[Cite as K.D. v. Schneider, 2017-Ohio-1502.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



K.D., A MINOR                                  :    JUDGES:
                                               :    Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                    :    Hon. John W. Wise, J.
                                               :    Hon. Earle E. Wise, Jr., J.
-vs-                                           :
                                               :
SHANNON SCHNEIDER, ET AL.                      :    Case No. 16-CA-27
                                               :
        Defendants-Appellees                   :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2014CV773




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   April 21, 2017




APPEARANCES:

For Plaintiff-Appellant                             For Defendants-Appellees

TERRY V. HUMMELL                                    DAVID W. PRYOR
115 West Main Street                                471 East Broad Street
Suite 100                                           19th Floor
Columbus, OH 43215                                  Columbus, OH 43215
Fairfield County, Case No. 16-CA-27                                                     2

Wise, Earle, J.

      {¶ 1} Plaintiff-Appellant, K.D., a minor, appeals the June 27, 2016 entry of the

Court of Common Pleas of Fairfield County, Ohio, granting summary judgment to

Defendants-Appellees, Shannon Schneider and his son, Justin.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} On April 23, 2013, appellant was operating an ATV owned by appellee

Shannon Schneider when she crashed into a tree, sustaining injuries. At the time of the

accident, appellant was on property belonging to appellee Shannon Schneider. Appellant

and appellee Justin Schneider had just started dating.

      {¶ 3} On November 12, 2014, appellant filed a complaint against appellees and

Amanda Schneider, claiming they knowingly, willfully, wantonly, recklessly, negligently,

and unlawfully entrusted the ATV vehicle to appellant and appellee Justin Schneider,

failed to warn appellant of the dangers of operating an ATV, failed to properly instruct

appellant on operating an ATV, failed to properly supervise appellant on the ATV, and

failed to properly inspect the ATV and property to ensure the ATV could be operated in a

safe manner.

      {¶ 4} On August 20, 2015, appellant voluntarily dismissed Amanda from the case.

      {¶ 5} On February 1, 2016, appellees filed a motion for summary judgment,

claiming appellant was a recreational user on their property and therefore they were not

liable for any of her injuries. Appellees also claimed appellant assumed the ordinary risk

associated with operating an ATV, and they did not negligently entrust appellant with the

ATV. Opposition and reply briefs were filed, as well as a motion to supplement the record
Fairfield County, Case No. 16-CA-27                                                   3


by appellant.     By entry filed June 27, 2016, the trial court granted the motion to

supplement the record, and granted summary judgment to appellees.

      {¶ 6} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶ 7} "THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION

FOR SUMMARY JUDGMENT."

      {¶ 8} Appellant claims the trial court erred in granting summary judgment to

appellees. We disagree.

      {¶ 9} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211, 663 N.E.2d 639:



                Civ.R. 56(C) 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 nonmoving party, that conclusion is adverse to the party

      against whom the motion for summary judgment is made. State ex. rel.

      Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

      citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d

      466, 472, 364 N.E.2d 267, 274.
Fairfield County, Case No. 16-CA-27                                                        4




      {¶ 10} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

      {¶ 11} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:



             It is well established the party seeking summary judgment bears the

      burden of demonstrating that no issues of material fact exist for trial.

      Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

      L.Ed.2d 265(1986).       The standard for granting summary judgment is

      delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party

      seeking summary judgment, on the ground that the nonmoving party cannot

      prove its case, bears the initial burden of informing the trial court of the basis

      for the motion, and identifying those portions of the record that demonstrate

      the absence of a genuine issue of material fact on the essential element(s)

      of the nonmoving party's claims. The moving party cannot discharge its

      initial burden under Civ.R. 56 simply by making a conclusory assertion the

      nonmoving party has no evidence to prove its case. Rather, the moving

      party must be able to specifically point to some evidence of the type listed

      in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

      no evidence to support the nonmoving party's claims. If the moving party
Fairfield County, Case No. 16-CA-27                                                     5


      fails to satisfy its initial burden, the motion for summary judgment must be

      denied. However, if the moving party has satisfied its initial burden, the

      nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

      set forth specific facts showing there is a genuine issue for trial and, if the

      nonmovant does not so respond, summary judgment, if appropriate, shall

      be entered against the nonmoving party."          The record on summary

      judgment must be viewed in the light most favorable to the opposing party.

      Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.



                                NEGLIGENCE CLAIMS

      {¶ 12} The parties agreed that appellant was a recreational user of the ATV. R.C.

1533.181 governs exception from liability to recreational users and states the following:



             (A) No owner, lessee, or occupant of premises:

             (1) Owes any duty to a recreational user to keep the premises safe

      for entry or use;

             (2) Extends any assurance to a recreational user, through the act

      of giving permission, that the premises are safe for entry or use;

             (3) Assumes responsibility for or incurs liability for any injury to

      person or property caused by any act of a recreational user.

             (B) Division (A) of this section applies to the owner, lessee, or

      occupant of privately owned, nonresidential premises, whether or not the
Fairfield County, Case No. 16-CA-27                                                        6


       premises are kept open for public use and whether or not the owner,

       lessee, or occupant denies entry to certain individuals.



       {¶ 13} In Marchetti v. Kalish, 53 Ohio St.3d 95, syllabus, 559 N.E.2d 699 (1990),

the Supreme Court of Ohio held: "Where individuals engage in recreational or sports

activities, they assume the ordinary risks of the activity and cannot recover for any injury

unless it can be shown that the other participant's actions were either 'reckless' or

'intentional' as defined in Sections 500 and 8A of the Restatement of Torts 2d."

       {¶ 14} 2 Restatement of the Law 2d, Torts, Section 500 (1965) defines "reckless"

as:



              The actor's conduct is in reckless disregard of the safety of another

       if he does an act or intentionally fails to do an act which it is his duty to the

       other to do, 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.



       {¶ 15} 1 Restatement of the Law 2d, Torts, Section 8(A) (1965) defines

"intentional" as: "The word 'intent' is used throughout the Restatement of this Subject to

denote that the actor desires to cause consequences of his act, or that he believes that

the consequences are substantially certain to result from it."
Fairfield County, Case No. 16-CA-27                                                     7


        {¶ 16} Appellees attached their affidavits to their motion for summary judgment

filed February 1, 2016. Appellee Shannon Schneider averred the following in pertinent

part:



              3. My first requirement was that [K.] would have to get permission

        from her family first. [K.] called her grandmother and received permission

        to ride the ATV. I also required that everyone wear helmets and that [K.]

        receive full operating instructions. Amber and my son had prior experience

        operating the ATVs.

              4. I went out with the three of them to the ATVs and personally

        instructed [K] [D] on how to use the brakes and throttle. I also witnessed

        Amber and Justin explain that to her as well.

              5. As they were riding, I stood there and observed all of them for at

        least 15 minutes. At no time did I notice any erratic or improper operation

        by [K]. She always had someone on the back of her ATV with her as well.



        {¶ 17} Appellee Justin Schneider averred the following in pertinent part:



              3. My father required that [K] receive permission from her family, that

        we wear helmets, and that he come out to personally instruct [K] on the

        operation of an ATV if she was going to be a driver.

              4. I also instructed [K] in how to operate the ATV.
Fairfield County, Case No. 16-CA-27                                                        8


                5. Amber Sewell had a lot of experience operating an ATV and she

       also rode on the back with [K]. [K] operated the ATVs for quite a while and

       at no time did I observe her having any difficulty operating the ATV. She

       was able to steer, stop and accelerate properly.

                7. [K] started going faster and went in a straight line for at least 100

       yards and ran right into a tree. There was open field everywhere around

       her. She later told me that she was not paying attention to where she was

       going.



       {¶ 18} In her affidavit attached to her memorandum in opposition filed March 15,

2016, appellant averred the following in pertinent part:



                2. On April 23, 2013, I had recently turned age 16 and did not yet

       have a driver's license.

                4. After we arrived, Justin asked me if I wanted to ride an ATV. I had

       never ridden an ATV before and it seemed like it would be fun, so I readily

       agreed. I had no idea of the risk of riding an ATV. It is my recollection that

       we did not seek or receive permission from Justin's father, Shannon

       Schneider, to ride the ATVs, but rather he came home after we started

       riding, but did not object to me riding the ATVs. I also have no recollection

       of Shannon Schneider providing me any instruction on the operation of the

       ATVs.
Fairfield County, Case No. 16-CA-27                                                  9


            5. I did not seek permission to ride the ATV from my grandmother,

      with whom I was staying at the time, nor did I contact either of my parents,

      both of whom were in Virginia at that time. I am certain that all of them

      would have refused consent if I had asked. Neither my boyfriend, Justin

      Schneider, or his father, Shannon Schneider, requested that I obtain

      permission before riding the ATV.

            6. For the first 30 minutes or so, I rode on the back of Justin's ATV

      as a passenger. Soon after we started riding, Justin's father, Shannon

      Schneider, came home. He told us to put on helmets. Shannon remained

      outside for most of the time we were riding ATVs.

            7. About 30 minutes after we started riding, Justin spent about 30

      seconds pointing out the controls for another ATV called a Grizzly 450. I

      did not grasp everything that he said in that short time. The only warning

      that I saw on the ATV prohibited drivers under the age of 16.

            8. I then started to ride the Grizzly 450 on my own for a short time.

      Soon after that, Amber Sewell arrived. She was my age and she and her

      mother were staying with Shannon Schneider. She and her mother had

      been riding ATVs at Shannon's property for some time.

            9. Amber and I started to ride the Grizzly 450 taking turns a (sic)

      driver and passenger. At no time, did Justin or his father, Shannon, suggest

      that riding the ATV with a passenger was a bad idea, so I assumed it was

      totally acceptable. I had no idea that operating an ATV with a passenger

      could be dangerous.
Fairfield County, Case No. 16-CA-27                                                      10




       {¶ 19} In her supplemental facts filed April 19, 2016, appellant stated the following

in pertinent part:



              Ms. [D] did not call her grandmother to ask permission to ride the

       ATVs, and she did not tell Justin Schneider that she did contact her

       grandmother. (27:2-7). Ms. [D] did not call her grandmother because she

       knew her grandmother would deny her permission. (27:18-22). However,

       she does not recall if Shannon Schneider required her to ask her

       grandmother for permission before riding. (28:16-21). Ms. [D] states there

       was no reason the Schneiders would have known Ms. [D]'s grandmother

       denied her permission to ride the ATVs. (29:12-20).

              Before riding, Ms. [D] expressed to Shannon Schneider that she had

       never ridden before and was unsure of how to operate the ATV. (56:14-24).

       Shannon Schneider then directed Justin Schneider to demonstrate how to

       operate it; he "lightly showed" her how, then they began riding. (57:1-5).

       Ms. [D] states she was having difficulty steering the Grizzly 450 when she

       was riding by herself. (48:23-24, 49:1-4). She did not mention this to Justin

       Schneider because she assumed it was her fault and that she could correct

       her mistake. (49:5-9). Moreover, she did not tell Shannon Schneider she

       was feeling uncomfortable operating the vehicle. (57:15-22). However,

       during this time she was very fearful she would hit something. (49:10-14).
Fairfield County, Case No. 16-CA-27                                                         11


              Further, when Ms. [D] was driving and Amber Sewell was riding as a

       passenger, she was having extreme difficulty steering the ATV. (51:20-23).

       During this time, Ms. [D] drove into a thorn bush located on the adjacent

       property. (51:20-23, 52:1-7). She was not traveling that fast, but she states

       she held the breaks (sic) as hard as she could. (52:8-14). When she hit the

       bush, Ms. [D] states it was because she was unsure how to steer correctly,

       where the breaks (sic) were, and how to stop the ATV. (67:12-18). No one

       was injured, and it was not reported to Mr. Schneider until after the incident

       at issue. (52:17-23). Ms. [D] then continued to keep operating the quad,

       and insisted she do so. (54:4-10, 16-23).           She states she did not

       comprehend the risk of operating the ATV even after crashing into the bush.

       (45:24, 55:1-9, 17-22). However she did understand if she failed to control

       the ATV and it hit something, she could be injured. (56:8-13).



       {¶ 20} In her deposition, appellant stated she could not recall if she told appellee

Shannon Schneider she had called and received permission to ride the ATV. K.D. depo.

at 28. Prior to riding the ATV, appellant told appellee Shannon Schneider, "I am not sure

just how do you ride this thing; I have never rode this before." Id. at 56. She stated

appellee Shannon Schneider told her, "[i]t's easy, like, you know, Justin just showed you

how to maneuver and stuff, and that's when Justin showed me how - - just like lightly

showed me how, and then that's when we rode." Id. at 57. Although she claimed to have

trouble steering the ATV, she did not tell appellee Justin Schneider because she thought

"it was just my fault***I thought I could fix it, I guess, yeah." Id. at 49. Appellant observed
Fairfield County, Case No. 16-CA-27                                                       12

appellee Shannon Schneider out in the yard while she was operating the ATV. Id. at 57-

59, 70. She agreed at all times when appellee Shannon Schneider was outside observing

her operating the ATV, "there was nothing to indicate anything other than [her] operating

safely and in full control." Id. at 71.

       {¶ 21} After reviewing all of the submitted statements, the trial court concluded the

facts "do not raise a genuine issue as to any material fact relating to whether Defendants'

actions were reckless or intentional" and therefore, "reasonable minds can come to only

one conclusion that is adverse to the Plaintiff." We concur with the trial court's analysis.

We do not find any evidence rising to the level of "reckless" or "intentional" conduct.

                               NEGLIGENT ENTRUSTMENT

       {¶ 22} In Gulla v. Straus, 154 Ohio St. 193, 93 N.E.2d 662 (1950), paragraphs

three, four, and five of the syllabus, the Supreme Court of Ohio held the following:



               3. The owner of a motor vehicle may be held liable for an injury to a

       third person upon the ground of negligence if the owner knowingly, either

       through actual knowledge or through knowledge implied from known facts

       and circumstances, entrusts its operation to an inexperienced or

       incompetent operator whose negligent operation results in the injury.

               4. Where an owner entrusts his motor vehicle to one who must

       appear to him to be wholly incompetent by reason of mental or physical

       disability to operate the vehicle, such as being of tender age, mentally

       deficient, physically deformed or intoxicated, or who for any cause is known

       to the owner to be an incompetent driver, the responsibility of the owner will
Fairfield County, Case No. 16-CA-27                                                      13


       follow the continued operation of the vehicle even though such operation be

       beyond the scope of permission.

              5. In an action against the owner of a motor vehicle for injury arising

       from its entrustment for operation, the burden is upon the plaintiff to

       establish that the motor vehicle was driven with the permission and authority

       of the owner; that the entrustee was in fact an incompetent driver; and that

       the owner knew at the time of the entrustment that the entrustee had no

       driver's license, or that he was incompetent or unqualified to operate the

       vehicle, or had knowledge of such facts and circumstances as would imply

       knowledge on the part of the owner of such incompetency.



       {¶ 23} In her deposition, appellant admitted she was provided with instructions on

how to operate the ATV. K.D. depo. at 45, 57. She had been operating the ATV or was

a passenger for approximately two to three hours before running into the tree. Id. at 51.

At one point, appellant ran into a thorn bush because she "couldn't steer right." Id. at 51-

52. She insisted on continuing to drive because "I thought I could do it again. Like, I

thought I could handle it this time." Id. at 54. She did not ask Amber or appellee Justin

Schneider for additional instructions on how to control and operate the accelerator,

brakes, and steering. Id. at 67-68. She told them, "I'm going to go fast; I want to see how

fast I can go." Id. at 69. Appellant admitted before hitting the tree, she was looking down

at the speedometer, watching it go from thirty, to forty, and then fifty. Id. at 71-72. She

saw the tree, but could not stop in time and could not steer around it. Id. at 73-75.
Fairfield County, Case No. 16-CA-27                                                     14


       {¶ 24} We find, as did the trial court, no evidence was presented to establish that

appellees knew appellant was "incompetent or unqualified" to operate the ATV, or "had

knowledge of such facts and circumstances as would imply knowledge" on the part of

appellees of appellant's incompetence. Gulla, supra.

       {¶ 25} After reviewing all of the evidence presented for summary judgment

purposes, the trial court concluded "there is no genuine issue as to any material fact

whether either Defendant, Shannon Schneider or Justin Schneider, negligently entrusted

the ATV to Plaintiff in this case." We concur with the trial court's analysis.

       {¶ 26} Upon review, we find the trial court did not err in granting summary judgment

to appellees.

       {¶ 27} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Wise, John, J. concur.




EEW/sg 407
