[Cite as Young v. Eagle, 2017-Ohio-7211.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




AALIYAH YOUNG, A Minor By and                      :
Through Her Natural Parent and                           CASE NO. CA2016-09-063
and Guardian, Chasity Fussner, et al.,             :
                                                               OPINION
        Plaintiffs-Appellants,                     :            8/14/2014

                                                   :
   - vs -
                                                   :

THOMAS EAGLE, et al.,                              :

        Defendants-Appellees.                      :




       CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                           Case No. 2014CVH00982


Henry D. Acciani, 600 Vine Street, Suite 1600, Cincinnati, Ohio 45202, for plaintiffs-
appellants

Linn & Grendell, Douglas Linn, 7588 Central Parke Boulevard, Suite 227, Mason, Ohio
45040, for defendant-appellee, Thomas Eagle

McCaslin, Imbus & McCaslin, Thomas J. Gruber, 900 Provident Bank Building, 632 Vine
Street, Cincinnati, Ohio 45202, for defendants-appellees, Paul A. Eagle and Joan C. Eagle



        M. POWELL, J.

        {¶ 1} Appellant Aaliyah Young, a minor, appeals the decision of the Clermont County

Court of Common Pleas granting summary judgment in favor of Thomas Eagle, Paul Eagle,

individually and in his capacity as trustee, and Joan Eagle (collectively "the Eagles").
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       {¶ 2} In 2012, Jerry Young, Aaliyah's father, was living with Thomas at Thomas'

home in Loveland, Ohio. Paul, Thomas' father, was the trustee of a trust that owned the

home. Joan is Paul's wife and Thomas' mother but otherwise has no connection to this case.

       {¶ 3} On a day in July 2012, Aaliyah's mother, Chasity Fussner, brought four-year-old

Aaliyah and her sister Ebony to Thomas' home so that Jerry could spend time with his

children. Aaliyah and Ebony were playing outside and Jerry was monitoring them. The two

children asked their father if they could play on a tricycle that was in the home's garage.

Young gave his daughters permission to play on the tricycle.

       {¶ 4} The tricycle is larger than a typical children's tricycle. Similar in appearance to

a bicycle, it has a metal frame, pedals, a chain and sprockets, and what appear to be bicycle

size tires. There is a wooden platform behind the driver's seat with enough room for a small

person to stand on. The tricycle's rear axle is positioned immediately next to and on the

same level as the standing platform. The rear sprocket and chain are unguarded.

       {¶ 5} Thomas purchased the tricycle at a garage sale in approximately 2000. He

bought it for his daughter, who was then five years old. Neighborhood children rode the

tricycle and anyone was free to use it. Thomas could not recall any child ever suffering an

injury while using the tricycle.

       {¶ 6} Aaliyah and Ebony played with the tricycle for about 20 minutes before the

accident occurred. Ebony was pedaling while Aaliyah stood behind her on the platform.

Aaliyah stepped off the platform. She was unsteady and reached down to balance herself.

Aaliyah's hand touched the unguarded rear sprocket and chain and she suffered serious

injuries, requiring the amputation of several fingers.

       {¶ 7} In July 2014, Aaliyah, through Chasity as her legal guardian, and Chasity,

individually, filed suit against the Eagles. The first count of the complaint alleged that the

Eagles breached a duty of care owed to Aaliyah in failing to remove the tricycle from the
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property, which Aaliyah alleged was a dangerous instrumentality, a dangerous condition, and

an attractive nuisance. The second count alleged that the Eagles designed or constructed

the tricycle, that the design was defective and dangerous, and that the design proximately

resulted in Aaliyah's injuries. The third count set forth a derivative claim by Chasity alleging

lost wages, medical expenses and other damages related to the Eagles' negligence.

       {¶ 8} Thomas moved for summary judgment, as did Paul and Joan, separately.

Thomas supported his motion with his affidavit, which averred that he purchased the tricycle

as described at the garage sale and had not made any modifications to it. Thomas further

averred that in the time he owned the tricycle many children had used it without injury.

Thomas did not witness the accident and he did not give Aaliyah permission to use the

tricycle.

       {¶ 9} The trial court granted summary judgment in favor of the Eagles. With respect

to the first count of the complaint, the court concluded that the tricycle was neither a

dangerous instrumentality per se nor a dangerous instrumentality as used by Aaliyah. The

court found that the attractive nuisance doctrine was inapplicable because Aaliyah was not a

trespasser at the home. Finally, the court found that Aaliyah was engaged in a recreational

activity when injured, that she assumed the risk of any injury, and that she failed to produce

facts showing that the Eagles acted recklessly or intentionally with respect to her injuries.

The court dismissed the second count of the complaint because the plaintiffs failed to

produce facts demonstrating that the Eagles designed or constructed the tricycle. The court

also dismissed the complaint's third count because it was derivative of and dependent upon

the first two causes of action.

       {¶ 10} Aaliyah assigns one error for our review.

       {¶ 11} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR ALL

APPELLEES.
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       {¶ 12} Aaliyah raises two issues within her assignment of error. First, Aaliyah argues

that the court should not have shielded the Eagles from liability under the primary assumption

of risk doctrine because the Eagles were not participants in the recreational activity. Second,

Aaliyah contends that the court erred in not applying the attractive nuisance doctrine.

       {¶ 13} An appellate court reviews a trial court's decision on a motion for summary

judgment de novo, i.e., we review independently and without deference to the decision of the

trial court. Flagstar Bank, FSB v. Sellers, 12th Dist. Butler No. CA2009-11-287, 2010-Ohio-

3951, ¶ 7. Summary judgment is proper when there is no genuine issue of material fact

remaining for trial, the moving party is entitled to judgment as a matter of law, and reasonable

minds can only come to a conclusion adverse to the nonmoving party, construing the

evidence most strongly in that party's favor. See Civ.R. 56(C); Harless v. Willis Day

Warehousing Co., 54 Ohio St.2d 64, 66 (1978).

                              Claims against Paul and Joan Eagle

       {¶ 14} Before we address the merits of Aaliyah's arguments we first address her

claims against Paul, both individually and as trustee, and Joan. There are no facts in the

summary judgment record that would give rise to any theory of negligence against Paul and

Joan individually. Their only connection to this case is that they are Thomas' parents.

Consequently, we affirm the court's dismissal as to any claims related to Paul and Joan

individually.

       {¶ 15} There are also no facts in the summary judgment record that would support

liability against Paul in his capacity as trustee of the trust that owns the home. The Ohio

Supreme Court has stated that:

                the test to be applied in every case involving the liability of a
                property owner for injuries arising from the defective condition of
                premises under lease to another is whether the landowner was in
                possession or control of the premises, or the part thereof, the
                disrepair of which caused the injury. The lessor is not liable for
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                injuries to a third party in the absence of authority to exercise
                control over the premises to the exclusion of any control by the
                lessee. The control necessary as the basis for tort liability
                implies the power and the right to admit people to the premises
                and to exclude people from it, and involves a substantial exercise
                of that right and power.

Wills v. Frank Hoover Supply, 26 Ohio St.3d 186, 188 (1986). (Citations omitted.) In

determining issues of control between an owner and a tenant, "the logical starting point is the

lease." Carrozza v. Olympia Mgmt., 12th Dist. Butler Nos. CA96-11-228 and CA96-11-234,

1997 Ohio App. LEXIS 3896, *5-6 (Sept. 2, 1997).

        {¶ 16} The record reflects that there was no lease between the trust and Thomas.

Instead, the circumstances surrounding Thomas' use of the home are typical of that of a

parent attempting to safeguard property for an adult child with financial issues. Years earlier,

Paul purchased vacant land so that Thomas could build a home. Thomas built the home and

Paul later transferred him the title.     Thomas began borrowing against the home and

eventually transferred the home back to his father when he was experiencing financial

difficulties.

        {¶ 17} Ultimately, Paul transferred the home into a trust. Paul explained that he

wanted to ensure that Thomas had a place to live in the event Paul died because Thomas is

a spendthrift. Paul seldom visited the home, perhaps two or three times a year, and just to

see a grandchild. Based on the summary judgment record, we conclude that Paul as trustee

did not have possession or control of the home for purposes of imposing tort liability.

Accordingly, we affirm the trial court's dismissal of Paul as trustee.

                                  Primary Assumption of Risk

        {¶ 18} To establish a negligence claim, the plaintiff must demonstrate a duty owed by

the defendant to the plaintiff, a breach of that duty, and that the plaintiff's injury proximately

resulted from the defendant's breach of duty. McLoughlin v. Williams, 12th Dist. Clermont


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No. CA2015-02-020, 2015-Ohio-3287, ¶ 8. The trial court granted summary judgment in

favor of the Eagles, in part, because it found that Aaliyah was engaged in a recreational

activity and therefore assumed the risks inherent with riding a tricycle. Under the doctrine of

"primary assumption of risk," an individual who engages in a recreational activity assumes

the ordinary risks of that activity and cannot recover for injuries unless the defendant's

actions were either reckless or intentional. Wolfe v. AmeriCheer, Inc., 10th Dist. Franklin No.

11AP-550, 2012-Ohio-941, ¶ 14, citing Marchetti v. Kalish, 53 Ohio St.3d 95 (1990), syllabus.

"[A] successful primary assumption of risk defense means that the duty element of

negligence is not established as a matter of law." Gallagher v. Cleveland Browns Football

Co., 74 Ohio St.3d 427, 431-432 (1996).

       {¶ 19} The Ohio Supreme Court adopted the primary assumption of risk doctrine in

Marchetti, where the injured party and the alleged tortfeasor were both participants in a

recreational activity. Id. at syllabus. In a companion case, the court included spectators of

recreational activities within the scope of the rule. Thompson v. McNeill, 53 Ohio St.3d 102,

104 (1990). In a later case, the court concluded that the age of the injured participant or

spectator, and whether he or she could appreciate the inherent risks involved in the

recreation was immaterial to whether liability could attach. Gentry v. Craycraft, 101 Ohio

St.3d 141, 2004-Ohio-379, syllabus. Instead, an injured party must demonstrate that the

tortfeasor acted recklessly or intentionally. Id.

       {¶ 20} Aaliyah does not dispute that she was engaged in a recreational activity when

the injury occurred. Instead, she argues that the court should not have concluded that she

was barred from recovering from Thomas because he was not a participant in the tricycle

riding activity.

       {¶ 21} This court addressed and rejected the argument that primary assumption of risk

doctrine, which we referred to as the recreational liability exemption, bars recovery only from
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a defendant who participates in the activity. Whitaker v. Davis, 12th Dist. Warren No.

CA1996-07-060, 1997 Ohio App. LEXIS 287 (Jan. 27, 1997). We concluded that the

rationale underlying the recreational liability exemption could be extended to non-participants

because it would be illogical to require evidence of reckless or intentional conduct to recover

against participants in the activity, yet allow recovery against non-participant defendants

based on the lower standard of negligence. Id. at *8-9. Accordingly, we held that when a

party is injured during a recreational activity, he or she must demonstrate that the defendant

acted intentionally or recklessly. Id. at *9; see also Lykins v. Fun Spot Trampolines, 172 Ohio

App.3d 226, 2007-Ohio-1800, ¶ 33-34 (12th Dist.).

       {¶ 22} However, Aaliyah argues that the Ohio Supreme Court never explicitly

extended the rule set forth in Marchetti or its progeny to non-participants in the activity. This

is true. However, the court had no reason to do so because in each of those cases the

defendant was a participant.

       {¶ 23} Marchetti, Thompson, and Gentry do not compel us to reconsider this court's

holding in Whitaker. The recreational activity exemption is merely a specific iteration of

primary assumption of the risk to apply. As set forth in those Ohio Supreme Court cases, the

rationale of primary assumption of risk in the context of the recreational activity exemption is

that there are inherent risks in certain recreational activities such that injury may be

inevitable. If a person voluntarily engages in such an activity they consent to those risks.

The law therefore requires more culpability – reckless or intentional conduct – before liability

will attach. Thus, it is the plaintiff's status as a participant or spectator in a recreational

activity that determines whether the rule applies and not the defendant's status as a

participant.

       {¶ 24} While the Ohio Supreme Court has not had the opportunity to weigh in on this

precise issue, other courts of appeal have extended the primary assumption of risk doctrine
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to non-participant defendants. See Ochall v. McNamer, 10th Dist. Franklin No. 15AP-772,

2016-Ohio-8493; Drury v. Blackston, 3rd Dist. Allen No. 1-15-39, 2015-Ohio-4725; Curtis v.

Schmid, 5th Dist. Delaware No. 07 CAE 11 0065, 2008-Ohio-5239; Santho v. BSA, 168 Ohio

App.3d 27, 2006-Ohio-3656 (10th Dist.); Rees v. Cleveland Indians Baseball Co., 8th Dist.

Cuyahoga No. 84183, 2004-Ohio-6112; Bundschu v. Naffah, 147 Ohio App.3d 105, 2002-

Ohio-607 (7th Dist.); Karlovich v. Nicholson, 11th Dist. Lake No. 98-L-097, 1999 Ohio App.

LEXIS 4653. But see Bastian v. McGannon, 9th Dist. Lorain No. 07CA009213, 2008-Ohio-

1449, ¶ 17.

       {¶ 25} Finally, Aaliyah argues that that she could not have assumed the risks inherent

in riding a tricycle because she was four years old. However, the Ohio Supreme Court has

resolved that the age or maturity of an injured party is immaterial for purposes of the primary

assumption of risk doctrine. Gentry, 2004-Ohio-379, syllabus. Accordingly, we find that the

court did not err when it concluded that Aaliyah was barred from recovering against the

Eagles based on primary assumption of risk.

                                Attractive Nuisance Doctrine

       {¶ 26} Next, Aaliyah argues that the court erred in not applying the attractive nuisance

doctrine because the court found that she was not a trespasser at the home. The Ohio

Supreme Court adopted the attractive nuisance doctrine as enunciated in 2 Restatement of

the Law 2d, Torts, Section 339 (1965):

              1. A possessor of land is subject to liability for physical harm to
              children trespassing thereon caused by an artificial condition
              upon the land if:

              (a) the place where the condition exists is one upon which the
              possessor knows or has reason to know that children are likely to
              trespass, and

              (b) the condition is one of which the possessor knows or has
              reason to know and which he realizes or should realize will
              involve an unreasonable risk of death or serious bodily harm to
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             such children, and

             (c) the children because of their youth do not discover the
             condition or realize the risk involved in intermeddling with it or in
             coming within the area made dangerous by it, and

             (d) the utility to the possessor of maintaining the condition and
             the burden of eliminating the danger are slight as compared with
             the risk to children involved, and

             (e) the possessor fails to exercise reasonable care to eliminate
             the danger or to otherwise protect the children. * * *.

Bennett v. Stanley, 92 Ohio St.3d 35 (2001), syllabus.

      {¶ 27} Aaliyah argues that the court erred because the attractive nuisance doctrine

also applies to licensees and invitees based on 2 Restatement of the Law 2d, Torts, Section

343B, Comment b (1965), which provides:

             [w]here the child is not upon the land as a trespasser, but is a
             licensee or an invitee, the possessor of the land is no less
             obligated to anticipate and take into account his propensities to
             inquire into or to meddle with conditions which he finds on the
             land, his inattention, and his inability to understand or appreciate
             the danger, or to protect himself against it. Thus the rules stated
             in § 339, and the Comments and Illustrations to that Section, are
             equally applicable where the child is a licensee or an invitee.

However, the Ohio Supreme Court has not adopted Section 343B. Nonetheless, it would

make no difference in this case if the court had applied the attractive nuisance doctrine.

      {¶ 28} It is undisputed that Aaliyah was an invitee at Thomas' home. As an invitee,

Thomas owed Aaliyah the duty to: (1) exercise ordinary care not to cause her injury by any

act or by any activity while she is on the premises, and (2) to warn her of any known

dangerous condition, if Thomas had reason to believe that Aaliyah did not know and would

not discover such condition. See DiGildo v. Caponi, 18 Ohio St.2d 125, 128 (1969).

      {¶ 29} But if Aaliyah had been a trespasser on the property and the attractive nuisance

doctrine applied, she would have been entitled to the same heightened standard of care as

an invitee. Bennett, 92 Ohio St.3d 35, syllabus. Stated otherwise, Thomas would have had
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an obligation to exercise reasonable care to eliminate or warn her of any danger.

       {¶ 30} In this regard, the trial court found that the tricycle was not a dangerous

instrumentality. In doing so, the court noted that Aaliyah had not submitted any contrary

summary judgment evidence setting forth a genuine issue of material fact concerning the

level of danger posed by the tricycle. For instance, Aaliyah did not submit any expert

testimony concerning the design of the rear axle of the tricycle. Aaliyah did not appeal the

court's finding that the tricycle was not a dangerous instrumentality.

       {¶ 31} Aaliyah attempts to avoid the implications of failing to establish that the tricycle

was a dangerous instrumentality by arguing that under the attractive nuisance doctrine there

need not be a dangerous instrumentality, but only a foreseeable risk of danger. However, the

summary judgment record does not support the conclusion that the tricycle presented a

foreseeable risk beyond those risks inherent in riding a tricycle. First, the evidence showed

that the tricycle had been used for years without injury by Thomas' daughter and the

neighborhood children. Second, Aaliyah was using the tricycle under the direct supervision

of her father. Third, Aaliyah failed to submit any summary judgment evidence that the

tricycle's design presented a risk of injury beyond its inherent use. Accordingly, we find no

error in the court's decision with respect to the attractive nuisance doctrine. We therefore

overrule Aaliyah's assignment of error.

       {¶ 32} Judgment affirmed.


       S. POWELL, P.J. and PIPER, J., concur.




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