[Cite as Booth v. Walls, 2013-Ohio-3190.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY




SCOTT BOOTH, ET AL.,

        PLAINTIFFS-APPELLANTS,                            CASE NO. 7-12-23

        v.

ERIN WALLS, ET AL.,                                       OPINION

        DEFENDANTS-APPELLEES.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 10CV0174

                                     Judgment Affirmed

                              Date of Decision: July 22, 2013




APPEARANCES:

        Kent D. Riesen and Dennis A. Lyle for Appellants

        J. Mark Trimble and David C. Bruhl for Appellees
Case No. 7-12-23


ROGERS, J.

      {¶1} Plaintiffs-Appellants, Scott (“Scott”) and Julie (“Julie”) Booth, and

their minor daughter, Morgan Booth (“Morgan”) (collectively “the Booths”),

appeal the judgment of the Court of Common Pleas of Henry County, granting

summary judgment in favor of Defendants-Appellees, Erin (“Erin”) and Kathy

(“Kathy”) Walls, and their minor children, Chance (“Chance”) and Cassidy

(“Cassidy”) Walls (collectively “the Walls”). On appeal, the Booths contend that

the trial court committed the following errors: (1) granting summary judgment

based on an affirmative defense that the Walls did not plead, (2) granting summary

judgment in favor of the Walls on the basis that the claims against them were

barred under the primary assumption of the risk doctrine; and, (3) finding that

there was no genuine issue of material fact with respect to the claims of reckless

conduct against Erin and Kathy. For the reasons that follow, we affirm the trial

court’s judgment.

      {¶2} On August 23, 2010, the Booths filed a complaint (“Original

Complaint”) against the Walls seeking recovery for damages stemming from

injuries Morgan suffered when she was struck by the throwing arm of a clay target

throwing machine (“target machine”), which, was owned by the Walls and

installed on their property at the time of the accident. The Booths’ Original

Complaint asserted five claims: (1) common law premises liability; (2) common


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law negligence; (3) negligent supervision; (4) “ultra hazardous conditions”; and

(5) loss of consortium. (Docket No. 1, p. 5).

       {¶3} On October 13, 2010, the Walls filed their answer (“Original

Answer”), wherein they denied the allegations set forth in the Booths’ complaint,

and asserted three specific defenses: (1) the Booths were contributorily negligent;

(2) the Booths failed to join necessary and indispensable parties to their action;

and (3) the Booths failed to mitigate their damages. In addition to these specific

defenses, the Walls also “reserve[d] the right to add to their answer and to rely on

all affirmative defenses as may be hereafter disclosed by way of discovery.”

(Docket No. 11, p. 6).

       {¶4} In addition to answering the Booths’ Original Complaint, the Walls

filed a counterclaim against Scott and Julie and a third-party complaint against

their minor son, Nathan Booth (“Nathan”).          In their counterclaim, the Walls

asserted that Scott and Julie negligently supervised the activities of their children,

and that Morgan’s injuries were a direct and proximate result of their negligent

supervision. As a result, the Walls sought “contribution and indemnification”

from Scott and Julie in the event they are found liable. (Id. at p. 7). In their third-

party complaint, the Walls asserted that Nathan negligently operated the target

machine, and that Morgan’s injuries were a direct and proximate result of

Nathan’s negligent operation of the target machine. As a result, the Walls sought


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“contribution and indemnification” from Nathan in the event they are found liable.

(Id. at p. 8).

        {¶5} On November 30, 2010, the Booths filed their answer to the Walls’

counterclaim. On December 10, 2010, Nathan filed his answer to the Walls’ third-

party complaint.

        {¶6} On November 30, 2011, the Booths moved for leave to file an

amended complaint, which the trial court granted. The Booths filed their amended

complaint (“Amended Complaint”) on December 28, 2011. In it, the Booths

reasserted all of their original claims, with the exception of “ultra hazardous

conditions.” The Booths also narrowed the scope of two of their original claims.

First, the Booths limited their claim of premises liability to Erin and Kathy.

Second, the Booths limited their claim of common law negligence to Chance and

Cassidy. Finally, The Booths asserted two new claims against the Walls: (1)

negligent entrustment; and, (2) recklessness.

        {¶7} On January 12, 2012, the Walls filed their answer to the Amended

Complaint (“Second Answer”) in which they denied the allegations set forth in the

Booths’ Amended Complaint.        The Walls’ Second Answer also asserted five

specific defenses. Three of the defenses were asserted in the Walls’ Original

Answer, to wit: contributory negligence, failure to join necessary and

indispensable parties, and failure to mitigate damages.     In addition to these


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defenses, the Walls asserted that the Booths’ claims were barred because the

“[Booths] were recreational users”, and that the Booths’ amended complaint “fails

to bring lawful claims pursuant to Civil Rule 11 and R.C. 2323.51[.]” (Docket No

46, p. 15). Further, the Walls again “reserve[d] the right to add to their answer and

to rely on all affirmative defenses as may be hereafter disclosed by way of

discovery.” (Id.). Finally, and in addition to answering the Booths’ Amended

Complaint, the Walls reasserted their counterclaim against Scott and Julie, as well

as their third-party complaint against Nathan.

       {¶8} On January 25, 2012, the Booths filed their answer to the Walls’

counterclaim. On February 17, 2012, Nathan filed his answer to the Walls’ third-

party complaint.

       {¶9} During discovery, everyone present at the Walls’ residence on the day

of the accident was deposed. The following relevant evidence was adduced during

the depositions.

       {¶10} In 2007, the Walls purchased a parcel of land located at M235

County Road 2, McClure, Ohio (“the McClure property”).             The property is

bordered by farmland and a road, and features a residence with an attached garage,

several outbuildings, and a pond. Subsequent to purchasing the McClure property,

but prior to Morgan’s accident, Erin installed a metal pole on his property near the

pond. Erin then affixed a clay target throwing machine onto the metal pole. As a


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result, the bottom of the target machine was elevated approximately three feet off

the ground. According to Erin, he placed the target machine on the pole so that

the clay targets would clear the pond on his property. To operate the target

machine an individual must cock the throwing arm back till it locks in place, load

a clay target in the throwing arm, and pull a string to release the throwing arm,

which, consequently, swings forward and launches the clay target into the air.

        {¶11} On August 24, 2008, Scott, Morgan, and Nathan traveled to the

Walls’ residence for a cookout.1 Shortly after arriving, Kathy suggested that the

children, including Chance and Cassidy,2 trap shoot using the target machine

installed on the Walls’ property. All of the children had some experience shooting

trap and were familiar with how the Walls’ target machine operated. Despite the

children’s experience, Kathy testified that she instructed the children on how to

safely operate the target machine.3 In particular, Kathy recalled instructing the

children to never walk away from the target machine when the throwing arm was

cocked and never stand in front of the target machine.

        {¶12} During the cookout, Scott, Morgan, Nathan, Chance, and Cassidy

each took turns shooting trap. Scott shot for a short period of time. After he

finished shooting, Scott retired to the Walls’ garage where he and Erin watched


1
  On the day of the accident, Morgan and Nathan were 14 and 11 years old, respectively.
2
  On the day of the accident, Chance and Cassidy were 14 and 13 years old, respectively.
3
  Chance and Cassidy each confirmed that Kathy instructed all of the children how to safely operate the
target machine. No such testimony was elicited from either Morgan or Nathan during their depositions.

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NASCAR. All of the parents consumed beer prior to the accident. In particular,

Erin testified that Scott had 10-12 beers before the accident, while Kathy testified

that she had two. Kathy, however, maintained that none of the parents were

intoxicated at the time the accident occurred. From their location in the garage,

Scott and Erin could observe the children shooting. While Scott and Erin were

watching NASCAR, Kathy was preparing the food. Although Kathy was busy

preparing food for the cookout, she testified that she watched the children shoot

for a majority of the activity.

       {¶13} The children shot trap for approximately one hour. Accounts of who

operated the target machine varied. According to Morgan and Nathan, neither of

them cocked the throwing arm, loaded it, or pulled the string to release it. Instead,

both testified that Chance and Cassidy exclusively operated the target machine.

Chance and Cassidy acknowledged that they operated the target machine, but did

not do so exclusively.      Moreover, Chance and Cassidy testified that Nathan

operated the target machine on several occasions. Nevertheless, both also agreed

that Morgan never operated the target machine on the day of the accident. Kathy,

on the other hand, testified that all of the children took turns operating the target

machine.

       {¶14} When the food was ready, the children ceased shooting. Before the

children ate, they stored their guns in the garage and returned outside to gather


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unbroken clay targets and spent shells. Accounts of who participated in the clean-

up varied. According to Morgan and Nathan, all of the children went into an

adjoining field to gather unbroken clay targets and then returned to where they

were shooting to gather spent shells. Conversely, Chance and Cassidy testified

that Nathan did not accompany them and Morgan into the field. Though Cassidy

did not recall where Nathan was while the rest of the children were in the field

gathering unbroken clay targets, Chance testified that Nathan remained in the

vicinity of the target machine.

       {¶15} The accident occurred while the children were gathering spent shells

around the target machine. Each child testified that they did not realize that the

target machine’s throwing arm was cocked while they were gathering spent shells.

Similarly, each child, as well as their parents, testified that they did not know who

last cocked the throwing arm before the accident.        Immediately prior to the

accident, Morgan, Chance, and Cassidy were standing in front of and to the side of

the target machine gathering spent shells, while Nathan stood behind the target

machine.    As the children were gathering spent shells, Morgan and Kathy

observed Nathan playing with the string used to trigger the throwing arm. Despite

their observations, neither of them said anything to Nathan. Nathan’s actions

subsequently caused the throwing arm to release. The throwing arm narrowly

missed Chance and struck Morgan, who was standing in front of the target


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machine gathering spent shells, in the face. At the time of the accident all of the

parents were in the garage, and none of them observed the accident. Due to the

severity of her injury, Morgan was taken to the hospital and has since undergone

several surgeries.

       {¶16} On January 30, 2012, the Walls filed a motion for summary

judgment. In it, the Walls expressly argued that the Booths could not recover on

their claims of negligence because they (the Walls) are immune from liability

under R.C. 1533.181, the recreational user immunity statute. The Walls also

indirectly argued that recovery was barred under the primary assumption of the

risk doctrine. The Walls further argued that there were no genuine issues of

material fact concerning the Booths’ claims of recklessness, and that, as a matter

of law, none of their actions were reckless.

       {¶17} Attached to the Walls’ motion for summary judgment was a picture

of the target machine that injured Morgan, as well as affidavits of Cassidy and

Chance Walls.        Cassidy’s and Chance’s affidavits contained the following

averments: (1) they, Morgan, and Nathan were each shooting clay pigeons on the

day Morgan was injured; (2) after running out of clay pigeons, they and Morgan

left the area where the target machine was located and proceeded into the field to

collect unbroken clay pigeons; (3) Nathan remained near the target machine when

they and Morgan went into the field; (4) the target machine’s throwing arm was


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not cocked when they went into the field; (5) after collecting clay pigeons in the

field, they proceeded to pick-up empty shell casings near the target machine; (6)

Morgan was injured while picking up shell casings; and, (7) neither of them

cocked the throwing arm.

       {¶18} On February 23, 2012, the Booths filed a memorandum in opposition

to the Walls’ motion for summary judgment. In it, the Booths first addressed the

scope of the Walls’ arguments in support of their motion for summary judgment.

Specifically, the Booths noted that the Walls appeared to argue that the claims of

negligence were barred under the primary assumption of the risk doctrine. The

Booths argued that the Walls could not assert that defense since it was not

pleaded, and “reserve[d] the right to later respond in the event [the Walls] later

assert[ed] [the] defense.” (Docket No. 68, p. 3). Thereafter, the Booths argued

that the immunity provision under R.C. 1533.181 does not apply, and that there

are genuine issues of material fact concerning their claims of recklessness.

       {¶19} On March 12, 2012, the Walls filed a reply to the Booths’

memorandum in opposition. In relevant part, the Walls expressly argued that the

primary assumption of the risk doctrine bars the Booths’ claims of negligence.

       {¶20} On March 23, 2012, the Booths filed a sur-reply. In relevant part, the

Booths claimed that the “[Walls] did not raise an assumption of risk argument in

their Motion for Summary Judgment.” (Docket No. 76, p. 9). As a result, the


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Booths’ asserted that “the court should dismiss any defense relating to assumption

of risk[.]” (Id.) Notwithstanding this assertion, the Booths proceeded to address

the application of the primary assumption of the risk doctrine. In doing so, they

argued that the defense does not bar their claims of negligence because Morgan

was injured after the recreational activity had ceased, and that being struck by the

arm of the target machine is not an inherent risk of cleaning up the area around the

target machine.

       {¶21} On April 2, 2012, the Walls filed a response to the Booth’s sur-reply.

In relevant part, the Walls argued that the primary assumption of the risk doctrine

was properly before the trial court for two reasons. First, the Walls noted that they

raised the defense in their motion for summary judgment. Second, the Walls

noted the similarity between the immunity provision under R.C. 1533.181 and the

primary assumption of the risk doctrine.

       {¶22} On April 13, 2012, the trial court filed its opinion addressing the

Walls’ motion for summary judgment. In it, the trial court found that “[t]here

remains a genuine issue of fact as to whether the property being used was

residential or nonresidential for purposes of the recreational immunity statute,

[R.C. 1533.181].” (Docket No. 78, p. 4). Consequently, the trial court declined to

grant summary judgment on that basis.




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        {¶23} Next, the trial court considered whether the Booths’ claims of

negligence were barred under the primary assumption of the risk doctrine. As an

initial matter, the trial court considered whether the defense was properly raised by

the Walls. The trial court noted that Walls did not “expressly set forth primary

assumption of the risk as a defense” in their pleadings. (Id.). Despite this fact, the

trial court determined that it could consider the defense because: (1) the Walls

“reserve[d] the right * * * to add and raise any defense which may be revealed by

way of discovery” in their pleadings; (2) the Walls cited to Marchetti v. Kalish, 53

Ohio St.3d 95 (1990), a seminal case involving primary assumption of the risk, in

their motion for summary judgment; and, (3) the Booths argued against the

application of the defense. (Id.).

        {¶24} Having determined that it could consider the affirmative defense of

primary assumption of the risk, the trial court proceeded to consider whether the

Booths’ claims of negligence were barred by the defense. The trial court found

that “[a]fter construing the evidence in a fashion most strongly in the [Booths’]

favor * * * reasonable minds can come to but one conclusion. That conclusion is

that Morgan Booth was engaged in a recreational activity when she was injured[,]

and[, as a result,] any claims of negligence against the [Walls] cannot be

sustained.”4 (Id. at p. 5).


4
  We note that the trial court did not expressly address whether being hit by the target machine’s throwing
arm was an inherent risk of cleaning the area surrounding the target machine.

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       {¶25} Finally, the trial court considered whether there were any genuine

issues of material fact concerning the Booths’ claims of recklessness.           With

respect to Chance and Cassidy, the trial court found that their actions do not “rise

to the level of reckless disregard[.]” (Id. at p. 6). As a result, the trial court

concluded that there were no genuine issues of material fact concerning the

Booths’ claims of recklessness against Chance and Cassidy. With respect to Erin

and Kathy, the trial court noted that the “[Booths] base much of their reckless

claim on the fact that Erin Walls and Kathy Walls consumed alcohol.” (Id. at p.

7). The trial court, however, found that “nothing in the record * * * links the

alcohol consumption to a specific act or failure to act that would rise to the level of

* * * reckless conduct.” (Id.). As a result, the trial court concluded that there

were no genuine issues of material fact concerning the Booths’ claims of

recklessness against Erin and Kathy.

       {¶26} On May 14, 2012, the trial court filed its judgment entry granting

summary judgment in favor of the Walls.

       {¶27} On June 7, 2012, the matter was appealed to this court. On June 19,

2012, this court found that the judgment entry was a non-final order, and therefore

dismissed the appeal for want of jurisdiction.

       {¶28} On June 28, 2012, the Booths filed a motion seeking reconsideration

of the trial court’s April 13, 2012 opinion and the corresponding May 14, 2012


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judgment entry. Specifically, the Booths sought reconsideration of the trial court’s

determination that their claims of negligence were barred under the primary

assumption of the risk doctrine. The Booths argued that since the Walls failed to

appropriately plead that affirmative defense, the trial court was precluded from

considering the same.     As a result, the Booths requested that the trial court

reconsider its decision, without consideration of the primary assumption of the risk

doctrine.

       {¶29} On July 9, 2012, the Walls filed a motion for leave to file an

amended answer to the Booths’ Amended Complaint. On July 10, 2012, the trial

court granted the Walls’ motion for leave. That same day, the Walls filed their

amended answer (“Amended Answer”). In addition to reasserting the defenses

contained in their Second Answer, the Walls asserted, for the first time, that the

Booths’ “claims are barred by the doctrine of primary assumption of the risk.”

(Docket No. 86, p. 15).

       {¶30} On July 19, 2012, the Booths filed a motion seeking reconsideration

of the trial court’s decision to grant the Walls leave to file their Amended Answer.

In it, the Booths’ advanced two arguments in support of their motion for

reconsideration. First, the Booths argued that the trial court abused its discretion

when it granted the Walls’ motion for leave without affording them sufficient time

to respond to the Walls’ motion for leave. Second, the Booths argued that the


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Walls’ motion for leave is untimely, and therefore should be denied. That same

day, the trial court denied the Booths’ motion for reconsideration.

        {¶31} On September 25, 2012, the Walls filed a renewed motion for

summary judgment (“Renewed Motion for Summary Judgment”).                                    In it, they

reasserted the arguments contained in their original motion for summary

judgment, their reply to the Booths’ memorandum in opposition, and their

response to the Booths’ sur-reply.

        {¶32} On October 3, 2012, the Booths filed a memorandum in opposition

to the Walls’ renewed motion for summary judgment.

        {¶33} On October 15, 2012, the Walls filed a reply to the Booths’

memorandum in opposition to their renewed motion for summary judgment.

        {¶34} On November 2, 2012, the trial court granted summary judgment in

favor of the Walls, and dismissed the Walls’ counterclaim against the Booths and

their third-party complaint against Nathan.5

        {¶35} The Booths filed this timely appeal, presenting the following

assignments of error for our review.

                                    Assignment of Error No. I

        THE TRIAL COURT ERRED WHEN IT GRANTED THE
        DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY

5
  As a matter of course, we note that the trial court did not rule on the Booths’ motion for reconsideration
filed on June 28, 2012. When a trial court fails to rule on a motion, the appellate court will presume the
trial court overruled the motion. Seff v. Davis, 10th Dist. No. 03AP-159, 2003-Ohio-7029, ¶ 16.
Consequently, we presume that the trial court overruled the Booths’ motion for reconsideration.

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       JUDGMENT BASED ON AN AFFIRMATIVE DEFENSE
       WHICH HAD NOT BEEN PLED.

                            Assignment of Error No. II

       ASSUMING ARGUENDO THAT THE ASSUMPTION OF
       THE RISK DEFENSE WAS TIMELY RAISED, SUMMARY
       JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

                           Assignment of Error No. III

       THE TRIAL COURT ERRED WHEN IT FOUND THAT
       THERE WAS NO GENUINE ISSUE OF MATERIAL FACT
       AS TO THE CLAIMS OF RECKLESS CONDUCT AGAINST
       THE DEFENDANTS-APPELLEES ERIN WALLS AND
       KATHY WALLS.

                             Assignment of Error No. I

       {¶36} In their first assignment of error, the Booths contend that the trial

court erred when it granted summary judgment in favor of the Walls based on an

affirmative defense they did not plead, i.e., primary assumption of the risk. We

disagree.

                           Pleading Affirmative Defenses

       {¶37} Civ.R. 8(C) governs the pleading of affirmative defenses and

provides, in relevant part, that “[i]n pleading to a preceding pleading, a party shall

set forth affirmatively * * * assumption of risk * * *.” (Emphasis added.).

“Assumption of risk” includes primary assumption of the risk. See Gallagher v.

Cleveland Browns Football Co., 74 Ohio St.3d 427, fn. 3 (1996) (suggesting that

the phrase “assumption of risk” in Civ.R. 8(C) encompasses primary assumption

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of the risk); see also Harris v. Armco Steel Corp., 5th Dist. No. 94-CA-28-2 (Aug.

18, 1994). Consequently, primary assumption of the risk is an affirmative defense.

        {¶38} “Affirmative defenses other tha[n] those listed in Civ.R. 12(B) are

waived if not raised in the pleadings or in an amendment to the pleadings.” Jim’s

Steak House, Inc., v. Cleveland, 81 Ohio St.3d 18, 20 (1998), citing Civ.R. 8 and

15. Primary assumption of the risk is not listed in Civ.R. 12(B). Therefore, in

order for the Walls to avoid waiver of the defense, they must have either raised the

defense in their pleadings, pursuant to Civ.R. 8(C), or in an amendment to their

pleadings, pursuant to Civ.R. 15. Id.

        {¶39} Civ.R. 15 governs the amendment of pleadings.                               Under the

provisions of the rule, “an answer [may] be amended once ‘as a matter of course’

within [28] days after it is served, provided that the action has not been placed on

the trial calendar. Thereafter, an answer may only be amended with the written

consent of an adverse party or after obtaining leave of court.” Hoover v. Sumlin,

12 Ohio St.3d 1, 4 (1984), modified on other grounds by Jim’s Steak House,

supra, citing Civ.R. 15(A). Whenever a party requests leave for an amendment,

trial courts should “freely give[]” it “when justice so requires.” Civ.R. 15(A).6

Since Civ.R. 15(A) “allows for liberal amendment, the granting of such motion
6
  We note that Civ.R. 15(B) provides another means by which a party’s pleadings may be amended. The
rule provides, in relevant part, that “[w]hen issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if they had been raised in the
pleadings.” Civ.R. 15(B). The rule, however, only applies where the matter has proceeded to trial. E.g.,
Miller v. Lima, 3d Dist. No. 1-83-57 (Aug. 23, 1985). Since this matter did not go to trial, the Walls
answer could not be amended pursuant to Civ.R. 15(B).

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should not be disturbed on appeal absent showing of bad faith, undue delay, or

undue prejudice to the party who opposed the motion.” Billerman v. Moorman, 3d

Dist. No. 10-01-14 (Mar. 18, 2002).

       {¶40} Here, the Walls did not expressly assert primary assumption of the

risk as a defense in their Original Answer or their Second Answer. Rather, they

did not specifically plead the defense until they filed their Amended Answer with

leave of court. Nevertheless, primary assumption of the risk became a critical

issue in this matter when the Walls filed their first motion for summary judgment.

       {¶41} In their motion for summary judgment, the Walls cited Shaner v.

Smoot, 7th Dist. No. 712 (Oct. 12, 2001), which extensively focuses on the

primary assumption of the risk doctrine. Further, the Walls cited Marchetti v.

Kalish, 53 Ohio St.3d 95 (1990), which discusses, in depth, the defense of primary

assumption of the risk as it applies to minors involved in recreational activities.

The Booths responded by recognizing that the Walls “alluded to some other

theories and defenses.” (Docket No. 68, p. 3).

       {¶42} Based on the parties’ extensive discussion of primary assumption of

risk in these pleadings, we find that starting with the first round of summary

judgment proceedings, the Booths were on notice that the Walls intended to use

the doctrine as a defense. Further, by this point in the proceedings, the parties had

already developed a factual record on this issue through the depositions and other


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discovery. As a result, when the Walls moved for leave to amend their answer, the

Booths were neither caught by surprise nor were they precluded from developing a

factual record that opposed the assumption of the risk defense. See Hoover, 12

Ohio St.3d at 6 (finding that the plaintiffs “were not prejudiced by the addition of

the [affirmative] defense as they faced no obstacles by the amendment which they

would not have faced had the original pleading raised the defense”). In light of

these facts, we are unable to find that the trial court’s granting of leave unfairly

prejudiced the Booths. Moreover, the Booths have not argued how the Walls’

request for leave was made in bad faith or caused undue delay. Consequently, we

find that the trial court did not abuse its discretion by allowing the Walls to file the

Amended Answer.

       {¶43} Accordingly, we overrule the Booths’ first assignment of error.

                             Assignment of Error No. II

       {¶44} In their second assignment of error, the Booths argue that the trial

court erred when it granted summary judgment for the Walls. Specifically, they

contend that the assumption of the risk doctrine is inapplicable because the

recreational activity had ceased at the time of injury, and the injury was not an

inherent risk associated with the recreational activity. We disagree.




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                               Standard of Review

      {¶45} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.

1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distrib. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d

217, 222 (1994). Summary judgment is appropriate when, looking at the evidence

as a whole: (1) there is no genuine issue as to any material fact, and (2) the

moving party is entitled to judgment as a matter of law. Civ.R. 56(C).          In

conducting this analysis the court must determine “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, [the nonmoving] party being

entitled to have the evidence or stipulation construed most strongly in the

[nonmoving] party’s favor.” Id. If any doubts exist, the issue must be resolved in

favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-

59 (1992).

      {¶46} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of


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material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support that argument.

Id. at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; and may not rest on the mere allegations or

denials of the pleadings. Id.; Civ.R. 56(E).

                       Negligence & Primary Assumption of the Risk

        {¶47} To prevail in a negligence action, the plaintiff must show that (1) the

defendant owed a duty of care to the plaintiff; (2) the defendant breached that

duty; and (3) the defendant’s breach proximately caused the plaintiff to be injured.

Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565 (1998). The existence of

a duty in a negligence action is a question of law for the court to decide.7

Brewster v. Fowler, 11th Dist. No. 99-T-0091 (Oct. 13, 2000) citing Mussivand v.

David, 45 Ohio St.3d 314, 318 (1989).

        {¶48} Primary assumption of the risk is applied in cases where there is no

duty owed by the defendant to the plaintiff. See Gallagher v. Cleveland Browns

Football Co., 74 Ohio St.3d 427 (1996); Cincinnati Base Ball Club Co. v. Eno,

112 Ohio St. 175 (1925). Whether to apply primary assumption of the risk is a

matter of law for the court to decide. Crace v. Kent State Univ., 185 Ohio App.3d


7
 The trial court did not consider whether the Walls owed a duty to the Booths and the Walls did not argue
whether a duty existed in their Motion for Summary Judgment; therefore, we will not address the issue.

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534, 2009-Ohio-6898, ¶ 12 (10th Dist.). Since “‘a successful primary assumption

of risk defense means that the duty element of negligence is not established as a

matter of law, the defense prevents the plaintiff from even making a prima facie

case.’” Wolfe v. Bison Baseball Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶

21, quoting Gallagher, at 432.

         {¶49} In order to succeed on a primary assumption of the risk defense, it

must be shown that (1) the danger is ordinary to the activity; (2) there is common

knowledge that the danger exists; and (3) that the injury occurs as a result of the

danger during the course of the activity. Santho v. Boy Scouts of Am., 168 Ohio

App.3d 27, 2006-Ohio-3656, ¶ 12 (10th Dist.).            Thus, “[a] plaintiff who

reasonably chooses to proceed in the face of a known risk is deemed to have

relieved defendant of any duty to protect him.” Siglow v. Smart, 43 Ohio App.3d

55, 59 (9th Dist. 1987). The courts have adopted this doctrine on the basis of “the

notion that certain risks are so inherent in some activities that they cannot be

eliminated.” Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.

1987).

                        Recreational Activity & Inherent Risk

         {¶50} Where individuals participate 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


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‘intentional.’” Marchetti v. Kalish, 53 Ohio St.3d 95, 100 (1990). “Whether the

activity is organized, unorganized, supervised or unsupervised is immaterial to the

standard of liability.” Id. at 98. Clearly, target shooting is a recreational activity,

which the Booths do not dispute. Instead, the Booths contend that the recreational

activity of target shooting had ceased at the time of Morgan’s injury, and also that

her injury was not an inherent risk associated with target shooting.

       {¶51} Looking at the facts in the light most favorable to the Booths, we

find that the injury occurred during the course of the recreational activity and that

the injury was a result of an inherent risk of target shooting. There is conflicting

testimony whether the children had intended to stop shooting for the day or

whether they had planned to return to shoot more clay pigeons at a later time.

Assuming the children were done shooting for the day, the recreational activity

was still ongoing at the time of Morgan’s injury.

       {¶52} The activity of target shooting did not abruptly end when the children

finished shooting the clay pigeons. Several witnesses testified in their depositions

that the activity was not over until the spent shells and clay pigeons were cleaned

up and put away. For instance, Erin testified that it was normal to pick up the clay

pigeons you missed and reuse them at a later time. Moreover, Chance testified

that after the shooting is complete, it is typical to pick everything up and put the

equipment away. Specifically, he elaborated that it was standard to first pick up


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Case No. 7-12-23


the clay pigeons and then to pick up the shells. Kathy also testified that when her

family is done with target shooting that it is customary to detach the thrower off of

the pole and to bring it inside. Morgan’s injury occurred while they were picking

up the spent shells around the target machine.         Therefore, Morgan’s injury

occurred during the recreational activity.

       {¶53} Further, the danger associated with the target machine arm is an

inherent risk of target shooting. All the children testified they knew that the target

machine could pose as a risk when the throwing arm was cocked. The inherent

risk of being hit by the target machine’s arm when it is cocked does not disappear

just because the guns were put away. Rather, the risk is present so long as the

target machine is operational, as it was at the time of Morgan’s injury.

       {¶54} “Under primary assumption of the risk, the injured plaintiff’s

subjective consent to and appreciation for the inherent risks are immaterial to the

analysis.” Crace, 185 Ohio App.3d 534, 2009-Ohio-6898, at ¶ 16. Although the

primary assumption of the risk doctrine is objective, we note that in this matter,

Morgan willingly decided to pick up shells near the target arm when it was still

operational, knowing that the arm was still operational and presented a risk to her.

Morgan admitted in her deposition that she has been around guns for most her life

and that she has participated in trap shooting 3-4 times before the incident. She

also stated in her deposition, that it is “pretty clear” when the arm of the target


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Case No. 7-12-23


machine is engaged and when it is not. (Morgan Dep., p. 21).                          Immediately

before the incident happened, she noticed her brother playing with the string that

released the arm and did not say anything. Based on these facts, we find that

Morgan knowingly assumed the risk when she voluntarily participated in trap

shooting and placed herself near the cocked arm of the target machine.

        {¶55} Accordingly, we overrule the Booths’ second assignment of error.

                             Assignment of Error No. III

        {¶56} In their third assignment of error, the Booths contend that the trial

court erred when it granted summary judgment in favor of the Walls because there

was no genuine issue of material fact as to the claims of recklessness against the

Walls.8 We disagree.

        {¶57} “Once the court determines that the [plaintiff] w[as] involved in a

recreational activity, the court’s focus must shift to the alleged reckless or

intentional nature of the defendant’s conduct.” Bastian v. McGannon, 9th Dist.

07CA009213, 2008-Ohio-1449, ¶ 13. Reckless conduct differs from negligent

conduct in that it requires a greater risk of harm to another person. Doe v.

Cleveland Metro. School Dist., 8th Dist. No. 97177, 2012-Ohio-2497, ¶ 12.

“[A]lthough the determination of recklessness is typically within the province of

the jury, the standard for showing recklessness is high, so summary judgment can

8
  The Booths originally alleged reckless conduct on behalf of Chance and Cassidy Walls yet abandoned
that claim on appeal. Therefore, we will provide no discussion on whether Chance and Cassidy’s actions
were reckless.

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Case No. 7-12-23


be appropriate in those instances where the individual’s conduct does not

demonstrate a disposition to perversity.” Id. at ¶ 14 quoting O’Toole v. Denihan,

118 Ohio St.3d 374, 2008-Ohio-2574, ¶ 75.

        {¶58} Here, we will not address whether the Walls’ conduct was intentional

as this issue has not been raised on appeal. Instead, the issue is whether the Walls

acted recklessly, causing Morgan’s injury. In resolving this issue, we find that the

Booths have failed to set forth any evidence which would suggest that the Walls’

conduct rose to the level of recklessness that is needed to escape the defense of

primary assumption of the risk.

        {¶59} The Booths rely heavily on a sworn affidavit from Brian Brewton, a

target range operator, to show the Walls’ recklessness, but it is unconvincing.9

Brewton’s affidavit states that the Walls had a duty to warn and instruct the

children on the dangers of the target machine. However, the affidavit fails to take

into account that the Walls performed this duty before the shooting began. Indeed,

it is uncontested in the deposition testimony that Kathy Walls gave instructions to

the children about the target machine and warned them to never step in front of the

machine when the target arm was cocked.



9
  The Booths have offered an affidavit from a trap shooting “expert” who asserted that the Walls’ actions
satisfy the legal standard for recklessness. While the witness has some expertise in the operation of a trap
shooting range, there is no indication that Brewton possesses the necessary information to determine the
Booths’ mental states and to opine as to the satisfaction of the legal standard for recklessness. See
Dieringer v. Sawmiller, 3d Dist. No. 2-12-04, 2012-Ohio-4880, fn. 4 (noting that a medical expert is
“unqualified” to offer an opinion as to the legal applicability of insurance policy provisions).

                                                   -26-
Case No. 7-12-23


       {¶60} Brewton’s affidavit also states that the Walls acted “recklessly” by

not supervising the Booth children more closely and that this was exacerbated by

the Walls consuming alcohol during the day. The Walls’ purported lack of

supervision combined with the consumption of alcohol does not rise to the level of

recklessness. See Sebasta v. Holtsberry, 5th Dist. No. 00CA00018 (Aug. 17,

2000) (finding that parents who let their child operate a boat and go tubing

unsupervised were not reckless); State v. Thompson, 2d Dist. No. 16969 (Nov. 20,

1998) (finding no recklessness where the defendant was discovered by police

passed out, surrounded by beer cans, and who smelled of alcoholic beverage and

was unaware of how many children were under his supervision). It is undisputed

that all the children using the target machine had grown up around guns and had

experience in trap shooting. Despite the children’s familiarity with trap shooting,

Kathy still reminded the children about the dangers of the target machine and

handed out safety goggles for their use.

       {¶61} Further, any alleged misconduct by the Walls is lessened by the fact

that Morgan’s and Nathan’s own parents were in the same vicinity as the Walls,

and Scott was consuming the same amount of alcohol as Erin. Additionally, the

Booths never objected to their children trap shooting unsupervised or to the

consumption of alcohol on the premises. While all the parties could have acted

more prudently that day, it cannot be said that the Walls behaved recklessly.


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       {¶62} Lastly, the Booths contend that raising the target machine three feet

off the ground also contributed to the Walls’ alleged recklessness. However, they

offer no evidence to show how raising the target machine off the ground made the

machine more dangerous for the children to use. Even Brewton’s affidavit makes

no mention of how the Walls’ modifications to the target machine contributed to

their alleged reckless behavior.

       {¶63} Accordingly we overrule the Booth’s third assignment of error.

       {¶64} Having found no error prejudicial to the Booths in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                              Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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