[Cite as Ellis v. Greater Cleveland R.T.A., 2014-Ohio-5549.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 101169



                               DAWN ELLIS, INDIVIDUALLY
                             AND AS ADMINISTRATOR OF THE
                          ESTATE OF CHARLES BERRY, DECEASED

                                                               PLAINTIFF-APPELLANT

                                                      vs.

                             GREATER CLEVELAND R.T.A., ET AL.

                                                               DEFENDANTS-APPELLEES




                                               JUDGMENT:
                                                AFFIRMED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-12-784493

        BEFORE: Celebrezze, P.J., Jones, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: December 18, 2014
ATTORNEY FOR APPELLANT

Michael D. Goldstein
Goldstein & Goldstein Co., L.P.A.
55 Public Square
Suite 2075
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

Sheryl King Benford
General Counsel, G.C.R.T.A.
Keith A. Ganther
Associate Counsel, G.C.R.T.A.
6th Floor, Root-McBride Building
1240 West 6th Street
Cleveland, Ohio 44113

Colleen A. Mountcastle
Joseph W. Pappalardo
Gallagher Sharp
Sixth Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Plaintiff-appellant Dawn Ellis (“appellant”) appeals the judgment of the common

pleas court granting summary judgment in favor of defendants-appellees, the Greater Cleveland

Regional Transit Authority (“GCRTA”) and Katherine Underwood. After a careful review of

the record and relevant case law, we affirm the trial court’s judgment.

                                     I. Statement of the Facts

       {¶2} At approximately 5:30 p.m. on July 21, 2011, Charles Berry arrived at the

Nighttown Restaurant to have dinner with his colleague Mark Ansboury. Ansboury left Berry

alone at Nighttown at approximately 8:00 p.m. Berry advised that he would walk or take the

train to get home. Berry frequently used the rapid transit as a means for transportation because

the East 120th Street station was less than a ten-minute walk from his house. According to the

bartender at Nighttown, Berry paid his check at approximately 11:30 p.m. Berry then made his

way to the GCRTA train station on East 120th Street.

       {¶3} That evening, Katherine Underwood was operating the Red Line train, traveling

westbound en route to the GCRTA’s Central Rail Headquarters. Underwood testified that as she

approached the East 120th Street train station, she was traveling at a rate of speed in the range of

15 to 25 m.p.h. Underwood testified that her headlights were on their “bright” setting, and there

were no obstructions preventing her from seeing anything at track level. Just moments before

arriving at the station, Underwood observed Berry “stumble onto the tracks” from an area

adjacent to the station platform. Underwood testified at her deposition that on seeing Berry, she

blew the train horn and applied the train’s emergency breaks. However, Underwood was unable

to stop the train before it struck and ultimately killed Berry.
       {¶4} GCRTA Transit Police Officers Todd Miller and Jason Anderson were the first to

respond to the scene of the accident. Officer Miller testified that when he arrived at the scene,

Underwood was lying on the floor of the train’s cabin in the fetal position, crying and in shock.

Berry’s body was discovered at the track level pinned between the platform and the train car.

Cleveland police officers also inspected the scene and concluded that Berry was likely attempting

to climb onto the platform at the time he was struck.

                                    II. Statement of the Case

       {¶5} Appellant, individually and as administrator of the estate of Charles Berry, deceased,

initiated this wrongful death case on June 7, 2012, by filing a complaint in the common pleas

court (Cuyahoga C.P. No. CV-12-784493). Therein, she set forth causes of action in wrongful

death, survivorship, and loss of consortium, alleging that GCRTA employee, defendant

Katherine Underwood, “negligently, carelessly, recklessly, willfully, and/or wantonly” operated

the rapid transit train that struck and killed Charles Berry on July 21, 2011. Appellant further

alleged GCRTA was liable for the negligence of its employee, Underwood, pursuant to R.C.

2744.02(B)(1)-(2). On July 18, 2013, appellant filed an amended complaint, restating all of the

original claims and including a claim against GCRTA for negligence in the design and

maintenance of its East 120th Street Red Line rapid transit station.

       {¶6} On November 14, 2013, motions for summary judgment were filed on behalf of

GCRTA and Underwood. On January 15, 2014, appellant filed briefs in opposition. On March

14, 2014, the trial court issued an opinion and entered judgment in favor of GCRTA and

Underwood, stating that the defendants were entitled to judgment as a matter of law on the issues

of negligence and wrongful death. The court determined that appellant could not establish a
prima facie case and dismissed all claims based on the defense of assumption of the risk and the

open and obvious doctrine.

       {¶7} Appellant brings this timely appeal, raising two assignments of error for review:

       I. The trial court erred in granting defendant-appellee GCRTA’s motion for
       summary judgment.

       II. The trial court erred in granting defendant-appellee Katherine Underwood’s
       motion for summary judgment.

                                      III. Law and Analysis

                                     A. Standard of Review

       {¶8} This court reviews the grant of summary judgment de novo.               Brown v. Cty.

Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (4th Dist.1993).

       Civ.R. 56(C) specifically provides that before summary judgment may be granted,
       it must be determined that: (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 viewing such evidence most strongly in favor of the party against
       whom the motion for summary judgment is made, that conclusion is adverse to
       that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

       {¶9} It is well established that the party seeking summary judgment bears the burden of

demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477 U.S.

317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mitseff v. Wheeler, 38 Ohio St.3d 112, 115,

526 N.E.2d 798 (1988). In Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996), the

Ohio Supreme Court modified and clarified the summary judgment standard as applied in Wing

v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). Under Dresher,

“the moving party bears the initial responsibility of informing the trial court of the basis for the

motion, and identifying those portions of the record which demonstrate the absence of a genuine
issue of fact on a material element of the nonmoving party’s claim.”              Id. at 296.   The

nonmoving party has a reciprocal burden of specificity and cannot rest on mere allegations or

denials in the pleadings. Id. at 293. The nonmoving party must set forth “specific facts” by the

means listed in Civ.R. 56(C) showing that a genuine issue for trial exists. Id.

                      B. Negligence and Primary Assumption of the Risk

       {¶10} In her first assignment of error, appellant argues that the trial court erred in

granting summary judgment in favor of GCRTA on the basis of primary assumption of the risk

and the open and obvious doctrine. Appellant contends that by applying these defenses to the

facts of this case, the trial court “essentially created a rule that eliminates any duty from train

operators to keep a lookout ahead as they approach stations.” We disagree.

       {¶11} In the case at hand, appellant alleged that GCRTA was liable for (1) the negligence

of its employee, Katherine Underwood, pursuant to R.C. 2744.02(B)(1)-(2), and (2) acted

negligently in the design and maintenance of its East 120th Street Red Line rapid transit station.

       {¶12} “[T]o establish a cause of action for negligence, the plaintiff must show (1) the

existence of a duty, (2) a breach of duty, and (3) an injury proximately resulted therefrom.”

Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 8.

“[P]rimary assumption of risk, when applicable, prevents a plaintiff from establishing the duty

element of a negligence case.” Stewart v. Urig, 176 Ohio App.3d 658, 2008-Ohio-3215, 893

N.E.2d 245, ¶ 25 (9th Dist.), quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio

St.3d 427, 433, 659 N.E.2d 1232 (1996). Thus, when the defense applies, it prevents the

plaintiff from making a prima facie case and functions as a complete bar to a negligence claim as

a matter of law. Gallagher at 432.
           {¶13} Under primary assumption of the risk, a person assumes the inherent risks of

certain activities and cannot recover for injuries in the absence of another’s reckless or

intentional conduct. Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, 924

N.E.2d 906, ¶ 13 (10th Dist.). Underlying this judicially created doctrine is the notion that

certain risks are so inherent in some activities that the risk of injury cannot be avoided. Id.

Thus, “[a] plaintiff who reasonably chooses to proceed in the face of a known risk is deemed to

have relieved defendant of any duty to protect him.” Siglow v. Smart, 43 Ohio App.3d 55, 59,

539 N.E.2d 636 (9th Dist.1987).

           {¶14} In order to succeed on a primary assumption of the risk defense, it must be shown

that the plaintiff: (1) had full knowledge of a condition; (2) such condition must be patently

dangerous to him or her; and (3) he or she must voluntarily expose himself or herself to the

hazard created. Briere v. Lathrop Co., 22 Ohio St.2d 166, 174-175, 258 N.E.2d 597 (1970).

“[P]rimary 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.” Crace

at ¶ 16.

           {¶15} In granting summary judgment in favor of GCRTA, the trial court relied on this

court’s opinion in Miljkovic v. Greater Cleveland Regional Transit Auth., 8th Dist. Cuyahoga

No. 77214, 2000 Ohio App. LEXIS 4780 (Oct. 12, 2000), for the proposition that crossing or

walking on a railroad track is an inherently dangerous activity subject to the primary assumption

of the risk defense.

           {¶16} In Miljkovic, this court upheld the entry of summary judgment in favor of GCRTA

based on the doctrine of primary assumption of the risk where the plaintiff was severely injured
by an oncoming train while attempting to cross train tracks. The court explained that the

defense applied because the plaintiff had full knowledge of the potential risks and consequences

of crossing the train tracks, but nevertheless voluntarily chose to cross the tracks instead of using

the nearby overpass. Id. at *14-16.

       {¶17} In contrast, appellant relies on Gladon v. Greater Cleveland Regional Transit

Auth., 75 Ohio St.3d 312, 662 N.E.2d 287 (1996), arguing that, regardless of Berry’s conduct,

Underwood owed a duty to use ordinary care to avoid injuring Berry from the point she observed

him on the tracks. See id. at 318 (“When a trespasser or licensee is discovered in a position of

peril, a landowner is required to use ordinary care to avoid injuring him”). However, Gladon

did not involve the application of the primary assumption of the risk defense and does not impact

our resolution of this case. In our view, Gladon stands for the proposition that, although a

landowner usually only owes a trespasser a duty to refrain from willful, wanton, or reckless

conduct that is likely to injure the trespasser, that duty enhances to a standard of ordinary care

once the trespasser is discovered. However, Gladon does not alter the longstanding precedent

that a defendant owes no duty of care to an individual who voluntarily engages in an inherently

dangerous activity, even if he is a discovered trespasser. Had the injured party in Gladon

entered the path of the train voluntarily (he was pushed or kicked onto the tracks), the primary

assumption of the risk defense likely would have been raised and upheld.

       {¶18} After a careful review of the record in its entirety, we find the trial court’s reliance

on Miljkovic to be appropriate. We are not persuaded by appellant’s position that the act of

standing on an active railroad track is not patently dangerous or that Berry was not aware of the

dangers of walking on the tracks. In our view, the act of crossing an active railroad track is an

inherently dangerous activity.        See Cave v. Burt, 4th Dist. Ross No. 03CA2730,
2004-Ohio- 3442, ¶ 19 (“Riding on a car’s trunk lid, like rope swinging, bungee bouncing, or

crossing railroad tracks, is inherently dangerous and the risks associated with it cannot be

eliminated”); see also Jones v. Norfolk S. Ry. Co., 8th Dist. Cuyahoga No. 84394,

2005-Ohio-879, ¶ 14 (“A moving train is not a subtle or hidden danger and its potential for

causing serious bodily injury or death to anyone in its path is readily apparent, even to young

children”).

       {¶19} Further, the record supports the trial court’s determination that Berry understood

the inherent danger of crossing the tracks but voluntarily exposed himself to the known risk at

the time of the accident. Berry was an educated 42-year-old man who was familiar with the

rapid transit trains, having used them as a mode of transportation prior to the accident.

Moreover, GCRTA maintenance worker Michael Lowrie and GCRTA Rail Transportation

Manager John Fedikovich testified that GCRTA has posted “do not trespass” and “no cross”

signs at the East 120th Street station and advises the public in a safety brochure located inside

each train to “stay clear and off the tracks at all times.” Despite these warnings, Berry had a

history of crossing the tracks, as evidenced by Sergeant Michael McGinty’s deposition testimony

that appellant told him Berry commonly took shortcuts to catch the train because he did not like

walking down Euclid Avenue.1

       {¶20} For these reasons, we find that the trial court did not err in granting summary

judgment in favor of GCRTA based on the doctrine of primary assumption of risk. Because the

doctrine of primary assumption of risk bars the appellant’s negligence claims against GCRTA, it




         In a journal entry dated February 10, 2014, the trial court found appellant’s statements to
       1


Sergeant McGinty to be admissible.
is not necessary to address the standard of care or the trial court’s alternative reliance on the open

and obvious doctrine.

       {¶21} Appellant’s first assignment of error is overruled.

                               C. Intentional or Reckless Conduct

       {¶22} In her second assignment of error, appellant argues that the trial court erred in

granting summary judgment in favor of Katherine Underwood. Appellant contends that the trial

court improperly applied the defense of primary assumption of risk and the open and obvious

doctrine to her allegations that Underwood operated the train in a willful, wanton, and reckless

manner.

       {¶23} In the instant case, appellant brought allegations of recklessness against

Underwood in order to avoid her immunity under R.C. 2744.03(A)(6)(b), which provides that an

employee of a political subdivision is immune from liability “unless the employee’s acts * * *

were with malicious purpose, in bad faith, or in a wanton or reckless manner.”

       {¶24} While the defense of primary assumption of risk acts as a complete bar to

negligence claims, courts have routinely held that it is not a defense to conduct that is intentional

or reckless. White v. Elias, 8th Dist. Cuyahoga No. 97734, 2012-Ohio-3814, ¶ 40 (“Under

primary assumption of the risk, a person assumes the inherent risks of certain activities and

cannot recover for injuries in the absence of another’s reckless or intentional conduct”), citing

Crace, 185 Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906, ¶ 13; Gallagher v. Cleveland

Browns Football Co., 93 Ohio App.3d 449, 463, 638 N.E.2d 1082 (8th Dist.1994), rev’d on

other grounds, 74 Ohio St.3d 427, 659 N.E.2d 1232 (1996) (“the defense of primary assumption

of risk does not apply when the acts of the defendant are willful, wanton or reckless”).

Similarly, the open and obvious doctrine has served to preclude negligence claims, not reckless,
wanton, or intentional conduct claims. Thus, the trial court erred in applying the doctrines to

appellant’s allegations against Underwood, and we must review Underwood’s conduct to

determine whether summary judgment in her favor was appropriate.

       {¶25} Here, we will not address whether Underwood’s conduct was intentional because

this issue has not been raised on appeal.       Instead, the issue is whether Underwood acted

recklessly, causing Berry’s injuries.

       {¶26} In O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶

73-75, the Supreme Court of Ohio discussed “recklessness” as follows:

               In Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990), we
       held that an actor’s conduct “is in reckless disregard of the safety of others if he
       does an act * * * knowing or having reason to know of facts which would lead a
       reasonable man to realize, not only that his conduct creates an unreasonable risk
       of physical harm to another, but also that such risk is substantially greater than
       that which is necessary to make his conduct negligent.” Id. at 104-105, 559
       N.E.2d 705, quoting 2 Restatement of the Law 2d, Torts (1965) 587, Section 500.
       Distilled to its essence, and in the context of R.C. 2744.03(A)(6)(b), recklessness
       is a perverse disregard of a known risk.

               Recklessness, therefore, necessarily requires something more than mere
       negligence. * * * In fact, “the actor must be conscious that his conduct will in
       all probability result in injury.”

(Citations omitted.)

       {¶27} Viewing the evidence in a light most favorable to appellant, we find no evidence in

the record to support the position that Underwood consciously disregarded a known risk of

physical harm to others as she approached the East 120th Street station platform. In an attempt

to demonstrate Underwood’s reckless conduct, appellant relies extensively on the expert report of

Augustine Ubaldi and Jay Pollack. In their report, Ubaldi and Pollack opined that Underwood

“was the cause of this incident” because she “unreasonably”: (1) failed to maintain a proper

lookout, (2) failed to identify Berry’s presence at the time he first became visible, and (3) failed
to react in a timely manner from the time Berry became readily visible. Ubaldi and Pollack

based their opinion on their belief that “a reasonably observant train operator” would have been

able to see Berry’s location near the platform from at least 270 feet away, a distance they believe

gave Underwood enough time to stop the train before hitting Berry. Thus, appellant maintains

that “the evidence supports a finding that Underwood was speeding and/or not paying attention.”

       {¶28} In our view, however, the expert report of Ubaldi and Pollack does not establish, or

even contend, that Underwood acted recklessly.         Instead, their expert report amounted to

assertions that Underwood, at most, negligently failed to perform to the standards of a

“reasonably observant train operator,” a claim Underwood is immune from under R.C.

2744.03(A)(6) and that we have already determined was barred by the defense of primary

assumption of the risk.

       {¶29} We recognize that the determination of recklessness is typically within the province

of the jury. However, the standard for showing recklessness is high and, given the facts of this

case, we are unable to conclude that Underwood’s conduct demonstrated a disposition to

perversity. Accordingly, we find that the evidence does not support a claim of recklessness as

defined above. Therefore, the trial court did not err in granting summary judgment in favor of

Underwood.

       {¶30} Appellant’s second assignment of error is overruled.

       {¶31} Judgment affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the common pleas court to carry this

judgment into execution.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR
