[Cite as Arthur v. Spare Time Recreation, Inc., 2015-Ohio-3923.]


                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                 LAWRENCE COUNTY

ROCHELLE ARTHUR, et al.,           :   Case No. 14CA37
                                   :
        Plaintiffs-Appellants,     :
                                   :
        vs.                        :   DECISION AND JUDGMENT
                                   :   ENTRY
SPARE TIME RECREATION, INC., :
et al.,                            :
                                   :
        Defendants-Appellees.      :   Released: 09/18/15
_____________________________________________________________
                               APPEARANCES:

Jeremy M. Burnside, Portsmouth, Ohio, for Appellants.

John P. Petro, Williams & Petro Co., L.L.C., Columbus, Ohio, for
Appellees.
_____________________________________________________________

McFarland, A.J.

        {¶1} This is an appeal from a Lawrence County Common Pleas Court

decision granting summary judgment in favor Appellees, Spare Time

Recreation, Inc., et al. On appeal, Appellants contend that 1) the trial court

erred in granting summary judgment in favor of Appellees by ignoring

evidence of the dangerous condition of the floor and finding that no

reasonable juror could conclude that Appellees failed to maintain its

premises in a reasonably safe manner; 2) the trial court erred in granting

summary judgment in favor of Appellees because it inappropriately applied
Lawrence App. No. 14CA37                                                        2

the assumption of the risk doctrine; and 3) the trial court erred in granting

summary judgment in favor of Appellees, by ignoring the statutory duties set

forth in R.C. 4171.06.

      {¶2} Because there is undisputed evidence that Appellees were in

compliance with their operator duties as contained in R.C. 4171.06 and had

no knowledge, actual or constructive, of the floor defect complained of by

Appellants, there is no genuine issue of material of fact regarding whether

Appellees maintained their premises in a reasonably safe condition. In light

of this determination and applying the assumption of the risk principles

contained in R.C. 4171.09 and 4171.10, Appellants' claims fail as a matter of

law. As such, we cannot conclude that the trial court erred in granting

summary judgment in favor of Appellees. Accordingly, Appellants'

assignments of error, all of which challenge the trial court's grant of

summary judgment, are overruled and the decision of the trial court is

affirmed.

                                    FACTS

      {¶3} Appellants, Rochelle Arthur, et al., filed a complaint against

Appellees, Spare Time Recreation, Inc., et al., on January 15, 2013, alleging

negligence on the part of Appellees for failing to maintain its premises in a
Lawrence App. No. 14CA37                                                                                   3

reasonably safe condition.1 Appellant more specifically alleged that an

unsafe hole or crack in the floor caused her to fall while roller skating and

that she sustained serious personal injury as a result. The record indicates

that Appellant was attending a cub scout function held at Spare Time

Recreation, Inc. with her son on January 17, 2011, when the incident

occurred. Appellee, Spare Time Recreation, Inc. is an entertainment facility

that offers bowling, roller skating and laser tag.

         {¶4} As the matter proceeded through the discovery process,

Appellant testified during her deposition that as she was skating with her

son, the front left wheel on her right skate went down into a hole or a ridge,

which caused her to fall. She testified that she saw no imperfection in the

floor prior to her fall, but that afterwards she noticed a ridge, or something

dark on the floor. She testified that because she could not see the area well,

she could not describe it in more detail. Although she took no photos on the

night of the incident, she did hire private investigator, Eddie Jenkins, to take

photos after the incident occurred. Jenkins testified in his deposition that he

went to Spare Time Recreation some time in March of 2011 and took photos

of the skating rink floor, nearly two months after the incident at issue

occurred. Jenkins' photos depict some areas of the floor which he testified

1
 Hereinafter Appellants and Appellees will be referred to in singular form, referring to Rochelle Arthur
and Spare Time Recreation, Inc., respectively.
Lawrence App. No. 14CA37                                                        4

were damaged when he was there, however, they do not depict the condition

of the skating rink floor on January 17, 2011.

      {¶5} David Lucas, Ph.D., boy scout troop scout master, was also

deposed. He was present on the evening the incident occurred and actually

witnessed Appellant's fall as he was skating approximately fifteen to twenty

feet behind her. When asked whether there were any defects in the floor in

the area where Appellant fell, he testified "No. None at all." He testified

that the lighting was good at the time of the fall and that he went over and

spent three to four minutes inspecting the floor after the fall and saw no

imperfections or debris in the floor that would have caused her to fall. Lucas

also testified that caution tape was up in another area of the floor due to a

roof leak, but that was not the area in which Appellant fell.

      {¶6} The owner, Jeff Dillow, and employees Michael Wood and

Michael Morgan were also deposed. Dillow testified that Michael Morgan

was the skateguard on duty the night of the incident and that the manager,

Michael Wood, was also present. Dillow testified that skateguards have a

responsibility to make daily inspections of the skating rink floor before each

skating session and that he personally goes over the floor at least two to

three times per week. He testified that there have been times when sections

of the floor have had to be "cordoned" off due to roof leaks. Manager
Lawrence App. No. 14CA37                                                         5

Michael Wood testified that if there are less than one hundred patrons, they

only have one skateguard on duty. He testified that the skateguard has to

check the floor before each session and that he was not aware of any

"ridges" or "rolls" in the floor on the date of the incident. When shown

photos taken by Jenkins of the alleged defects in the skating rink floor,

Wood repeatedly testified that whether the alleged defects were safety

concerns would depend on how deep the defects were and how smooth the

surface was, which could not be discerned from the photos.

      {¶7} Michael Morgan, the skateguard on duty at the time of the

incident, testified during his deposition that his duties, among other things,

include keeping an eye on the kids skating and keeping the skate floor clean.

When shown photos depicting alleged defects in the floor, he testified that

areas with seams, stains or paint peels were not concerning as the areas are

always sanded down and patched so that they are smooth. He testified areas

with peeled paint are not a concern as long as there are no paint chips

present. He testified that the floor is cleaned and swept regularly and that if

he becomes aware of any issues with the floor, such as paint chips, he will

clean it up before letting skaters back on the floor. He also testified that

after Appellant's fall, he went out and checked the floor where she fell and

could not find anything wrong. He then checked her skates to see if the
Lawrence App. No. 14CA37                                                         6

wheels were locked but they were not. Michael Morgan completed an

incident report related to Appellant's fall and indicated on the report that

Appellant told him she fell while helping her son.

      {¶8} Appellee moved the trial court for summary judgment on May

27, 2014, which was granted over the objection of Appellant on November

10, 2014. The trial court relied on Appellant's lack of specificity as to the

cause of her fall, coupled with the doctrine of assumption of the risk

associated with roller skating in issuing its decision. The trial court found

that, based upon the evidence before it, no reasonable juror could conclude

that Appellee failed to maintain its premises in a reasonably safe manner,

considering the nature of the activity involved. It is from this decision that

Appellants bring their timely appeal, assigning three errors for our review.

                        ASSIGNMENTS OF ERROR

“I.   THE TRIAL COURT ERRED IN GRANTING SUMMARY
      JUDGMENT IN FAVOR OF APPELLEE SPARE TIME
      RECREATION, INC. BY IGNORING THE EVIDENCE OF THE
      DANGEROUS CONDITION OF THE FLOOR AND FINDING
      THAT NO REASONABLE JUROR COULD CONCLUDE THAT
      THE DEFENDANT FAILED TO MAINTAIN ITS PREMISES IN A
      REASONABLY SAFE MANNER.

II.   THE TRIAL COURT ERRED IN GRANTING SUMMARY
      JUDGMENT IN FAVOR OF APPELLEE SPARE TIME
      RECREATION, INC., BECAUSE IT INAPPROPRIATELY
      APPLIED THE ASSUMPTION OF THE RISK DOCTRINE.
Lawrence App. No. 14CA37                                                        7

III.   THE TRIAL COURT ERRED IN GRANTING SUMMARY
       JUGMENT IN FAVOR OF APPELLEE SPARE TIME
       RECREATION, INC., BY IGNORING THE STATUTORY DUTIES
       SET FORTH IN O.R.C. 4171.06.”

                            LEGAL ANALYSIS

       {¶9} Because Appellant's assignments of error all challenge the trial

court's grant of summary judgment, we address them in conjunction with

one another. Appellant contends that the trial court erred in granting

summary judgment in favor of Appellee, arguing that the trial court ignored

evidence of a dangerous condition on the floor, ignored the statutory duties

set forth in R.C. 4171.06, and inappropriately applied the assumption of the

risk doctrine. We begin by considering the appropriate standard of review

when reviewing the grant or denial of summary judgment.

                  SUMMARY JUDGMENT STANDARD

       {¶10} Appellate courts conduct a de novo review of trial court

summary judgment decisions. See, e.g., Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate

court must independently review the record to determine if summary

judgment is appropriate and need not defer to the trial court's decision. See

Brown v. Scioto Bd. of Commrs, 87 Ohio App.3d 704, 711, 622 N.E.2d 1153

(4th Dist. 1993); Morehead v. Conley, 75 Ohio App.3d 409, 411-12, 599

N.E.2d 786 (4th Dist. 1991). Thus, to determine whether a trial court
Lawrence App. No. 14CA37                                                     8

properly granted a summary judgment motion, an appellate court must

review the Civ.R. 56 summary judgment standard, as well as the applicable

law.

       Civ.R. 56(C) provides, in relevant part, as follows:

       "* * * Summary judgment shall be rendered forthwith if the

       pleadings, depositions, answers to interrogatories, written

       admissions, affidavits, transcripts of evidence in the pending

       case, and written stipulations of fact, if any, timely filed in the

       action, show that there is no genuine issue as to any 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 most strongly in the party's favor."

       {¶11} Thus, pursuant to Civ.R. 56, a trial court may not award

summary judgment unless the evidence demonstrates that: (1) no genuine
Lawrence App. No. 14CA37                                                          9

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) reasonable minds can come

to but one conclusion, and after 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. See, e.g., Vahila v. Hall,

77 Ohio St.3d 421, 429-30, 674 N.E.2d 1164 (1997).

      {¶12} Under Civ.R. 56, the moving party bears the initial burden to

inform the trial court of the basis for the motion, and to identify those

portions of the record that demonstrate the absence of a material fact.

Vahila, supra; Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264

(1996). The moving party cannot discharge its initial burden under the rule

merely with a conclusory assertion that the nonmoving party has no

evidence to prove its case. See Kulch v. Structural Fibers, Inc., 78 Ohio

St.3d 134, 147, 677 N.E.2d 308 (1997); Dresher, supra. Rather, the moving

party must specifically refer to the “pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence in the

pending case, and written stipulations of fact, if any,” which affirmatively

demonstrate that the nonmoving party has no evidence to support the

nonmoving party's claims. Civ.R. 56(C); Dresher, supra.
Lawrence App. No. 14CA37                                                       10

      {¶13} “[U]nless a movant meets its initial burden of establishing that

the nonmovant has either a complete lack of evidence or has an insufficient

showing of evidence to establish the existence of an essential element of its

case upon which the nonmovant will have the burden of proof at trial, a trial

court shall not grant a summary judgment.” Pennsylvania Lumbermans Ins.

Corp. v. Landmark Elec., Inc., 110 Ohio App.3d 732, 742, 675 N.E.2d 65

(2nd Dist. 1996). Once the moving party satisfies its burden, the nonmoving

party bears a corresponding duty to set forth specific facts showing that there

is a genuine issue for trial. Civ.R. 56(E); Dresher, supra. A trial court may

grant a properly supported summary judgment motion if the nonmoving

party does not respond, by affidavit or as otherwise provided in Civ.R. 56,

with specific facts showing that there is a genuine issue for trial. Id.; Jackson

v. Alert Fire & Safety Equip., Inc., 58 Ohio St.3d 48, 52, 567 N.E.2d 1027

(1991).

                                NEGLIGENCE

      {¶14} A successful negligence action requires a plaintiff to establish

that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant

breached the duty of care; and (3) as a direct and proximate result of the

defendant's breach, the plaintiff suffered injury. See, e.g., Texler v. D.O.

Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 217 (1998); Jeffers
Lawrence App. No. 14CA37                                                      11

v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio

Welding Products, Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). If a

defendant points to evidence to illustrate that the plaintiff will be unable to

prove any one of the foregoing elements, and if the plaintiff fails to respond

as Civ.R. 56 provides, the defendant is entitled to judgment as a matter of

law. See Lang v. Holly Hill Motel, Inc., 4th Dist. Jackson No. 06CA18,

2007-Ohio-3898, ¶ 19, affirmed, 122 Ohio St.3d 120, 2009-Ohio-2495, 909

N.E.2d 120.

                  APPLICATION OF R.C. CHAPTER 4171

      {¶15} R.C. 4171.05, entitled "Legislative finding of need for safety

standards" provides as follows with respect to roller skating:

      "The general assembly acknowledges that the recreational sport

      of roller skating is practiced by a large number of citizens of

      Ohio, provides a wholesome and healthy family activity which

      should be encouraged, and significantly contributes to the

      economy of this state. The general assembly further

      acknowledges that roller skating as a recreational sport can be

      hazardous to roller skaters and that minimal safety standards

      for, and duties and responsibilities of, operators and roller

      skaters are in the public interest."
Lawrence App. No. 14CA37                                                   12

      {¶16} R.C. 4171.06, entitled "Duties of operators" provides, in

pertinent part, as follows: "Each operator shall: * * * (C) Maintain the

skating surface in a reasonably safe and clean condition and inspect the

skating surface before each session[.]" Further, R.C. 4171.07 entitled "Floor

supervisors" provides, as follows:

      "Each operator shall maintain at least one floor supervisor on

      duty for every one hundred seventy-five roller skaters when the

      roller skating rink is open for sessions. The floor supervisor

      shall be in a position to observe the skate floor and shall

      monitor activity on the skate floor and be available to assist

      skaters in understanding and adhering to the responsibilities of

      roller skaters set forth in section 4171.08 of the Revised Code.

      The floor supervisor shall comply with the duties of a floor

      supervisor as defined by the roller skating rink operators of

      America or its successor organization, including directing

      traffic and assisting roller skaters who may fall or sustain

      injuries. The floor supervisor also shall issue warnings,

      reprimands, or penalties to roller skaters upon their violation of

      the responsibilities set forth in section 4171.08 of the Revised

      Code."
Lawrence App. No. 14CA37                                                       13

      {¶17} Thus, considering the negligence principles set forth above,

roller skating rink operators, such as Spare Time Recreation, have a statutory

duty to maintain the skating surface in a reasonably safe and clean condition

and must inspect the skating surface before each session. Breach of such a

duty which proximately results in injury constitutes negligence. As set forth

above, there is undisputed evidence in the record indicating that Appellee

discharged its duties under R.C. 4171.06 by conducting regular and

recurring inspections of the floor, two to three times a week, every weekend

and before each skate session. There is further evidence that on the night in

question, there was a skateguard, or floor supervisor, on duty for the party

that only consisted of about thirty people, including both the adults and

children.

      {¶18} There is further undisputed evidence in the record that after

Appellant fell, no defect in the floor could be identified visually. Appellant

herself testified that she did not see an imperfection before she fell but rather

felt it. Although she testified she saw a dark spot on the floor afterwards,

she could not describe the size or depth of it. Contrary to Appellant's

testimony, both David Lucas and Michael Morgan testified that they closely

inspected the area of the floor where Appellant fell immediately after her fall

and found no imperfection or debris that would have caused Appellant to
Lawrence App. No. 14CA37                                                        14

fall. Although photos appear in the record, taken by a private investigator

approximately two months after the incident in question, it cannot be said

that the photos depict the floor on the night of the incident. When

questioned about alleged floor defects depicted in the photographs, Spare

Time Recreation management and personnel consistently stated that

maintenance was done as needed and routinely, that when aware of a safety

issue, such as water due to a roof leak or other issue they would barricade

off areas of the floor, and that they were not concerned about the areas

depicted in the photos, as any repaired areas were sanded until smooth.

      {¶19} Thus, even construing the evidence in a light most favorable to

Appellant and assuming that her skate wheel did fall into a ridge or

indention in the floor, because it was unable to be identified upon inspection

even after the incident it does not appear that the imperfection in the floor

was an open and obvious hazard. Further, Appellant has submitted no

evidence that Appellee actually created the hazard or had knowledge of the

hazard. Instead, Appellant suggests Appellee should have known about the

hazard. However, based upon the undisputed evidence in the record,

including the fact that the alleged imperfection was not observed by

Appellant prior to the fall and could not be located by either Lucas or Spare

Time Recreation Staff after the fall, we disagree. There is no evidence in the
Lawrence App. No. 14CA37                                                      15

record that anyone had reported the alleged defect to Spare Time staff.

There is simply no evidence in the record that Spare Time staff had

knowledge of the defect but failed to remedy it.

      {¶20} The fact that another area of the floor was barricaded off that

night indicates that when aware of potential safety issues, Appellee acted to

avoid injury to patrons. At best, the evidence indicates that the alleged

defect was isolated and of unknown duration, possibly occurring during the

skating session. Further, because Appellant cannot dispute the evidence that

Appellee complied with its statutory duty to inspect the skate floor before

the skating session, she cannot meet her burden of showing that Appellee

failed to maintain the skating surface in a reasonably safe and clean

condition. Because Appellant is unable to prove a breach of duty by a

failure to comply with R.C. 4171.06(C), the doctrine of assumption of the

risk, which will be discussed more fully below, applies.

                       ASSUMPTION OF THE RISK

      {¶21} R.C. 4171.09 entitled " Express assumption of risk" provides as

follows:

      "The general assembly recognizes that roller skating as a

      recreational sport can be hazardous to roller skaters regardless

      of all feasible safety measures that can be taken. Therefore,
Lawrence App. No. 14CA37                                                 16

      roller skaters are deemed to have knowledge of and to expressly

      assume the risks of and legal responsibility for any losses,

      damages, or injuries that result from contact with other roller

      skaters or spectators, injuries that result from falls caused by

      loss of balance, and injuries that involve objects or artificial

      structures properly within the intended path of travel of the

      roller skater, which are not otherwise attributable to an

      operator's breach of his duties pursuant to sections 4171.06 and

      4171.07 of the Revised Code."

      {¶22} Further, R.C. 4171.10 entitled "Assumption of risk as defense;

comparative negligence" provides that:

      "The express assumption of risk set forth in section 4171.09 of

      the Revised Code shall serve as a complete defense in a tort or

      other civil action against an operator by a roller skater for

      injuries resulting from the assumed risks of roller skating. The

      comparative negligence or other tort provisions of sections

      2315.32 to 2315.36 of the Revised Code shall not apply unless

      the operator has breached the operator's duties pursuant to

      sections 4171.06 and 4171.07 of the Revised Code."
Lawrence App. No. 14CA37                                                       17

      {¶23} Caselaw on this topic generally indicates that hazards that are

not open and obvious, and that were either created or known by skating rink

operators are not risks that are assumed by skating rink patrons. See

generally, William Clements, et al. v. Skate 9H Realty, Inc., et al., 277

A.D.2d 614, 714 N.Y.S.2d 836, 2000 N.Y. App. Div. LEXIS 11342

(assumption of the risk doctrine applied to hole in skating floor that was

open and obvious); Alfred F. Schmidt v. State of New York, 198 Misc. 802,

100 N.Y.S.2d 504, 1950 N.Y. Misc. LEXIS 2145 (skater did not assume any

risk from an unsafe condition of the rink of which he had no knowledge, but

which might reasonably have been anticipated by the proprietor of the rink,

specifically a protruding metal strip that had protruded in the past); Elizabeth

B. Neirman, et al. v. Casino Arena Attractions, Inc., et al., 46 N.J. Super.

566, 135 A.2d 210, 1957 N.J. Super. LEXIS 436 (liability found as a result

of generally deteriorated condition of ice and distinguishing from cases

involving an isolated defect of unknown duration). Skating rink patrons also

do not assume the risks stemming from the breach of operator duties.

Ronald Vaughn v. Riverside Arena, Inc., 2006 Mich. App. LEXIS 3705

(skater did not assume risk of injury as a result of a puddle on the floor, the

existence of which employees had been repeatedly notified but failed to

remedy).
Lawrence App. No. 14CA37                                                         18

      {¶24} However, caselaw further generally indicates that absent

demonstration of a breach of operator duties, the assumption of the risk

doctrine applies. See generally, Nicole L. Gallihugh v. United Skates of

America, 10th Dist. Franklin No. 99AP-624, 2000 WL 423979 (April 20,

2000) (skater assumed risk of fall due to loss of balance due to alleged

improperly fitted skates); Hey v. Skateworld, Inc., et al., 2nd Dist.

Montgomery No. 16941, 1998 WL 698368 (Oct. 9, 1998) (skating rink

found not liable due to compliance with duties contained in R.C. 4171.07

and holding that skating rink did not and could not, in the exercise of

ordinary care, know of the danger at issue.)

      {¶25} Based on the foregoing, including that 1) Appellee

demonstrated its compliance with the duties contained in R.C. Chapter 4171;

2) Appellant cannot demonstrate breach of Appellee's statutory duties; 3)

there is no evidence indicating Appellee either created the alleged floor

defect or knew or reasonably should have known of its existence; and 4) it

appears that the defect in the floor, if it existed, was an isolated defect of

unknown duration, we conclude that summary judgment in favor of

Appellee was warranted. In the absence of a breach of operator duties on the

part of Appellee, the doctrine of assumption of the risk acts as a complete
Lawrence App. No. 14CA37                                                      19

defense to Appellant's claims. Accordingly, the assignments of error raised

by Appellant are overruled and the decision of the trial court is affirmed.

                                                JUDGMENT AFFIRMED.
Lawrence App. No. 14CA37                                                       20

                           JUDGMENT ENTRY


      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellants.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Lawrence County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J. & Harsha, J.: Concur in Judgment Only.



                                       For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland,
                                     Administrative Judge



                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
