires something more than mere negligence.” O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, ¶ 73-74.
{¶ 20} As noted above, when Dontae did not emerge from the woods for several
{¶ 21} After reviewing the record, we find the collision between Dontae and Grant was nothing more than an accident, thereby precluding the Tallarigos from recovering against Grant for Dontae‘s unfortunate injury. Nothing about these events indicates Grant acted in a reckless manner. Rather, just as the trial court found, Grant‘s conduct was, at best, negligent. However, as stated previously, “where individuals engage in recreational or sports activities,” such as the case here, “they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant‘s actions were either ‘reckless’ or ‘intentional.‘” Craycraft, 2004-Ohio-379 at ¶ 6, quoting Marchetti, 53 Ohio St.3d 95 at syllabus. Based on the facts and circumstances of this case, it simply cannot be said that Grant was acting in a reckless manner. The trial court, therefore, did not err in granting summary judgment to Grant as his actions were not reckless as a matter of law. Accordingly, the Tallarigos’ single assignment of error is overruled.
{¶ 22} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.