[Cite as Hallier v. Hopkins, 2016-Ohio-2661.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


Dawn Hallier, et al.                                Court of Appeals No. S-15-024

        Appellant                                   Trial Court No. 14 CV 12

v.

Jeffery C. Hopkins, et al.                          DECISION AND JUDGMENT

        Appellees                                   Decided: April 22, 2016

                                                *****

        Amanda A. Krzystan, for appellant.

        Thomas M. Coughlin, Jr. and Theresa A. Sherman, for
        Appellee Patricia M. Bortel-Fishe.

        James W. Hart, for appellee Local Carpenters Union 2239.

                                                *****

        SINGER, J.

        {¶ 1} This appeal is before the court on the accelerated calender pursuant to 6th

Dist.Loc.App.R. 12.

        {¶ 2} In 2010, 13-year-old M.H. participated in a Labor Day parade in Fremont,

Ohio, by handing out candy to parade watchers. She retrieved the candy from a moving
float sponsored by the local carpenter’s union. She was injured during the parade when

the float ran over her feet as she was attempting to retrieve candy. Appellant, the mother

of M.H., filed a negligence action against appellees, Patricia Bortel-Fishe, driver of the

vehicle pulling the float and Local Carpenters Union 2239. Summary judgment was

granted to appellees. Appellant now brings this appeal.

       {¶ 3} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same

standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,

572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is

demonstrated

       (1) that there is no genuine issue as to any material fact; (2) that the moving

       party is entitled to judgment as a matter of law; and (3) 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, who is

       entitled to have the evidence construed most strongly in his favor. Harless

       v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46

       (1978), Civ.R. 56(C).

       {¶ 4} The open-and-obvious doctrine is premised upon the legal recognition that

one is put on notice of a hazard by virtue of its open and obvious character. Armstrong v.

Best Buy Co., Inc., 99 Ohio St.3d 79, 80, 2003-Ohio-2573, 788 N.E.2d 1088. “The

rationale behind the doctrine is that the open and obvious nature of the hazard itself




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serves as a warning. Thus, the owner or occupier may reasonably expect that persons

entering the premises will discover those dangers and take appropriate measures to

protect themselves.” Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597

N.E.2d 504 (1992).

       {¶ 5} The question of whether a danger is open and obvious is an objective one.

Goode v. Mt. Gillion Baptist Church, 8th Dist. Cuyahoga No. 87876, 2006-Ohio-6936,

2006 WL 3804534, ¶ 25. The fact that a plaintiff was unaware of the danger is not

dispositive of the issue. Id. Hence, a court must consider whether, in light of the specific

facts and circumstances of the case, an objective, reasonable person would deem the

danger open and obvious. See Stanfield v. Amvets Post No. 88, 2d Dist. Miami No.

06CA35, 2007-Ohio-1896, 2007 WL 1174445, ¶ 12.

       {¶ 6} M.H. testified that during the parade, she was walking next to the moving

float and would reach into the trailer to retrieve candy while the trailer was slowly

moving through the parade route. She did this a few times before she was injured. Thus,

it had to be obvious to her that there were moving wheels present. Appellant’s first

assignment of error is found not well-taken.

       {¶ 7} In her second assignment of error, appellant contends that the court erred in

finding that M.H. assumed the risk.

       {¶ 8} Under the doctrine of primary assumption of the risk, a plaintiff who

voluntarily engages in a recreational activity or sporting event assumes the inherent risks

of that activity and cannot recover for injuries sustained in engaging in the activity unless




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the defendant acted recklessly or intentionally in causing the injuries. Santho v. Boy

Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, 857 N.E.2d 1255, ¶ 12 (10th

Dist.). The doctrine is based on the fiction that the plaintiff has “tacitly consented” to the

risk of injury inherent in the activity. Collier v. Northland Swim Club, 35 Ohio App.3d

35, 37, 518 N.E.2d 1226 (10th Dist.1987). The rationale behind the doctrine is that

certain risks are so intrinsic in some activities that the risk of injury is unavoidable. Id.

       {¶ 9} In a case much like this one, the Fifth District Court of Appeals held:

              We find the activity of walking along a moving float, distributing

       candy to spectators, and refilling one’s supply of candy from a float that

       stops and starts throughout the parade, is an inherently dangerous activity

       from which risks cannot be eliminated. The specific dangerous activity was

       approaching the float near the exposed wheels that could start and stop as a

       result of parade traffic. Kinkade v. Noblet, 5th Dist. Richland No. 14CA4,

       2014-Ohio 3172, ¶ 18.

       {¶ 10} We agree with the Fifth District’s reasoning and apply it to our case

accordingly. Appellant’s second assignment of error is not well-taken.

       {¶ 11} The judgment of the Sandusky Court of Common Pleas is hereby affirmed,

and costs of this action are assessed to appellant pursuant to App.R. 24.


                                                                           Judgment affirmed.




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                                                                      Hallier v. Hopkins
                                                                      C.A. No. S-15-024




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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