[Cite as Wagner v. Kretz, 2017-Ohio-8517.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




JOHN E. WAGNER, ET AL.,

        PLAINTIFFS-APPELLANTS,                           CASE NO. 1-17-24

        v.

DANIEL KRETZ, ET AL.,                                    OPINION

        DEFENDANTS-APPELLEES.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV2016 0278

                                     Judgment Affirmed

                         Date of Decision: November 13, 2017




APPEARANCES:

        Gordon D. Evans for Appellants, John & Linda Wagner

        J. Alan Smith for Appellee, City of Lima

        Christopher W. Carrigg for Appellee, Daniel Kretz
Case No. 1-17-24


ZIMMERMAN, J.

       {¶1} Plaintiff-Appellants John and Linda Wagner (collectively referred to as

“Appellants”) appeal the Allen County Common Pleas Court’s Judgment Entry

granting summary judgment in favor of Defendant-Appellees Daniel Kretz

(“Kretz”) and the City of Lima (collectively referred to as “Appellees”) and

dismissing Appellants’ Complaint. On appeal, Appellants assert that the trial court

erred by determining a grant of summary judgment was appropriate under the

Doctrine of Primary Assumption of Risk. For the reasons that follow, we affirm the

ruling of the Allen County Common Pleas Court.

                               Factual Background

      {¶2} On May 26, 2014, Appellant John Wagner (“John”) was riding on a

parade float representing the Allen County Patriots, as part of a local Memorial Day

Parade. The parade float represented a military funeral. The float was constructed

upon an aluminum flatbed trailer, and featured a fake casket draped in the American

flag; a wrought iron tripod with a flower arrangement; and six wooden folding chairs

upon which “mourners” could sit. John Wagner was responsible for the float’s

design and provided the wrought iron tripod, the flower arrangement, and the six

(6) wooden folding chairs used by parade participants to sit upon while riding on

the float. The casket and wrought iron tripod were strapped down to the trailer bed,

while the wooden folding chairs were not secured to the trailer bed.


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       {¶3} The float was towed by a pick-up truck operated by Kretz, who, when

after the parade concluded, commenced to return the float to the starting location of

the parade on North Elizabeth Street in Lima. Appellants, and other members of

the Allen County Patriots, remained on the float for the return trip. While driving

on North Elizabeth Street, Kretz’s truck hit a four-foot long by six-foot wide defect

in the road, resulting in those on the float falling off their chairs and/or the float.

John’s fall (from the float) resulted in serious injuries, wherein he incurred

approximately $200,000 in medical bills.

                               Procedural Background

       {¶4} On May 17, 2016, Appellants filed a complaint for injuries against

Kretz, Tom Ahl Dealership, the City of Lima, Dominion East Ohio Gas Company,

Jim’s Excavating, and John Does 1-10, in the Allen County Court of Common Pleas.

Specifically, Appellants alleged that Kretz negligently operated the truck pulling the

parade float; that Kretz was acting within the course and scope of his employment

with Tom Ahl Dealership, making them liable under the doctrine of Agency by

Estoppel; that the City of Lima, Ohio created the defect/pot hole on the road in

question and/or failed to properly maintain the road which made the road defective

and/or dangerous for use; that Dominion East Ohio Gas Company created the pot

hole/defect on the road in question and failed to repair it; that Jim’s Excavating

created the pot hole/defect in question, and failed to repair it; and finally, that Linda


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Wagner, because of the accident on the parade float, had lost the comfort, care,

services, and consortium of her husband, John. (Doc. No. 1). All defendants filed

an answer to Appellants’ Complaint. One of the named defendants, Dominion East

Ohio Gas Company, filed a cross-claim against the City of Lima. In turn, the City

of Lima filed a cross-claim against Dominion East Ohio Gas Company, Kretz, and

Jim’s Excavating. (Doc. Nos. 8, 9, 10, 11, 13, 16, 17, 18, 19, 20).

       {¶5} On January 23, 2017, Dominion East Ohio Gas Company voluntarily

dismissed its cross-claim against the City of Lima. (Doc. No. 58). On January 30,

2017, the City of Lima voluntarily dismissed its cross-claim against Dominion East

Ohio Gas Company. (Doc. No. 59). Further, and also on January 30, 2017,

Appellants voluntarily dismissed Dominion East Ohio Gas Company and Jim’s

Excavating as defendants. (Doc. Nos. 60, 61). On February 1, 2017, Dominion

East Ohio Gas Company voluntarily dismissed its cross-claim against Kretz. (Doc.

No. 62).

       {¶6} On April 3, 2017, Tom Ahl Dealership and the City of Lima filed

motions for summary judgment with briefs in support in the trial court. (Doc. Nos.

76-78). Kretz joined Tom Ahl Dealership, in part, in its motion for summary

judgment. (Doc. No. 79). On April 13, 2017, Appellants filed a memorandum

contra to the City of Lima’s Motion for summary judgment, to which the City of




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Lima replied to on April 25, 2017. (Doc. No. 81). On April 27, 2017, Appellants

voluntarily dismissed Tom Ahl Dealership as a party defendant.

       {¶7} On May 19, 2017, the Allen County Common Pleas Court issued its

decision pursuant to Civ.R. 56, granting summary judgment to the two remaining

defendants, City of Lima and Kretz. (Doc. No. 94). Specifically, the trial court

found that Appellants’ claim was barred under the doctrine of primary assumption

of the risk, finding that the Appellants participated in an inherently dangerous

activity when riding on a parade float. (Id. at 7). From this entry Appellants timely

appeal and present the following assignment of error for our review:

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED BY DETERMINING A GRANT
       OF SUMMARY JUDGMENT WAS APPROPRIATE UNDER
       THE DOCTRINE OF PRIMARY ASSUMPTION OF RISK.

                       Appellant’s First Assignment of Error

       {¶8} In their sole assignment of error, Appellants assert that the trial court

erred by determining that John Wagner primarily assumed the risk of injury by

participating on a parade float. Specifically, Appellants argue that the trial court

incorrectly ruled that riding on a parade float in a Memorial Day Parade was an

inherently dangerous activity. For the reasons that follow, we disagree.




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                                Standard of Review

       {¶9} An appellate court reviews a trial court’s decision on a motion for

summary judgment de novo. Hancock Fed. Credit Union v. Coppus, 2015-Ohio-

5312, 54 N.E.3d 806, ¶ 15 (3rd Dist.). Trial courts may grant a motion for summary

judgment when “(1) no genuine issue as to any material fact remains to be litigated,

(2) the moving party is entitled to judgment as a matter of law, and (3) it appears

from the evidence that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment

is made.” Hamilton v. Hector, 117 Ohio App.3d 816, 819, 691 N.E.2d 745 (3rd

Dist.1997). Additionally, “‘upon appeal from summary judgment, the reviewing

court should look at the record in the light most favorable to the party opposing the

motion.’” Id. quoting Campbell v. Hosp. Motor Inns, Inc., 24 Ohio St.3d 54, 58,

493 N.E.2d 239 (1986).

                 Negligence and Primary Assumption of the Risk

       {¶10} “A successful negligence claim requires the plaintiff to prove that the

defendant owed a duty.” Cave v. Burt, 4th Dist. Ross No. 03CA2730, 2004-Ohio-

3442, ¶ 14. The existence of a duty is a question of law for the court to decide. Id.

       {¶11} However, “[p]rimary assumption of the risk is applied to cases where

there is no duty owed by the defendant to the plaintiff.” Booth v. Walls, 3rd Dist.

Henry No. 7-12-23, 2013-Ohio-3190, ¶ 48. “Whether to apply primary assumption


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of the risk is a matter of law for the court to decide.” Id. Since “‘a successful

primary assumption of risk defense means that the duty element of negligence is not

established as a matter of law, the defense prevents the plaintiff from even making

a prima facie case.” Id. quoting Wolfe v. Bison Baseball, Inc., 10th Dist. Franklin

No. 09AP-905, 2010-Ohio-1390, ¶ 21 quoting Gallagher v. Cleveland Browns

Football Co., 74 Ohio St.3d 427, 432, 1996-Ohio-320, 659 N.E.2d 1232 (1996).

       {¶12} “In order to succeed on a primary assumption of the risk defense, it

must be shown that (1) the danger is ordinary to the activity; (2) there is common

knowledge that the danger exists; and (3) that the injury occurs as result of the

danger during the course of the activity.” Id. at ¶ 49 citing Santho v. Boy Scouts of

Am., 168 Ohio App.3d 27, 2006-Ohio-3656, 857 N.E.2d 1255, ¶ 12 (10th Dist.).

Courts have adopted this doctrine on the basis of “the notice that certain risks are so

inherent in some activities that they cannot be eliminated.” Id. quoting Collier v.

Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist.1987).

Finally, “primary assumption of the risk has nothing to do with [an Appellant’s]

conduct.” Cremeans v. Willmar Henderson Mfg. Co., 3rd Dist. Union No. 14-85-5,

1989 WL 98426, * 1 quoting Mima v. City of Akron, 31 Ohio App.3d 124, 125, 508

N.E.2d 974 (9th Dist.1986).

       {¶13} While Appellants attempt to frame the issue before the Court as

“whether the activity of participating in a Memorial Day parade is inherently


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dangerous,” we find that the proper issue before us is whether sitting on an

unsecured wooden chair on a moving aluminum flatbed trailer is an inherently

dangerous activity to which primary assumption of the risk may apply.

                                Danger is Ordinary to the Activity

         {¶14} Under the first prong of the primary assumption of risk defense, we

must determine whether or not the danger is ordinary to the activity. Similar to the

facts in the case before us, in Lawrence v. Toledo Terminal R. Co., the Plaintiff sat

upon an inverted bucket which was located in the left rear corner of a trailer (being

towed by a truck) containing a load of furniture. Lawrence v. Toledo Terminal R.

Co., 154 Ohio St. 335, 336, 96 N.E.2d 7 (1950). As the truck and trailer approached

a set of railroad tracks, the Plaintiff noticed an oncoming train and stood up. Id.

From this position the Plaintiff either jumped or was thrown from the trailer in the

path of the train, and his legs were crushed.1 Id.

         {¶15} Akin to the facts set forth in Lawrence, John Wagner was sitting on an

unsecured wooden folding chair on a flatbed trailer being towed by a truck that

could “easily overturn and also be likely to slide about on the floor of the trailer.2”

Id. at 339. The logical nexus of a chair overturning and/or sliding about a moving




1
  While we are aware that the Plaintiff’s injury in Lawrence occurred from a standing position, the Ohio
Supreme Court did analyze the inherent danger in sitting upon an unsecured apparatus on a moving trailer.
2
  While the Lawrence decision preceded tort reform in Ohio, we find that the type of activity and the analysis
regarding the danger that could result from participation in said activity (sitting on an unsecured bucket that
had the potential to slide and overturn) pertinent to the facts at hand.

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flatbed trailer presents the potential for a fall, which is exactly what happened (to

John) in this case. Accordingly, we find that a risk of falling is a danger ordinary to

the activity of sitting on an unsecured chair while riding on an aluminum flatbed

trailer that is being towed by a truck. Thus, we find the first prong of the primary

assumption of the risk test is satisfied herein.

                       Common Knowledge that the Danger Exists

           {¶16} In analyzing the second prong of the primary assumption of the risk

test, we must determine whether it is common knowledge that a potential for danger

exists when sitting on an unsecured wooden chair when riding on a towed flat-bed

trailer.     John Wagner’s testimony reveals his awareness of the potential that

unsecured items on the moving trailer could tip or fall over, as evidenced by this

exchange:

           Q. (Cross-Examination by Attorney Fitzgerald) And, in fact,
           you brought the spray of flowers; correct?

           A.   (John Wagner) Yes.

           Q. And you said that you had to tie that flower arrangement
           down on the float?

           A. No. Someone else tied down the wrought iron stand that it
           was on.

           Q.   That, that the flowers were on?

           A.   Yes, right.

           Q.   Well why would they do that?

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       A.   Attorney Evans: Objection, speculation.

       Q.   No.

       A.   Attorney Evans: You can answer if you know.

       Q.   Why do you think they did that? I apologize, go ahead.

       A.   Why do I think so?

       Q.   Yes.

       A.   They were probably afraid it would tip over.

(John E. Wagner Dep., 11/09/2016 Tr. at 243).

       {¶17} Furthermore, it is common knowledge that a flatbed trailer is neither

designed nor built to transport people, only secured objects. Thus, a person is put

in danger when sitting on an unsecured chair on a flatbed trailer that is being towed.

Accordingly, the second prong of the primary assumption of the risk test is satisfied.

                      Injury Occurs as a Result of the Danger
                          During the Course of the Activity

       {¶18} The third part to the primary assumption of the risk test involves the

question of whether the claimed injury occurred during the course of engaging in

the participated activity. In this case there is no dispute that John Wagner’s injuries

occurred as a result of being thrown off the trailer, and such fall took place during

the course of the activity in which he participated.




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       {¶19} While we are sympathetic to Mr. Wagner, we find that the three prongs

of the primary assumption of the risk test have been satisfied in this case.

       {¶20} Accordingly, we hold that the act of sitting on an unsecured wooden

folding chair on an aluminum flatbed trailer being towed by a pickup truck is an

inherently dangerous activity in which Appellant John Wagner assumed the risk of

injury. And, under the defense of primary assumption of the risk in this case, the

Appellees owed no duty to John Wagner. Therefore, as a matter of law, Appellees

are not liable for the injuries incurred by John Wagner resulting from his fall from

the flatbed trailer.

       {¶21} Thus, the summary judgment decision of the trial court was proper.

Appellants sole assignment of error is therefore overruled.

       {¶22} Having found no error prejudicial to the Appellants herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

PRESTON, P.J. and SHAW, J., concur.

/jlr




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