[Cite as Smith v. Landfair, 2014-Ohio-3314.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

ROSHEL SMITH                                         C.A. No.       25371

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DONALD LANDFAIR, et al.                              COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellees                                    CASE No.   CV-2009-03-2476

                                 DECISION AND JOURNAL ENTRY

Dated: July 30, 2014



        BELFANCE, Judge.

        {¶1}    Plaintiff-Appellant Roshel Smith appeals the trial court’s award of summary

judgment to Defendant-Appellee Donald Landfair. For the reasons set forth below, we affirm in

part and reverse in part.

                                                I.

        {¶2}    In 2007, Mr. Landfair boarded two horses, Green Acre Patty (“Patty”) and Green

Acre Annie (“Annie”) at CJS Standardbred Stables (“CJS”) in Wayne County. Ms. Smith’s

father Ernest Smith owned and operated CJS, and Ms. Smith worked at the stables from 2002 to

2008. In March 2007, Mr. Landfair transported Patty and Annie to the blacksmith to have them

shod. Upon his return to the stables, Mr. Landfair unloaded Patty without incident and took her

into the stables. Ms. Smith was waiting for her father to finish a training session with a horse so

she could speak with him and saw Mr. Landfair unload Patty. Mr. Landfair returned to the trailer

to unload Annie. However, as he began to remove her from the trailer, a horse-drawn cart with
                                                  2


metal wheels rolled past the trailer, spooking Annie. Annie knocked Mr. Landfair to the ground

and began to prance around him excitedly. Ms. Smith, observing the incident, ran towards Mr.

Landfair to assist him and was kicked in the face by Annie, sustaining severe injuries.

       {¶3}    Ms. Smith filed a complaint against Mr. Landfair, alleging that he was negligent

in his handling of Annie. Ms. Smith alleged that Mr. Landfair knew Annie to be skittish and that

he was physically unable to control Annie. Following discovery, Mr. Landfair moved for

summary judgment, alleging that he was immune under R.C. 2305.321, which grants immunity

to people participating in equine activities. Ms. Smith moved in opposition, but the trial court

determined that there was no genuine dispute of material fact and that R.C. 2305.321 prevented

Ms. Smith from recovering as a matter of law.

       {¶4}    Ms. Smith appealed, and this Court reversed, determining that Ms. Smith was not

an equine activity participant as a matter of law and, thus, Mr. Landfair was not entitled to

immunity under the equine immunity statute. Smith v. Landfair, 194 Ohio App.3d 468, 2011-

Ohio-3043, ¶ 18 (9th Dist.). Mr. Landfair appealed this Court’s decision, and the Supreme Court

reversed, concluding that Ms. Smith was an equine activity participant. Smith v. Landfair, 135

Ohio St.3d 89, 2012-Ohio-5692, ¶ 30. The Supreme Court remanded the matter to this Court for

consideration of Ms. Smith’s assignments of error that we had previously deemed moot given

our conclusion regarding her spectator status. Id. at ¶ 32. Following supplemental briefing and

oral argument, this case is again before us on Ms. Smith’s three remaining assignments of error.

For ease of discussion, we address Ms. Smith’s assignments of error out of order.

                                                II.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN ITS APPLICATION OF R.C.
       []2305.321(A)(3)(a) OF THE EQUINE IMMUNITY STATUTE FINDING
                                                  3


         THAT APPELLEE WAS “CONTROLLING” HIS HORSE AS A MATTER OF
         LAW[.]

         {¶5}   In Ms. Smith’s fourth assignment of error, she argues that Mr. Smith was not

entitled to summary judgment because he was not an equine activity participant as defined by the

statute. We disagree.

         {¶6}   This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,

viewing the facts of the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427,

2011-Ohio-1519, ¶ 8.

         {¶7}   Pursuant to Civ.R. 56(C), summary judgment is appropriate 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 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 (1977). To succeed on a summary

judgment motion, the movant bears the initial burden of demonstrating that there are no genuine

issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt,

75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must

set forth specific facts showing that there is a genuine issue for trial.’” Id. at 293, quoting Civ.R.

56(E).

         {¶8}   R.C. 2305.321(B)(1) establishes immunity for equine activity sponsors and

participants from liability in civil or other actions brought by equine activity participants. See

R.C. 2305.321(B)(1) (“[A]n equine activity sponsor, equine activity participant, equine

professional, veterinarian, farrier, or other person is not liable in damages in a tort or other civil
                                                4


action for harm that an equine activity participant allegedly sustains during an equine activity

and that results from an inherent risk of an equine activity.”). For the purposes of this case, Mr.

Landfair is only immune from suit if he and Ms. Smith are both equine activity participants. The

Supreme Court has concluded that Ms. Smith was an equine activity participant. See Landfair,

135 Ohio St.3d 89, 2012-Ohio-5692, at ¶ 30. Ms. Smith, however, argues that Mr. Landfair is

not immune because he was not an equine activity participant pursuant to R.C.

2305.321(A)(3)(a), which defines an equine activity participant as “a person who engages in * *

* [r]iding, training, driving, or controlling in any manner an equine, whether the equine is

mounted or unmounted[.]” Ms. Smith argues that Mr. Landfair would only qualify as an equine

activity participant if he was “controlling” Annie and that he was not in “control” of Annie when

he was lying on the ground, which was when Ms. Smith was injured.

       {¶9}    “Controlling” is not defined by the equine immunity statute. “‘[I]n the absence of

any definition of the intended meaning of words or terms used in a legislative enactment, they

will, in the interpretation of the act, be given their common, ordinary and accepted meaning in

the connection in which they are used.’” Weaver v. Edwin Shaw Hosp., 104 Ohio St.3d 390,

2004-Ohio-6549, ¶ 13, quoting Wachendorf v. Shaver, 149 Ohio St. 231 (1948), paragraph five

of the syllabus. Control means “[t]o exercise power or influence over * * *[;] [t]o regulate or

govern * * *.” Black’s Law Dictionary 353 (8th Ed.2004). It may also mean “to exercise

restraining or directing influence over * * *[;] to have power over[.]” Merriam-Webster’s

Collegiate Dictionary 272 (11th Ed.2005). It is undisputed that, even after he fell, Mr. Landfair

maintained his hold on Annie’s lead line. Therefore, he had some, albeit minimal at that

moment, restraining or directing influence over her and, thus, was controlling her.
                                                 5


       {¶10} Furthermore, Ms. Smith is essentially arguing for sporadic immunity. Ms. Smith

argues that Mr. Landfair had immunity when he was leading Annie from the trailer, lost it when

he fell, and regained it when he stood up and calmed Annie. Notably, she cites no authority to

support this argument for moment-by-moment analysis of immunity. See App.R. 16(A)(7). Her

argument also ignores the clear intent of the General Assembly. R.C. 2305.321(B)(1) provides

equine activity participants with liability from the inherent risks of equine activity. The inherent

risks of an equine activity include “(a) [t]he propensity of an equine to behave in ways that may

result in injury, death, or loss to persons on or around the equine[, and] (b) [t]he unpredictability

of an equine’s reaction to sounds, sudden movement, unfamiliar objects, persons, or other

animals.” R.C. 2305.321(A)(7). Thus, the statute recognizes that “horses are unpredictable.”

Landfair at ¶ 28. It would appear that, absent the enumerated exceptions to immunity, the

General Assembly did not intend for an equine activity participant to suddenly become liable

when the horse acted in an unpredictable manner, i.e. when briefly losing control of the horse.

Thus, we conclude that Ms. Smith’s argument to the contrary is without merit.

       {¶11} Accordingly, her fourth assignment of error is overruled.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN HOLDING THAT THE EQUINE IMMUNITY
       STATUTE EXTINGUISHED THE COMMON LAW RESCUE DOCTRINE[.]

       {¶12} In Ms. Smith’s first assignment of error, she argues that summary judgment was

inappropriate because rescue doctrine supersedes the statutory immunity offered by R.C.

2305.321. We disagree.

       {¶13} The rescue doctrine is well-established in Ohio jurisprudence, dating back to the

19th century. See Pennsylvania Co. v. Langendorf, 48 Ohio St. 316 (1891), paragraphs one

through three of the syllabus. Under the rescue doctrine, “‘[o]ne who is injured in an attempt to
                                                 6


rescue a person in danger as a result of that person’s own negligence may recover from that

person under established principles of negligence including proximate causation.’” Skiles v.

Beckloff, 9th Dist. Lorain No. 93CA005550, 1993 WL 290203, *1 (Aug. 4, 1993), quoting Reese

v. Minor, 2 Ohio App.3d 440 (1st Dist.1981), syllabus. See also Langendorf at paragraph three

of the syllabus (Unless the rescuer unnecessarily exposes himself or herself to danger, “the injury

should be attributed to the party that negligently or wrongfully exposed to danger the person who

required assistance.”).   Essentially, the rescue doctrine permits the rescuer to maintain a

negligence action despite having voluntarily put himself or herself in harm’s way. See Marks v.

Wagner, 52 Ohio App.2d 320, 323 (3d Dist.1977) (“Technically, the rescue doctrine is limited

solely to the issue of the existence of contributory negligence on behalf of the rescuer, including

the lack of imputation to the rescuer of the negligence of the person whose rescue is involved,

and, in appropriate cases, that recovery is not precluded by the fact that the rescuer is an

employee of the defendant. The existence of actionable negligence on the part of the defendant

is still determined by common law principles relating to the scope of the defendant’s duty,

including the element of foreseeability of injury, the violation of that duty and proximate

cause.”).

       {¶14} However, R.C. 2305.321(B)(1) provides that

       [e]xcept as provided in division (B)(2) of this section and subject to division (C)
       of this section, an equine activity sponsor, equine activity participant, equine
       professional, veterinarian, farrier, or other person is not liable in damages in a tort
       or other civil action for harm that an equine activity participant allegedly sustains
       during an equine activity and that results from an inherent risk of an equine
       activity. Except as provided in division (B)(2) of this section and subject to
       division (C) of this section, an equine activity participant or the personal
       representative of an equine activity participant does not have a claim or cause of
       action upon which a recovery of damages may be based against, and may not
       recover damages in a tort or other civil action against, an equine activity sponsor,
       another equine activity participant, an equine professional, a veterinarian, a
       farrier, or another person for harm that the equine activity participant allegedly
                                                7


       sustained during an equine activity and that resulted from an inherent risk of an
       equine activity.

Given that Ms. Smith was an equine-activity participant, see Landfair, 135 Ohio St.3d 89, 2012-

Ohio-5692, at ¶ 30, she “does not have a claim or cause of action upon which a recovery may be

based * * * and may not recover damages in a tort or other civil action * * *” against Mr.

Landfair subject to the exceptions contained in R.C. 2305.321. R.C. 2305.321(B)(1). Thus, she

may not maintain a cause of action under the rescue doctrine because that would be a negligence

claim, i.e. a tort, which is barred by R.C. 2305.321(B)(1). See Marks at 323.

       {¶15} Nevertheless, Ms. Smith argues that the Equine Immunity Statute cannot

supersede the common law rescue doctrine because, “[i]n the absence of language clearly

showing the intention to supersede the common law, the existing common law is not affected by

the statute but continues in full force.” However, R.C. 2305.321(B)(1) does clearly abrogate the

common law; it prohibits equine activity participants from maintaining claims of negligence and

recklessness actions against other equine activity participants.         In other words, R.C.

2305.321(B)(1) expressly eliminates the common law causes of action subject to the exceptions

in R.C. 2305.321. Thus, if R.C. 2305.321(B)(1) applies, it bars recovery under the rescue

doctrine because it eliminates the underlying claims giving rise to the rescue doctrine. See

Marks at 323.

       {¶16} Accordingly, Ms. Smith’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
       WHERE THE DEFENDANT FAILED TO EXERCISE ANY CARE
       WHATSOEVER AND REASONABLE MINDS COULD CONCLUDE THAT
       SUCH CONDUCT WAS WANTON[.]
                                                8


       {¶17} Ms. Smith argues in her second assignment of error that Mr. Landfair’s conduct

was wanton and, therefore, he was not entitled to immunity under the statute. As noted above,

R.C. 2305.321(B)(1) provides general immunity to equine activity participants and sponsors.

However, that immunity is subject to exceptions set forth in R.C. 2305.321(B)(2). Pertinent to

Ms. Smith’s second assignment of error is R.C. 2305.321(B)(2)(d), which provides that the

immunity provided by R.C. 2305.321(B)(1) is forfeited if “[a]n act or omission of an equine

activity sponsor, equine activity participant, equine professional, veterinarian, farrier, or other

person constitutes a willful or wanton disregard for the safety of an equine activity participant

and proximately causes the harm involved.” “Wanton misconduct is the failure to exercise any

care toward those to whom a duty of care is owed in circumstances in which there is great

probability that harm will result.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711,

paragraph three of the syllabus.

       {¶18} In support of her motion in opposition to summary judgment, Ms. Smith

submitted evidence which focused upon the propriety of Mr. Landfair taking the horse off the

property at all as well as Mr. Landfair’s conduct at the time of the incident. Ms. Smith submitted

the affidavits of her father and Vic Clark. Mr. Smith averred that he had advised against Annie

being taken off the property to be shod because she was flighty. He also averred that Mr.

Landfair had told him that Annie had only been trailered once before. Mr. Clark also criticized

Mr. Landfair’s actions in his affidavit, averring that Mr. Landfair should not have attempted to

move Annie by himself given his age and that he should have sedated her prior to attempting to

remove her from the trailer. In addition to the affidavits of her father and Mr. Clark, Ms. Smith

also pointed to Mr. Landfair’s deposition in which he indicated that he had a hearing problem
                                                9


and a person should avoid unloading a horse when there were loud noises around and that he did

not look around before unloading Annie.

       {¶19} In examining the question before us, we find the trial court’s entry problematic

because it does not appear that the trial court examined whether the facts set forth by Ms. Smith

created a dispute of fact as to whether Mr. Landfair was wanton. Rather, the trial court pointed

to evidence put forth by Mr. Landfair that contradicted Ms. Smith’s summary judgment evidence

and, in doing so, appears to have weighed that evidence in Mr. Landfair’s favor.1 However, the

relevant inquiry is whether the facts when viewed in the light most favorable to Ms. Smith create

a dispute of material fact as to whether Mr. Landfair’s conduct was wanton.          In addition,

although unclear, the trial court’s entry seemed to characterize Ms. Smith as seeking to

demonstrate that Mr. Landfair’s conduct was wanton. However, Ms. Smith’s reciprocal burden

on summary judgment was to demonstrate that reasonable minds could differ as to whether Mr.

Landfair was wanton.    As we have stated many times in the past, we are a reviewing court, and,

therefore, under the circumstances, it is appropriate to remand so that the trial court may apply

the summary judgment standard and determine whether, when viewed in the light most favorable

to Ms. Smith, there was a genuine dispute of fact as to whether Mr. Landfair’s behavior was

wanton. See, e.g., Mourton v. Finn, 9th Dist. Summit No. 26100, 2012-Ohio-3341, ¶ 9.

                                             III.

       {¶20} Ms. Smith’s first and fourth assignments of error are overruled, and her second

assignment of error is sustained. The judgment of the Summit County Court of Common Pleas



       1
          The trial court also appears to have erroneously ignored Mr. Clark’s affidavit in its
entirety because it contained a statement that Mr. Landfair’s behavior was wanton. While it is
true that an affiant may not make legal conclusions, Mr. Clark also made factual statements
regarding Mr. Landfair’s actions and the dangers associated with his actions.
                                                10


is affirmed in part and reversed in part, and the matter is remanded for further proceedings

consistent with this opinion.

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




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT




MOORE, P. J.
HENSAL, J.
CONCUR.
                                         11


APPEARANCES:

JOHN K. RINEHARDT, Attorney at Law, for Appellant.

KENNETH A. CALDERONE and JOHN R. CHLYSTA, Attorneys at Law, for Appellee.
