[Cite as Lemaster v. Grove City Christian School, 2017-Ohio-8459.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Hayden Lemaster et al.,                             :

                Plaintiffs-Appellants,              :                     No. 16AP-587
                                                                     (C.P.C. No. 15CVC-07-6435)
v.                                                  :
                                                               (ACCELERATED CALENDAR)
Grove City Christian School et al.,                 :

                Defendants-Appellees.               :

                                         D E C I S I O N

                                   Rendered on November 7, 2017


                On brief: Brian Harter, for appellants. Argued: Brian
                Harter.

                On brief: Weston Hurd LLP, W. Charles Curley and
                Kaitlin L. Madigan, for appellees. Argued: W. Charles
                Curley.

                  APPEAL from the Franklin County Court of Common Pleas

TYACK, P.J.
        {¶ 1} Hayden Lemaster ("Hayden"), Heidi and Brian Lemaster, plaintiffs-
appellants, appeal from the judgment of the Franklin County Court of Common Pleas in
which the court granted the motions for summary judgment filed by Grove City Christian
School ("GCCS") and Sean P. Swank ("Swank"), defendants-appellees.
        {¶ 2} In April 2009, Hayden was a sixth-grade student at GCCS. Swank was the
head football coach for the middle school football team. Heidi and Brian Lemaster are
Hayden's parents. On April 9, 2009, Hayden was participating in an out-of-season
football conditioning program overseen by Swank. After the main conditioning program
was completed, Hayden was performing a squat lift, which involves squatting down while
a barbell loaded with weights rests on the shoulders. Hayden weighed approximately 97
pounds. Although the actual weight on the barbell was disputed, the trial court accepted
No. 16AP-587                                                                                 2

the amount indicated in the complaint—200 pounds total—for purposes of summary
judgment. It was also somewhat disputed whether Swank instructed the athletes to "max
out"—an attempt to lift their personal maximum weight one time—or the athletes
themselves decided on their own to attempt to max out after the main conditioning
program was over. Swank denies he told them to max out and claims the athletes decided
themselves to do so. Hayden did not indicate whose idea it was in his testimony, but
another athlete who was present indicated in a sworn statement that Swank instructed
them to max out. For purposes of a summary judgment motion, the recollection of the
other student should have been accepted.
       {¶ 3} Swank and other students "spotted" Hayden by standing near him to lift the
weights off of Hayden if he could not complete the lift. Hayden completed the squat lift
unassisted. However, Hayden testified that when the weight came off his back, he felt
pain in his spine, felt dizzy, and suffered pain in his legs. Hayden informed Swank that he
had hurt his back and Swank told Hayden he did not have to complete a run afterward.
However, Hayden decided to run. Hayden then participated in some after-school
activities at the school with his family. Hayden later discovered that he had compression
fractures of his spine, apparently as a result of the 200 pounds being loaded on his
shoulders.
       {¶ 4} On July 28, 2015, appellants filed a complaint alleging Swank was liable
because he had Hayden perform the squat lift, and GCCS was liable for Swank's conduct
pursuant to respondeat superior. Hayden's parents alleged claims for loss of consortium.
On June 2, 2016, appellees filed two motions for summary judgment, one relating to
Hayden's claims and one relating to the claims of Hayden's parents. On July 22, 2016, the
trial court granted summary judgment to appellees on all claims raised by all parties.
Appellants appeal the trial court's decision asserting the following assignments of error:
               [I.] The Trial Court erred in granting summary judgment
               since there is clearly genuine issues of material fact that Coach
               Swank's conduct was a reckless disregard for the safety of
               others when he intentionally instructed members of the 7th
               grade football team, including Plaintiff-Appellant, Hayden
               Lemaster, a 98 pound, 6th grade student with zero weight
               lifting experience, to "max out" on the squat lift and/or
               attempt a squat lift with an excessive amount of weight on the
               first day of training in the weight room when he knew or had
No. 16AP-587                                                                            3

               reason to know facts which would lead a reasonable man to
               realize that his conduct created an unreasonable risk of
               physical harm.

               [II.] The Trial Court erred in failing to restrict the application
               of Marchetti v. Kalish, 1990, 53 Ohio St.3rd 95, since serious
               injuries such as compression fractures to the spine should not
               be an assumed or accepted risk likely to occur to 6th and 7th
               graders learning the basics of weight training at the very
               beginning of their competitive athletic career.

      {¶ 5} Appellants argue in their first assignment of error that the trial court erred
when it granted summary judgment because there were genuine issues of material fact
remaining as to whether Swank's conduct showed a reckless disregard for the safety of
others when he intentionally instructed members of the football team to max out on the
squat lift and/or attempt a squat lift with an excessive amount of weight when he knew or
had reason to know facts that would lead a reasonable person to realize that his conduct
created an unreasonable risk of physical harm.
      {¶ 6} Summary judgment is appropriate when the moving party demonstrates
that: (1) there is no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) reasonable minds can come to but one conclusion
when viewing the evidence most strongly in favor of the nonmoving party, and that
conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc., 127 Ohio
St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-
Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for summary
judgment is de novo. Hudson at ¶ 29. This means that an appellate court conducts an
independent review without deference to the trial court's determination. Zurz v. 770 W.
Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v.
Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
      {¶ 7} When seeking summary judgment on the grounds that the nonmoving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
No. 16AP-587                                                                              4

conclusory allegation that the nonmoving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims.
Id. If the moving party meets its burden, then the nonmoving party has a reciprocal
burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R.
56(E); Dresher at 293. If the nonmoving party does not so respond, summary judgment,
if appropriate, shall be entered against the nonmoving party. Id.
       {¶ 8} In the present case, appellants argue there remain genuine issues of
material fact that create a question as to whether Swank's actions were reckless under
Marchetti v. Kalish, 53 Ohio St.3d 95, 100 (1990). "Under the doctrine of primary
assumption of the risk, a plaintiff voluntarily engaged in a recreational activity assumes
the inherent risks of that activity and cannot recover for injuries sustained while engaging
in that activity unless the defendant acted recklessly or intentionally in causing the
injuries." Wolfe v. AmeriCheer, Inc., 10th Dist. No. 11AP-550, 2012-Ohio-941, ¶ 14, citing
Marchetti at syllabus. Here, appellants contend only that Swank acted recklessly.
       {¶ 9} Ordinarily the question of whether conduct was reckless is properly left for a
jury. Wolfe at ¶ 17, citing Matkovich v. Penn Cent. Transp. Co., 69 Ohio St.2d 210, 214
(1982). "Nevertheless, the [Supreme Court] has not hesitated to find summary judgment
appropriate where the facts, when construed in favor of the nonmoving party, fail to rise
to the level of reckless conduct." Kurz v. Great Parks of Hamilton Cty., 1st Dist. No. C-
150520, 2016-Ohio-2909, ¶ 26, citing O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-
Ohio-2574, ¶ 92.
       {¶ 10} "Recklessness is a high standard." Lovegrove v. Stapleton, 2d Dist. No.
2014-CA-96, 2015-Ohio-1669, ¶ 34, citing Rankin v. Cuyahoga Cty. Dept. of Children &
Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, ¶ 37. " 'While an act to be reckless
must be intended by the actor, the actor does not intend to cause the harm which results
from it.' " Thompson v. McNeill, 53 Ohio St.3d 102, 105 (1990), abrogated on other
grounds, Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶ 31, quoting 2
Restatement of the Law 2d, Torts, Section 500, Comment f (1965). "Reckless conduct is
characterized by the conscious disregard of or indifference to a known or obvious risk of
No. 16AP-587                                                                                 5

harm to another that is unreasonable under the circumstances and is substantially greater
than negligent conduct." Anderson at ¶ 34, citing Thompson at 104-05.
       {¶ 11} " '[T]he difference between reckless misconduct and conduct involving only
such a quantum of risk as is necessary to make it negligent is a difference in the degree of
risk, but this difference of degree is so marked as to amount substantially to a difference
in kind.' " Taylor v. Mathys, 3d Dist. No. 14-04-32, 2005-Ohio-150, ¶ 15, quoting 2
Restatement of the Law 2d, Torts, Section 500, Comment g (1965). For an act to be
reckless, " 'the risk must itself be an unreasonable one under the circumstances.' "
(Emphasis omitted.) Thompson at 105, quoting 2 Restatement of the Law 2d, Torts,
Section 500, Comment g (1965). " 'What constitutes an unreasonable risk under the
circumstances of a sporting event must be delineated with reference to the way the
particular game is played, i.e., the rules and customs that shape the participants' ideas of
foreseeable conduct in the course of a game.' " Wolfe at ¶ 19, quoting Thompson at 105.
"Therefore, in order for a participant's conduct to be reckless, it must be both outside the
rules of the activity and create an unreasonable risk of harm." Taylor at ¶ 17.
       {¶ 12} Here, appellants claim Swank acted recklessly when he either observed that
some team members were attempting to max out on the squat lift and immediately joined
in by spotting the lifters and encouraging them to make the lift, or when he instructed the
boys to max out. Appellants contend that Swank was actively involved and placed a
dangerous amount of weight on Hayden's neck, placing enormous pressure on his young
spine, when Hayden had no experience in lifting weights. Appellants point out that
Swank agreed in his deposition that kids who engage in heavy weightlifting are at risk of
injuring their growing bones, muscles, and joints. Swank also claimed to be an expert in
weight lifting.
       {¶ 13} In support of their claims, appellants cite Sicard v. Univ. of Dayton, 104
Ohio App.3d 27 (2d Dist.1995). In Sicard, the plaintiff was a college basketball player
performing a bench press and was injured when two spotters failed to prevent the weight
from striking the plaintiff, and a third spotter failed to spot him at all. The appellate court
found the trial court erred when it granted summary judgment to the defendants.
Appellants in the present case claim Sicard is analogous to the current case.
No. 16AP-587                                                                              6

       {¶ 14} Appellants also argue there was a genuine issue of material fact as to
whether Hayden used proper technique.         Appellants point out that appellees' claim
Hayden used the proper technique, while Swank testified that, if Hayden was injured, he
must have been performing the lift improperly by placing the bar on his neck instead of
his shoulders. The trial court found Swank's conduct was not reckless because he
instructed Hayden on the proper technique. Appellants also contend that Swank allowing
approximately 200 pounds of weight on the bar was dangerous and reckless given
Hayden's age, weight, and experience.
       {¶ 15} Appellants further point out they submitted the affidavit of Charles
Gresham, a strength and conditioning coach, who averred that any coach who allows a
sixth or seventh grader to max out is reckless and creates a substantial increase in harm to
the kids.
       {¶ 16} After a review of the evidence in the present case, we find the trial court
erred when it found appellants failed to raise a genuine issue of material fact. Appellants
have showed that Swank who claimed to be an expert as to weight lifting exhibited a
conscious disregard of or indifference to a known or obvious risk of harm to Hayden that
was unreasonable under the circumstances and was substantially greater than negligent
conduct.
       {¶ 17} Hayden weighed less than 100 pounds. He was loaded with a weight over
twice that amount. He was not experienced in weight training. He was only twelve-years
old. He could rely on his coach as a person in authority and a person who claimed
expertise in weight lifting to exercise good judgment in the exercises and weights his
coach was supervising. The fact that Hayden suffered a compression fracture of his spine
is a strong indication that too much weight was loaded on his neck and shoulders.
       {¶ 18} A jury could reasonably find that loading 200 pounds on a sixth grader's
back and neck resulting in a compression fracture was reckless.
       {¶ 19} We sustain the first assignment of error.
       {¶ 20} Our finding as to the first assignment of error moots the second assignment
of error. We note, however, that this is not an assumption of the risk case. A twelve or
thirteen-year-old sixth grader is only half-way to full brain development. His frontal lobes
No. 16AP-587                                                                             7

are no where near full development and he cannot be expected to fully appreciate the
danger his coach is asking him to experience.
       {¶ 21} In short, the first assignment of error is sustained, rendering the second
assignment of error moot. The summary judgment to the benefit of coach Swank is
reversed. The summary judgment for the benefit of Grove City Christian School based on
respondeat superior is also reversed as a result. We remand the case to the trial court for
further appropriate proceedings.
                                                       Judgment reversed and remanded
                                                                for further proceedings.

                              HORTON, J., concurs.
                         BROWN, J., concurs in judgment only.

BROWN, J., concurring in judgment only.

       {¶ 22} For the following reasons, I respectfully concur in judgment only. The
majority cites the affidavit of Charles Gresham as evidence of reckless conduct by Sean P.
Swank; however, the trial court declined to consider the affidavit due to appellants'
untimely disclosure of Gresham as a witness, pursuant to Loc.R. 43.04 of the Court of
Common Pleas of Franklin County, General Division. This court has approved of reading
Loc.R. 43 in conjunction with Civ.R. 56(E). See Foster v. Sullivan, 10th Dist. No. 13AP-
876, 2014-Ohio-2909, ¶ 19-21, and Nu-Trend Homes v. Law Offices of DeLibera, Lyons &
Bibbo, 10th Dist. No. 01AP-1137, 2003-Ohio-1633, ¶ 71-73 (the trial court was authorized
under Loc.R. 43 to exclude doctor's affidavit from summary judgment evidence when the
witness was not timely disclosed). Without consideration of Gresham's affidavit, I would
conclude appellants failed to raise a genuine issue of material fact as to whether Swank
exhibited a conscious disregard of or indifference to a known or obvious risk of harm to
Hayden Lemaster that was unreasonable under the circumstances and was substantially
greater than negligent conduct.
       {¶ 23} However, Loc.R. 43.04 allows for overlooking a failure to properly disclose a
witness when good cause exists and justice so demands. In the present case, the trial court
did not mention whether good cause existed or justice demanded that it permit the
untimely disclosure of Gresham. The trial court simply indicated that the disclosure was
untimely, unlike in Foster, in which we found no error in excluding the affidavit of an
No. 16AP-587                                                                            8

untimely disclosed witness when the trial court specifically noted the good-cause
exception in its judgment entry and chose not to apply it. See Foster at ¶ 21. Without any
reference to the exception in Loc.R. 43.04, we have no way to know whether the trial court
considered it. For these reasons, I would find the trial court's exclusion of Gresham's
affidavit was improper. Therefore, I respectfully concur in judgment only.
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