[Cite as Simmons v. Quarry Golf Club, L.L.C., 2016-Ohio-525.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

KEITH SIMMONS, ET AL.                                     JUDGES:
                                                          Hon. William B. Hoffman, P.J.
        Plaintiffs-Appellants                             Hon. Patricia A. Delaney, J.
                                                          Hon. Craig R. Baldwin, J.
-vs-
                                                          Case No. 2015CA00143, 2015CA00148
THE QUARRY GOLF CLUB, LLC,
ET AL.
                                                          OPINION
        Defendants-Appellees




CHARACTER OF PROCEEDING:                              Appeal from the Stark County Common
                                                      Pleas Court, Case No. 2014CV02312


JUDGMENT:                                             Reversed and Remanded

DATE OF JUDGMENT ENTRY:                               February 9, 2016

APPEARANCES:

For Plaintiff-Appellant                               For Defendants-Appellees
Keith Simmons                                         Quarry Golf Club, LLC, Et Al.

ALLEN SCHULMAN                                        JAMES J. REAGAN
STACIE L. ROTH                                        Staff Counsel for the Cincinnati Ins. Co.
Allen Schulman & Associates                           50 South Main St.
236 Third Street, SW                                  Suite 615
Canton, Ohio 44702                                    Akron, Ohio 44308


For Plaintiff-Appellant
Rhonda Simmons

BRIAN L. ZIMMERMAN
229 Third Street, NW, Suite 200
Canton, Ohio 44702
Stark County, Case No. 2015CA00143, 2015CA00148                                           2

Hoffman, P.J.

         {¶1}   In Stark County App. Case No. 2015CA00143, plaintiff-appellant Keith

Simmons appeals the July 28, 2015 Judgment Entry entered by the Stark County Court

of Common Pleas, which granted summary judgment in favor of defendants-appellees

the Quarry Golf Club, LLC, et al. In Stark County App. Case No. 2015CA00148, plaintiff-

appellant Rhonda Simmons appeals the same entry with respect to her loss of consortium

claim.

                            STATEMENT OF THE FACTS AND CASE

         {¶2}   Appellees own the Quarry Golf Course located in Canton, Ohio. The golf

course was constructed in 2005, and opened in the fall of 2006. The original layout of

the golf course included a bunker, or sand trap, on hole #4. A drain was placed on the

outside perimeter of the bunker in order to prevent the sand from eroding. The drain inlet

was 12 inches wide, and approximately 30 inches deep, and was covered with a cast iron

lid. The bunker at hole #4 was eliminated in 2007. The bunker area was converted into

a rough. In doing so, the sand was removed, the soil was roughed, and native grasses

were planted. With the passing of a number of years, the area where the bunker had

been located became a natural rough with grass growing nearly waist high. Appellees no

longer maintained the area.

         {¶3}   On July 19, 2011, Appellant Keith Simmons, who golfed two to three times

per week, was playing at the golf course in his weekly league. Jeff Moon was Appellant

Keith Simmons’ playing partner that day. At hole #4, Moon hit his drive to the right off the

tee and into the natural rough area described above. Appellant Keith Simmons went into

the rough to help search for Moon's ball. After several minutes, Appellant Keith Simmons
Stark County, Case No. 2015CA00143, 2015CA00148                                          3


found Moon's ball. As Appellant Keith Simmons proceeded to return to the golf cart, he

stepped into the uncovered drain. Moon later testified Appellant Keith Simmons did not

trip or fall over and go down, rather "[h]e just disappeared...went straight down in the

hole." Deposition of Jeffrey Moon at 22. Moon added, "His leg, from the crotch, all the

way down, was in the hole." Id. Appellant Keith Simmons required assistance to get out

of the drain hole. As a result of the incident, Appellant Keith Simmons suffered injuries

to his shoulder, leg, and back.

       {¶4}   Appellants filed a Complaint against the Quarry Lake Golf Club on July 11,

2013. Appellants subsequently amended the complaint to name Appellees the Quarry

Golf Club and GGP Development Co. - The Quarry Golf Club, LLC as the defendants.

Appellees filed a timely answer to the amended complaint. Appellants later voluntarily

dismissed the case without prejudice.

       {¶5}   On October 6, 2014, Appellant Keith Simmons refiled the Complaint in Stark

County Court of Common Pleas Case No. 2014-CV-02312. Appellees filed a timely

answer. On November 11, 2014, Appellant Rhonda Simmons, through separate counsel,

filed a motion to intervene as a party plaintiff. The trial court granted Appellant Rhonda

Simmons' motion to intervene on December 2, 2014. Appellant Rhonda Simmons filed

her intervening complaint on December 19, 2014. Appellees filed a timely answer to the

intervening complaint.

       {¶6}   Appellees filed a motion for summary judgment on June 2, 2015, arguing

the doctrine of primary assumption of the risk barred Appellants' claims. Appellees further

argued, even if Appellants' claims were not barred by the doctrine of the primary

assumption of the risk, Appellants could not prove Appellees were responsible for the
Stark County, Case No. 2015CA00143, 2015CA00148                                              4


missing drain cover or Appellees knew the cover was missing. Appellant Keith Simmons

filed a memorandum contra. Appellant Rhonda Simmons did not file a responsive brief.

Appellees filed a reply in support of summary judgment.

       {¶7}   Via Entry filed July 28, 2015, the trial court granted summary judgment in

favor of Appellees. The trial court found "the fact that a ball may take flight in an

unintended direction and end up in an area off of the golf course is a risk inherent to the

sport." July 28, 2015 Entry at 4.1 The trial court concluded Appellant Keith Simmons

assumed the risk by searching for the golf ball which was buried in the grass in an area

which was unmaintained by Appellees. The trial court further found, even if the primary

assumption of the risk doctrine did not apply, Appellees were still entitled to summary

judgment as Appellants failed to establish Appellees knew or should have known the

uncovered drain hole existed or Appellees were responsible for the missing drain cover.

       {¶8}   It is from this Judgment Entry, Appellants appeal. In Stark County App.

Case No. 2015CA00143, Appellant Keith Simmons raises the following as error:

       {¶9}   I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY

FINDING THAT THE PRIMARY ASSUMPTION OF THE RISK DOCTRINE APPLIED TO

RELIEVE APPELLEE FROM LIABILITY.

       {¶10} II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY

FINDING THE APPELLEE DID NOT BREACH ITS DUTY TO APPELLANT, WHEN

GENUINE ISSUES OF MATERIAL FACT REMAINED AS TO WHETHER APPELLEE




1 While being struck by a golf ball hit in an unintended direction is an inherent risk while
participating in the game of golf, the act of hitting a golf ball in an unintended direction is
not a “risk” inherent to the sport, but rather is a frequent occurrence which rarely results
in injury.
Stark County, Case No. 2015CA00143, 2015CA00148                                              5


FAILED     TO   INSPECT      ITS    GOLF     COURSE       TO    DISCOVER       DANGEROUS

CONDITIONS; AND WHETHER APPELLEE SHOULD HAVE KNOWN THAT AN

UNCOVERED DRAIN EXISTED.

       {¶11} III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

BY FINDING APPELLEE DID NOT BREACH ITS DUTY TO APPELLANT, WHEN

GENUINE ISSUES OF MATERIAL FACT REMAINED AS TO WHETHER APPELLEE

WAS RESPONSIBLE FOR THE MISSING DRAIN COVER.

       {¶12} In Stark County App. No. 2016CA00148, Appellant Rhonda Simmons

adopts the assignments of error raised by Appellant Keith Simmons.

                                     SUMMARY JUDGMENT

       {¶13} Civ. R. 56 states in pertinent part:

       {¶14} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that there

is no genuine issue of material fact and that the moving party is entitled to judgment as a

matter of law. No evidence or stipulation may be considered except as stated in this rule.

A summary judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or

stipulation construed mostly strongly in the party's favor. A summary judgment,

interlocutory in character, may be rendered on the issue of liability alone although there

is a genuine issue as to the amount of damages.”
Stark County, Case No. 2015CA00143, 2015CA00148                                              6


        {¶15} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co. (1981), 67 Ohio St.2d 427, 424 N.E.2d

311. The court may not resolve any ambiguities in the evidence presented. Inland Refuse

Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc. (1984), 15 Ohio St.3d 321, 474 N.E.2d

271. A fact is material if it affects the outcome of the case under the applicable substantive

law. Russell v. Interim Personnel, Inc. (6th Dist.1999), 135 Ohio App.3d 301, 733 N.E.2d

1186.

        {¶16} When reviewing a trial court's decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc. (1987), 30 Ohio St.3d 35, 506 N.E.2d 212. This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d 1243.

        {¶17} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party's claim. Drescher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.

Once the moving party meets its initial burden, the burden shifts to the nonmoving party

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.

The non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle    (12th Dist. 1991), 75 Ohio App.3d 732, 600 N.E.2d 791.
Stark County, Case No. 2015CA00143, 2015CA00148                                            7


                                                 I

       {¶18} In their first assignment of errors, Appellants contend the trial court erred in

granting summary judgment in favor of Appellees based upon a finding the doctrine of

primary assumption of the risk barred Appellants’ claims. We agree.

       {¶19} In order to establish a cause of action for negligence, a plaintiff must

demonstrate (1) the defendant owed a duty of care to the plaintiff; (2) the defendant

breached that duty; and (3) the plaintiff suffered injury proximately caused by the

defendant's breach of duty. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d

75, 77, 472 N.E.2d 707. When a defendant shows, however, the plaintiff assumed the

risk of injury through participating in an inherently dangerous activity, the duty of care is

eliminated. Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 431,

659 N.E.2d 1232. Primary assumption of risk is a defense of extraordinary strength

because it essentially means “that no duty was owed by the defendant to protect the

plaintiff from that specific risk,” so a “court must proceed with caution when contemplating

whether primary assumption of risk completely bars a plaintiff's recovery.” Id.

       {¶20} In Ohio, the doctrine of primary assumption of risk applies to recreational or

sport activities. “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 [2 Restatement of the Law 2d, Torts, Section 500, and 1 Restatement of the

Law 2d, Torts, Section 8A (1965) ].” Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559

N.E.2d 699, syllabus. “Primary assumption of the risk relieves a recreation provider from

any duty to eliminate the risks that are inherent in the activity * * * because such risks
Stark County, Case No. 2015CA00143, 2015CA00148                                            8

cannot be eliminated.” Whisman v. Gator Invest. Properties, Inc., 149 Ohio App.3d 225,

236, 2002–Ohio–1850 (1st Dist.). “The types of risks associated with [an] activity are

those that are foreseeable and customary risks of the * * * recreational activity.” Pope v.

Willey, Clermont App. No. CA2004–10–077, 2005–Ohio–4744, ¶ 11.

       {¶21} The test for applying the doctrine of primary assumption of the risk to

recreational activities and sporting events requires: (1) the danger is ordinary to the game;

(2) it is common knowledge the danger exists; and (3) the injury occurs as a result of the

danger during the course of the game. Santho v. Boy Scouts of Am., 168 Ohio App.3d

27, 857 N.E.2d 1255, 2006–Ohio–3656, ¶ 12

       {¶22} The trial court found Appellant Keith Simmons primarily assumed the risk

by searching for the golf ball which was buried in the grass in an area unmaintained by

Appellees. The trial court further found searching for one’s golf ball in the rough is

inherent to the game. In the game of golf, the average player does not always hit the ball

in a straight flight. And, much to this writer’s chagrin, the ball does not always go where

the golfer intends or hopes for it to go –often into the rough. While we agree with the trial

court there are inherent risks associated with playing golf (such as being hit by an errant

shot by another golfer) as well as inherent risks associated with walking into a natural

rough area to search for a stray ball, we find falling into a large uncovered drain hole is

not one of the foreseeable or inherent risks of the game of golf nor is it a danger ordinary

to or which commonly exists in the game of golf. One may foresee a rabbit hole in a

natural area, but not an uncovered drain hole. Because Appellant Keith Simmons’ fall

into the drain hole was not foreseeable or an inherent risk of the game, we find the trial
Stark County, Case No. 2015CA00143, 2015CA00148                                         9


court erred in finding Appellants’ claims were barred by the doctrine of primary

assumption of the risk doctrine.

      {¶23} Appellants’ first assignment of error is sustained.

                                             II, III

      {¶24} In their second assignments of error, Appellants assert the trial court erred

in granting summary judgment in favor of Appellees based upon its finding Appellees did

not breach its duty to Appellant Keith Simmons as genuine issues of material fact remain

as to whether Appellees inspected the golf course to discover dangerous conditions and

whether Appellees should have known the uncovered drain existed.            In their final

assignments of error, Appellants maintain the trial court erred in granting summary

judgment in favor of Appellees based upon its finding Appellee did not breach its duty to

Appellant Keith Simmons as genuine issues of material fact remain as to whether

Appellees were responsible for or had constructive knowledge of the missing drain cover.

We agree.

      {¶25} A property owner owes its business invitees a duty of ordinary care to

maintain the premises in a reasonably safe condition and to warn of hidden dangers.

Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 480 N.E.2d 474. The owner

“must also inspect the premises to discover possible dangerous conditions of which he

does not know, and take reasonable precaution to protect the invitee from dangers which

are foreseeable from the arrangement or use.” Perry v. Eastgreen Realty Co. (1978), 53

Ohio St.2d 51, 52, 372 N.E.2d 335.

      {¶26} In a premises-liability action, the plaintiff can prove the defendant's breach

of duty by establishing that (1) the defendant, through its officers or employees, was
Stark County, Case No. 2015CA00143, 2015CA00148                                             10


responsible for the hazard; (2) the defendant had actual knowledge of the hazard and

neglected to promptly remove it or give adequate notice of its presence; or (3) the hazard

existed for a sufficient length of time to reasonably justify the inference that the failure to

remove it or warn against it was attributable to a lack of ordinary care. Johnson v. Wagner

Provision Co. (1943), 141 Ohio St. 584, 589, 49 N.E.2d 925.

       {¶27} The record reveals when the golf course was originally constructed in 2005,

a bunker was located at hole #4. In order to prevent sand erosion, a drain was installed

on the perimeter of the bunker. After the bunker was eliminated in 2007, Appellees

transformed the area into what was described as a deep rough, but the drain was never

removed or filled in. Appellees were aware the drain remained in the area. Appellees

acknowledged the drain covers throughout the course would dislodge periodically.

Although Appellees did a visual inspection of the course each day, Appellees admitted a

check of the drains was not routinely conducted, and could not recall the date of the last

inspection of the drain at hole #4. Appellees conceded an uncovered drain hole was a

hidden dangerous condition.

       {¶28} We find a genuine issue of material fact exists as to whether Appellees

knew or should have known the hazardous condition at hole #4 existed. Appellees

created the condition which caused Appellant Keith Simmons’ injuries. Appellees are

aware golfers will wander into the rough to retrieve balls. Accordingly, we find the trial

court erred in granting summary judgment to Appellees upon a finding Appellees did not

owe a duty to Appellants to keep the golf course free of hazardous conditions as well as

a duty to inspect the course to discover any such conditions.

       {¶29} Appellants’ second and third assignments of error are sustained.
Stark County, Case No. 2015CA00143, 2015CA00148                                         11


      {¶30} The judgment of the Stark County Court of Common Pleas is reversed, and

the matter remanded for further proceedings consistent with this Opinion and the law.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
