[Cite as Foggin v. Fire Protection Specialists, Inc., 2013-Ohio-5541.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


Bennie Foggin, as Administrator of the                   :
Estate of Joseph Foggin, deceased,
                                                         :
                 Plaintiff-Appellant,                                    No. 12AP-1078
                                                         :          (C.P.C. No. 10CVB-04-6137)
v.
                                                         :         (REGULAR CALENDAR)
Fire Protection Specialists, Inc. et al.,
                                                         :
                 Defendants-Appellees.
                                                         :




                                           D E C I S I O N

                                    Rendered on December 17, 2013


                 Malek & Malek, LLC, and James Malek, for appellant.

                 Crabbe, Brown & James, LLP, Michael R. Henry, and
                 Matthew R. Planey, for appellee Fire Protection Specialists,
                 Inc.

                   APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.
        {¶ 1} Bennie Foggin, administrator of the estate of Joseph Foggin, deceased,
plaintiff-appellant, appeals from the judgment of the Franklin County Court of Common
Pleas, in which the court granted the motion for summary judgment filed by Fire
Protection Specialists, Inc. ("FPS"), defendant-appellee.
        {¶ 2} FPS is a company that maintains fire protection systems. On April 21, 2008,
employees of FPS were at the Arbors of Delaware ("Arbors"), a long-term skilled nursing
and short-term rehabilitation facility to repair and test the facility's fire sprinkler system.
Arbors is owned by Extendicare Health Services, Inc. ("Extendicare"). In order to perform
No. 12AP-1078                                                                             2


the work, FPS turned off the sprinkler system, and Arbors employees turned off the
monitoring system to prevent a false alarm. The other parts of the fire suppression system
were still in operation, including the fire alarms, smoke detectors, pull stations, and fire
doors.
         {¶ 3} To repair the sprinkler system, FPS entered the attic space located above the
drop ceiling tiles in Arbors' lobby using its own six-foot folding stepladder. FPS employees
cut and welded a metal pipe during their repair work. At approximately 11:30 a.m., FPS
employees went to lunch, leaving their stepladder next to the attic, leaving the sprinkler
system disabled, and leaving the alarm system in test mode.
         {¶ 4} While the FPS employees were at lunch, Joseph Foggin ("Foggin"), the
director of maintenance for Arbors; Michael Henson, a maintenance assistant; and
Ardella Layne, were installing a television. Foggin used FPS's ladder several times to enter
the attic to install coaxial cable at the same place FPS was working. Sometime after the
television was installed, but while the FPS workers were still on lunch break, Layne told
Foggin she smelled smoke. Although Foggin did not smell anything, he and Layne
checked areas of the facility. During their inspection, Foggin used FPS's ladder to look in
the attic. After a few minutes, Foggin told Layne he had found nothing, and he attempted
to use the ladder to get down from the attic. He placed his right foot on the rung below the
top step of the ladder and then attempted to move that foot to make room for his left foot.
In doing so, the ladder tilted, and Foggin fell from the ladder. Foggin struck his head on a
handrail. He suffered serious injuries from which he later died.
         {¶ 5} On April 21, 2010, appellant filed a complaint against FPS, alleging
negligence and negligent hiring, supervision, and training; Bauer Corporation, the
manufacturer of the ladder; and Extendicare. Appellant subsequently dismissed Bauer.
On April 5, 2011, FPS filed a motion for summary judgment. On December 28, 2011,
Extendicare moved for summary judgment on subrogation issues arising under workers'
compensation law. On November 15, 2012, the trial court granted FPS's motion for
summary judgment based upon a finding of primary assumption of the risk, and entered
judgment accordingly on November 26, 2012. The trial court also denied Extendicare's
motion as moot. Appellant appeals the judgment of the trial court, asserting the following
assignments of error:
No. 12AP-1078                                                                                3


               I. The trial court erroneously granted defendant-appellees'
              motion for summary judgment because genuine issues of
              material fact remain which should properly be decided by a
              jury.

              II. The trial court erred when it found that the rescue and/or
              emergency doctrine had no conceivable application to Mr.
              Foggin's conduct at the time he fell descending the ladder.

              III. The Defendants-Appellees had a duty to use ordinary care
              in performing their work and they failed to use ordinary care
              and their failure was a proximate cause of Mr. Foggin's fall.

              IV. The Emergency and/or Rescue Doctrines are recognized in
              Ohio and are applicable to the facts of the current case such
              that the doctrine of Primary Assumption of the Risk does not
              apply.

       {¶ 6} Appellant's arguments in his brief do not track his assignments of error.
Thus, we will address all of appellant's assignments of error together, attending to the
various arguments set forth in the brief. Appellant's assignments of error assert generally
that the trial court erred when it granted summary judgment. 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 non-moving party, and that conclusion is adverse to the non-
moving 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, L.L.C., 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} The elements of an ordinary negligence suit between private parties are
(1) the existence of a legal duty, (2) the defendant's breach of that duty, and (3) injury that
is the proximate cause of the defendant's breach. Mussivand v. David, 45 Ohio St.3d 314,
318 (1989). Ohio law recognizes three categories of assumption of the risk as defenses to a
No. 12AP-1078                                                                                 4


negligence claim; express, primary, and implied or secondary. Schnetz v. Ohio Dept. of
Rehab. & Corr., 195 Ohio App.3d 207, 2011-Ohio-3927, ¶ 21 (10th Dist.); Crace v. Kent
State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10 (10th Dist.). In the present case,
the trial court granted summary judgment in favor of FPS based upon the doctrine of
primary assumption of the risk.
       {¶ 8} Primary assumption of the risk is applied in cases where there is no duty
owed by the defendant to the plaintiff. See Gallagher v. Cleveland Browns Football Co.,
74 Ohio St.3d 427 (1996); Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175 (1925).
"Underlying this judicially created doctrine is the notion that certain risks are so inherent
in some activities that they cannot be eliminated." Otterbacher v. Brandywine Ski Ctr.,
Inc., 9th Dist. No. 14269 (May 23, 1990). Thus, primary assumption of the risk completely
negates a negligence claim because the defendant owes no duty to protect the plaintiff
against the inherent risks of the recreational activity in which the plaintiff engages.
Schnetz at ¶ 24; Crace at ¶ 15. Primary assumption of the risk "is a defense of
extraordinary strength" because it defeats a plaintiff's ability to allege even a prima facie
case of negligence. Gallagher at 431. Whether to apply primary assumption of the risk is a
matter of law for the court to decide. Crace at ¶ 12.
       {¶ 9} 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 a result of the danger during the course
of the activity. Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, ¶ 12
(10th Dist.). 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 (9th Dist.1987). By choosing to participate in an activity, the
participant implicitly accepts those risks. Curtis v. Schmid, 5th Dist. No. 07 CAE 11 0065,
2008-Ohio-5239, ¶ 54, citing Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005-Ohio-
4744, ¶ 11. The types of risks associated with the activity are those that are foreseeable and
customary risks of the activity. Id.
       {¶ 10} However, the injured plaintiff's subjective consent to and appreciation for
the inherent risks of the recreational activity are immaterial to the analysis. Schnetz at
¶ 25; Crace at ¶ 16. Those entirely ignorant of the risks of the activity, still assume the risk
No. 12AP-1078                                                                                5


by participating in the activity. The law simply deems certain risks as accepted by plaintiff
regardless of actual knowledge or consent. Id. Therefore, the doctrine of primary
assumption of the risk requires an examination of the activity itself. If the activity involves
risks that cannot be eliminated, then a finding of primary assumption of the risk is
appropriate. Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307 (June 12,
1997); Schnetz at ¶ 25. The defendant's conduct is relevant only if it rises to reckless or
intentional conduct. Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 6, fn. 2;
Schnetz at ¶ 23.
       {¶ 11} In the present case, the trial court determined that a ladder tipping and
causing the user to fall is a recognized risk of using a ladder. The court found that any
person experienced in using a stepladder tacitly acknowledges that it might inadvertently
tip over and injure him or her, which is a straightforward, ordinary risk within the realm
of common knowledge. The court concluded that a ladder tipping is inherent in the basic
activity of using a ladder. The court also noted that any person using a stepladder also
recognizes that such a ladder can tip and is most unsteady while standing near the top.
       {¶ 12} Appellant first argues that Foggin did not voluntarily engage in the activity of
climbing the ladder. Appellant posits that, as a maintenance person, it was Foggin's job to
find the unknown source of the smell of smoke, and he felt compelled to check the attic for
smoke. Although we agree that Foggin's activities fell within the broadest purview of his
job description, Foggin voluntarily decided to use FPS's ladder to check the attic. Despite
the assumption that Foggin felt compelled to check for smoke, there is no evidence that
Foggin was required or compelled to climb and descend the ladder in question and in the
specific manner he chose. Although appellant complains that FPS's ladder was too short
to reach the attic opening, it is undisputed that Foggin was not required to use FPS's
ladder, and he had full access to the taller ladders provided by Arbors. Appellant also fails
to present evidence that Foggin's job was at risk if he chose not to climb or descend FPS's
ladder. The record is devoid of any facts that Foggin was compelled to choose the course
of conduct that he selected. In fact, Layne testified that it was Foggin who "decided to go
up the ladder." She said he used FPS's ladder because it was "handy," and there was
nothing prohibiting him from using one of the ladders owned by Arbors.
No. 12AP-1078                                                                                   6


       {¶ 13} We also reject appellant's argument that the risk of falling from the ladder
could have been eliminated if FPS would have left a taller ladder in the vicinity. At issue is
whether Foggin voluntarily climbed and descended the existing six-foot ladder to reach
the attic space and whether the dangers associated with climbing such a ladder are
ordinary and within the realm of common knowledge. The danger at issue is the climbing
of the ladder in question and not the climbing of a hypothetical ladder. Regardless,
climbing ladders is inherently dangerous regardless of the ladder used. See, e.g., Morgan
v. Ohio Conference of United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453
(rejecting the plaintiff's argument that primary assumption of the risk did not apply when
the risks associated with the inherently risky activity of night hiking could have been
eliminated if the instructor had chosen a different trail, because any assessment error in
the subjective judgment of the path chosen by the instructor, if any, was not reckless or
outside the range of the ordinary activity involved in night hiking, and tripping, slipping,
and falling are inherent risks of night hikes, regardless of the trail chosen). Here, like in
Morgan, any error in the judgment of the height of ladder FPS left in the vicinity of the
attic space was not outside the range of the ordinary activity associated with ladder usage,
and falling is an inherent risk of ladders regardless of the height of ladder used. Therefore,
this argument is without merit.
       {¶ 14} We find our case in Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-
696, 2008-Ohio-1421, instructive. In Ballinger, the defendant was installing a new roof
on plaintiff's house. Plaintiff safely climbed the defendant's ladder once to show
defendant where to place a dryer vent but then fell the second time he climbed the ladder
after the ladder shifted when he was at the top of it. We found the activity in question in
Ballinger was "ladder climbing." Id. at ¶ 13. We concluded that it was common knowledge
that climbing ladders is an inherently dangerous activity, and that is why people take
extreme care when doing so. Id. Failure to take due care when climbing a ladder will often
result in losing one's balance, falling from the ladder, or causing the ladder itself to fall. Id.
For these reasons, ladders carry conspicuous warning labels. Id. Therefore, we held in
Ballinger that ladder climbing was a type of inherently dangerous activity that is subject
to primary assumption of risk. We also noted that the plaintiff testified that he
appreciated the potential danger associated with climbing the ladder to his roof, there was
No. 12AP-1078                                                                                  7


nothing that prevented him from repositioning the ladder that day on the second trip up
to the roof, and he used the ladder because "[i]t was there." Id. at ¶ 14. We also
acknowledged that transferring from the ladder can be quite daunting. Id. at ¶ 17. When
only one foot is on the ladder, the weight distribution changes dramatically, which can
easily cause the ladder to shift in the direction of the foot that is still planted firmly on the
ladder. Id. We recognized that poor technique in this regard would foil even the most
perfectly erected ladder. Id.
       {¶ 15} In the present case, Layne testified in her deposition that it appeared
Foggin's right foot was too far to the inside of the second step from the top, and he tried to
wiggle his right foot to the side to make room for his left foot on the same step. At that
point, the pressure from his right foot caused the ladder to tilt to the right. As we
recognized in Ballinger, it is inherent in all stepladders that there is a danger of the ladder
shifting when only one foot is on a step near the top of the ladder. Furthermore, Layne
testified that she and Foggin learned in their safety training at Arbors that you never step
on the top steps of a ladder. Similarly, Henson, who was hired to work in the maintenance
department at Arbors two weeks before the incident, testified that he learned during his
Arbors safety training "[t]he basic common knowledge of the ladder: Always stay within
the parameters, don't step on the top two rungs, make sure you ha[ve] the proper ladder
for the proper job." Therefore, we find that the danger of a stepladder falling, particularly
when using the top rungs, is ordinary to stepladders, and it is common knowledge that
this danger exists. For the foregoing reasons, we find the trial court did not err when it
applied the doctrine of primary assumption of the risk to the present case to find FPS
owed no duty to Foggin.
       {¶ 16} Appellant next argues that, at the time of his injury, Foggin was attempting a
rescue from an imminent and serious peril, and, thus, his action was not barred by the
defense of primary assumption of the risk. A person injured during an attempted rescue
may recover from the party negligently causing the danger to the same extent as the
person who required assistance from the rescuer. Bennett v. Stanley, 92 Ohio St.3d 35, 46
(2001) (Cook, J., dissenting). This "rescue doctrine" has long been a part of Ohio's
common law. Estate of Minser v. Poinsatte, 129 Ohio App.3d 398, 401-02 (6th
Dist.1998); Reese v. Minor, 2 Ohio App.3d 440 (1st Dist.1981). However, one may be a
No. 12AP-1078                                                                              8


rescuer only as long as he or she has a reasonable belief that a victim is in peril. Marks v.
Wagner, 52 Ohio App.2d 320, 324 (3d Dist.1977). "[A] reasonable belief of continued
peril could not exist in a case where the negligent act causing the victim's injuries had run
its course and the victim's life was no longer in peril." Id.
       {¶ 17} Notwithstanding, we agree with the trial court that the rescue doctrine would
not apply to the present case because the peril was over at the time of Foggin's fall.
Although this case presents unfortunate circumstances, the facts do not support a finding
that Foggin's or anyone else's life was in peril at the time Foggin fell. Neither Layne nor
Foggin saw fire or smoke. Foggin did not smell any smoke. Layne testified that there was
no sense of panic, no residents or other employees said they smelled smoke, none of the
residents sitting in the lobby near the location of the incident were asked to move, and
none of the nearby residents were using oxygen, which is highly flammable. In her
deposition, Layne said that she did not believe the situation was urgent, the entire
situation unfolded in a matter of seconds, and Foggin did not act like he believed it was
urgent. Layne said that Foggin was not going up or coming down the ladder in a hurried
or panicked manner. Therefore, we conclude that there was no evidence that anyone's life
was in peril, and, even if there was any peril, such had dissipated after being unable to
find the source of the smoke in the attic or surrounding areas. For all of the foregoing
reasons, we must overrule appellant's first, second, third, and fourth assignments of error.
       {¶ 18} Accordingly, appellant's four assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.

                                                                       Judgment affirmed.

                           DORRIAN and O'GRADY, JJ., concur.

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