          [Cite as Parker v. L.T., 2017-Ohio-7674.]
                  IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO



JEWELL PARKER,                                        :   APPEAL NO. C-160642
                                                          TRIAL NO. A-1405855
        Plaintiff-Appellant,                          :

  vs.                                                 :      O P I N I O N.

L.T.,                                                 :

  and                                                 :

W.T.,                                                 :

        Defendants-Appellees,                         :

  and                                                 :

CINCINNATI          PRIMITIVE         BAPTIST :
CHURCH,

        Defendant.                                    :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: September 20, 2017


Dennis C. Mahoney and J. David Bender, for Plaintiff-Appellant,

John R. Wykoff, for Defendants-Appellees.
                    OHIO FIRST DISTRICT COURT OF APPEALS



D ETERS , Judge.

       {¶1}    Plaintiff-appellant Jewell Parker appeals the judgment of the

Hamilton County Court of Common Pleas granting summary judgment in favor of

defendants-appellees W.T., a minor, and his father, L.T., on her claims for personal

injuries. We affirm the trial court’s grant of summary judgment to L.T., but reverse

its grant of summary judgment to W.T.

                                       Background

       {¶2}   On October 21, 2012, Parker, an 80-year-old woman, attended the

morning service at the Cincinnati Primitive Baptist Church at the invitation of her

elderly friend, Kenneth Mobley. Parker had attended church services with Mobley

several times prior to that day. Each time the church had held a morning service,

taken a lunch break, and then held an afternoon service. After eating lunch, Parker

and Mobley walked out the side door of the church building and into the parking lot

towards the playground, which was located at the back of the parking lot.

       {¶3}   The parking lot contained four rows of parking spaces. One row of

parking spaces was located next to the building. The second and third rows of

parking spaces abutted each other. A fourth row of parking spaces was located at the

back of the lot near a grassy area. The parking lot contained space for vehicles to

drive between the first and second rows and between the third and fourth rows in the

parking lot. The playground was located at the edge of the parking lot beyond the

fourth row of parking spaces. It is undisputed that the parking lot was full of

vehicles.

       {¶4}   Mobley stated that he is “hard of hearing” and has a bad hip, which

causes him difficulty in walking, so he rarely leaves the church building between

services. Parker stated that she had visited the church before, but that she had never



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been outside during the break between services. Mobley and Parker stated that they

were unaware that some of the boys in the congregation played football in the church

parking lot between the morning and afternoon church services.

       {¶5}   Both Parker and Mobley stated that as they were walking from the

second to the third row of vehicles in the parking lot, they heard what sounded like a

herd of cattle or horses running.       Once they had walked past the third row of

vehicles, they stopped and looked before crossing. Mobley saw some boys standing

at a distance from them in a crowd in the open area between the third and fourth

rows of vehicles. Parker remembered seeing a crowd of people, but stated that she

could not see what they were doing. Both Mobley and Parker described hearing the

same sound like a herd of cattle or horses running. Parker stated that after she heard

this noise, W.T. ran into her and knocked her down.

       {¶6}    Mobley stated that he did not realize that the boys were playing

football until he saw them throw the ball and W.T. jump up to catch it, which was

just before W.T. came down and hit Parker on the right side. Parker couldn’t recall

exactly where she fell, but she stated it was nearer to the third row of parked vehicles.

Both Mobley and Parker described the incident as happening “in the blink of an eye.”

Parker stated that she broke her hip.

       {¶7}   W.T., a 15-year-old boy, stated that he was playing football with at

least ten people in the church parking lot between the third and fourth rows of

vehicles, because the grassy area at the back of the parking lot was really muddy and

a lot of little kids liked to play there. W.T. stated that he did not see Parker before

the football was thrown. He ran the length of seven parking spaces to catch a pass,

and when he turned around, he started back pedaling about two parking spaces,

“screamed for the ball, and then out of nowhere bumped into someone he didn’t see.”



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                       OHIO FIRST DISTRICT COURT OF APPEALS



When he turned around, he saw Parker on the ground. Mobley was standing to her

right side. W.T. apologized to Parker and tried to help her to her feet, but she

couldn’t stand.

       {¶8}    W.T. stated that the boys had been playing football 20-30 minutes

before Parker fell and that they played in the parking lot most Sundays. Prior to the

incident, the boys had stopped the football game to permit a woman to enter her

vehicle and leave the parking lot.

       {¶9}       Parker brought negligence claims against the church, W.T., and his

father, L.T. Parker alleged that L.T. had violated his duty as both W.T.’s parent and

as a deacon at the church to supervise the boys playing football in the parking lot.

W.T. and L.T. moved for summary judgment, arguing that they owed no duty to

Parker. They further argued that “assuming a duty was owed and breached, that

Parker’s claims would be barred by the affirmative defenses of primary assumption

of the risk doctrine, also known as the open and obvious doctrine.”

       {¶10}      Parker filed a memorandum opposing summary judgment. In the

memorandum, Parker stated that she was withdrawing her claim against L.T. in his

parental capacity.     Parker alleged, however, that fact issues precluded summary

judgment with respect to whether L.T., in his capacity as a church deacon, had failed

to supervise the boys playing football in the parking lot. Parker further argued that

fact issues precluded summary judgment in favor of W.T. and that the assumption-

of-the-risk and the open-and-obvious doctrines did not bar her claims.

       {¶11}      The trial court granted summary judgment to W.T. and L.T. on the

basis that they owed no duty to Parker, but the trial court expressly stated it was not

determining whether the open-and-obvious doctrine applied to bar Parker’s claims.

Parker settled her negligence claim with the church.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                  Summary Judgment

       {¶12} In a single assignment of error, Parker argues that the trial court erred

by granting summary judgment to W.T. and L.T.

       {¶13} We review the trial court’s entry of summary judgment de novo, using

the same standard the trial court employed. Doe v. Shaffer, 90 Ohio St.3d 388, 390,

738 N.E.2d 1243 (2000). Summary judgment is appropriate where there is no

genuine issue of material fact, the moving party is entitled to judgment as a matter of

law, and the evidence demonstrates that reasonable minds can come to but one

conclusion, and that conclusion is adverse to the party opposing the motion. Comer

v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.

       {¶14} We first address the trial court’s grant of summary judgment to L.T.

In her brief, Parker admits that she withdrew her negligent-supervision claim against

L.T. that was based on his parental duty to supervise W.T.         Parker settled her

negligence claim against the church. Parker does not separately argue in her brief

why the trial court erred in granting summary judgment to L.T. We decline, in the

absence of any argument or citation to legal authority, to address her challenge to the

trial court’s grant of summary judgment to L.T. We therefore, overrule the part of

Parker’s assignment of error challenging the trial court’s grant of summary judgment

to L.T. See App.R. 16(A)(7); State v. Perez, 1st Dist. Hamilton Nos. C-040363, C-

040364 and C-040365, 2005-Ohio-1326, ¶ 23.

       {¶15} We turn now to the trial court’s determination that W.T. was entitled

to summary judgment on Parker’s negligence claim. Parker alleged that W.T. was

negligent because he had failed to exercise reasonable care to avoid physically

harming her while playing football in the church parking lot.




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       {¶16} To establish actionable negligence, Parker must show the existence of

a duty, a breach of the duty, and injury proximately resulting therefrom. Strother v.

Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). Parker argues the trial

court erred as a matter of law in granting summary judgment when the evidence

established that W.T. owed her a duty of reasonable care.

       {¶17} “Duty, as used in Ohio tort law, refers to the relationship between the

plaintiff and the defendant from which arises an obligation of the defendant to

exercise due care toward the plaintiff.” Commerce & Industry, Ins. Co. v. Toledo, 45

Ohio St.3d 96, 543 N.E.2d 1188 (1989). “The minimum standard of care expected

under any circumstances is to exercise that degree of care and caution that an

ordinary careful and prudent person would exercise under similar circumstances.”

Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229,

29 N.E.3d 921, ¶ 27.

       {¶18} Whether a duty exists depends on the foreseeability of the injury.

Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).

       As a society we expect people to exercise reasonable precautions

       against the risks that a reasonably prudent person would anticipate.

       Conversely, we do not expect people to guard against risks that the

       reasonable person would not foresee. The foreseeability of the risk of

       harm is not affected by the magnitude, severity, or exact probability of

       a particular harm, but instead by the question of whether some risk of

       harm would be foreseeable to the reasonably prudent person.

       Accordingly, the existence and scope of a person’s legal duty is

       determined by the reasonably foreseeable, general risk of harm that is

       involved.



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Cromer at ¶ 24. The existence of a duty is a question of law for the court to

determine. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).

       {¶19} Parker contends that her injury was foreseeable, and that W.T. owed

her a duty of reasonable care to avoid physically harming her while he played football

in the church parking lot. We agree.

       {¶20} “[A]ctors engaging in conduct that creates a risk to others have a duty

to exercise reasonable care to avoid causing physical harm.” Restatement of the Law

3d, Torts, Section 7 (2010); see Philadelphia Fire & Marine Ins. Co. v. Hirschfield

Printing Co., 73 Ohio App. 27, 29, 53 N.E.2d 827 (1943) (holding that defendant

owed a duty to the public to exercise reasonable care so that harm might not result to

others). Here, W.T. owed Parker a duty of reasonable care because it is foreseeable

that running and playing football in a crowded church parking lot would create a risk

of harm to other individuals who were not participating in the football game and

would be walking through the parking lot. See Gedeon v. East Ohio Gas Co., 128

Ohio St. 335, 338, 190 N.E. 924 (1934) (holding a defendant owes a duty “when the

injured person comes within the circle of those to whom injury may be reasonably

anticipated”). W.T.’s running backward in a parking lot full of cars while not looking

created the risk of a collision with Parker. W.T. moreover, recognized the risk of

harm to others. He stated that he was aware that the church congregation was taking

a break between services. When asked why the boys played football in the parking

lot, he stated consideration was given to little kids playing in the grassy area. Thus,

we agree with Parker that the trial court erred by concluding that it was not

reasonably foreseeable that W.T. would cause injury to her and therefore, granting

summary judgment to W.T. on the basis that he owed her no duty of care.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21}   Parker further argues that W.T. was not entitled to summary

judgment on the basis that the affirmative defenses of the assumption-of-the-risk

and the open-and-obvious doctrines barred her claims.

       {¶22}   As a general matter, whether someone assumes a risk or whether a

danger is open and obvious are two separate inquiries under the law. The doctrine of

primary assumption of the risk is based on the theory that the defendant owes the

plaintiff no duty as a matter of law. See Gallagher v. Cleveland Browns Football Co.,

74 Ohio St.3d 427, 432, 659 N.E.2d 1232 (1996). The doctrine applies when a

plaintiff knows of a risk and decides to proceed into the perilous situation despite

that danger. Whether to apply the affirmative defense of assumption of the risk

presents an issue of law for the court to determine. Id. at 435. In moving for

summary judgment, W.T. argued that Parker had proceeded into the “field of football

at her own risk.” We disagree. Parker was neither a participant nor a spectator of the

football game. She could not be expected to foresee or accept the attendant risk of

injury from the football game when she was merely walking through the parking lot.

See Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990). Thus, we

agree with Parker that W.T. was not entitled to summary judgment on this basis.

       {¶23} Likewise, W.T. was not entitled to summary judgment on the basis

that the open-and-obvious doctrine precluded any duty he owed to Parker. W.T.

argued that he owed no duty to Parker because she had an unobstructed view of the

boys, making the football game “open and obvious.” The Ohio Supreme Court has

limited the open-and-obvious doctrine to persons who have a property interest in the

premises. Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 597 N.E.2d 504

(1992); Eschmann v. RLA Invests., Inc., 1st Dist. Hamilton No. C-150576, 2016-




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Ohio-3331, ¶ 6. W.T. had no property interest in the premises. Thus, W.T. was not

entitled to summary judgment on this basis.

       {¶24} Because we conclude that the trial court erred in granting summary

judgment to W.T. on the basis that he owed no duty to Parker, we need not

determine whether W.T. breached his duty of care, or whether his actions were the

proximate cause of Parker’s injuries. The assignment of error is sustained as to W.T.

We, therefore, affirm the grant of summary judgment as to L.T., reverse the trial

court’s grant of summary judgment to W.T., and remand this cause for further

proceedings in accordance with this opinion and the law.

                   Judgment affirmed in part, reversed in part, and cause remanded.

MOCK, P.J., and MILLER, J., concur.


Please note:
       The court has recorded its own entry this date.




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