[Cite as Kinkade v. Noblet, 2014-Ohio-3172.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



FRANCES J. KINKADE                             :    JUDGES:
                                               :    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                    :    Hon. Sheila G. Farmer, J.
                                               :    Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :
HAROLD GEORGE NOBLET, ET AL.                   :    Case No. 14CA4
                                               :
        Defendants-Appellees                   :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2012 CV 496


JUDGMENT:                                           Affirmed



DATE OF JUDGMENT:                                   July 17, 2014



APPEARANCES:

For Plaintiff-Appellant                             For Defendants-Appellees

JOHN TARKOWSKY                                      KENNETH R. BEDDOW
GREGORY J. TARKOWSKY                                24 West Third Street
3 North Main Street                                 Suite 204
Suite 500                                           Mansfield, OH 44902
Mansfield, OH 44902
                                                    MICHAEL R. HENRY
                                                    MATTHEW R. PLANEY
                                                    500 South Front Street
                                                    Suite 1200
                                                    Columbus, OH 43215
Richland County, Case No. 14CA4                                                       2

Farmer, J.

      {¶1}   On October 25, 2011, appellant, Frances Kinkade, was a participant in a

Halloween parade in the city of Mansfield. She walked alongside a parade float for

appellee, All Care Services, LLC, passing out candy to spectators. When she was out

of candy, she would approach the float when it was stopped and retrieve additional

candy from workers sitting on the float. During one of those times, the float started to

move before she walked away and she was injured when the wheels of the float ran

over her foot/ankle. The float was a decorated wooden trailer pulled by a pick-up truck

being driven by appellee, Harold George Noblet.

      {¶2}   On April 26, 2012, appellant filed a complaint against appellees, claiming

negligence, recklessness, and/or willful disregard.      Appellees filed motions for

summary judgment on July 25, 2013. By order and judgment entry filed December 27,

2013, the trial court granted the motion, finding the doctrines of primary assumption of

the risk and open and obvious applied, and there was no evidence that appellee Noblet

was reckless or willful.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶4}   "THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING

THAT PLAINTIFF'S CLAIM IS BARRED BY THE ASSUMPTION OF RISK

DOCTRINE."
Richland County, Case No. 14CA4                                                     3


                                          II

      {¶5}   "THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING

THAT PLAINTIFF'S CLAIM IS BARRED BY THE OPEN AND OBVIOUS DOCTRINE."

                                          III

      {¶6}   "THE TRIAL COURT ERRED IN HOLDING THAT THERE WAS NO

EVIDENCE IN THE RECORD THAT DEFENDANT HAROLD GEORGE NOBLET

ACTED RECKLESSLY."

      {¶7}   Appellant challenges the trial court's granting of summary judgment in

favor of appellees under two alternative doctrines, primary assumption of the risk and

open and obvious.

      {¶8}   Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:



             Civ.R. 56(C)   provides that before summary judgment may be

      granted, it must be determined that (1) no genuine 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) it appears from the evidence that

      reasonable minds can come to but one conclusion, and 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. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,
Richland County, Case No. 14CA4                                                         4

      628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

      Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.



      {¶9}   As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35 (1987). We will utilize this standard in reviewing the assignments of error.

                                             I

      {¶10} Appellant claims the trial court erred in finding her claims were barred by

the primary assumption of the risk doctrine. We disagree.

      {¶11} In Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431-

432, 1996-Ohio-320, Justice Resnick set forth a clear distinction between primary

assumption of the risk and implied assumption of the risk:



             Although the Anderson [v. Ceccardi, 6 Ohio St.3d 110 (1983)] court

      merged implied assumption of risk with contributory negligence, the court

      found that two other types of assumption of risk did not merge with

      contributory negligence - express (e.g., contractual) assumption of risk

      and primary ("no duty") assumption of risk. Anderson's statement that

      primary assumption of risk does not merge with contributory negligence is

      of critical importance to our discussion here because when a plaintiff is

      found to have made a primary assumption of risk in a particular situation,

      that plaintiff is totally barred from recovery, as a matter of law, just as he
Richland County, Case No. 14CA4                                                       5

      or she would have been before Anderson. The net result of Anderson's

      differentiation between primary and implied assumption of risk is that now

      it is of utmost importance which type of assumption of the risk is put forth

      as a defense. In fact, after Anderson, these two defenses are so distinct

      that it is misleading that each continues to bear the title "assumption of

      risk," as if the two were interrelated concepts.     Due to the confusion

      occasioned by continuing usage of "assumption of risk," many

      commentators have advocated abolishment of the term. "[T]he concept of

      assuming the risk is purely duplicative of other more widely understood

      concepts, such as scope of duty or contributory negligence. * * * It adds

      nothing to modern law except confusion." 4 Harper, James & Gray, Law

      of Torts (2 Ed.1986) 259, Section 21.8. However, despite this confusion,

      Ohio continues to recognize the term and its accompanying variations.

             Primary assumption of risk is a defense of extraordinary strength.

      Based on the distinction drawn in Anderson between implied assumption

      of risk and primary assumption of risk, and the doctrine that a plaintiff who

      primarily assumes the risk of a particular action is barred from recovery as

      a matter of law, it becomes readily apparent that primary assumption of

      risk differs conceptually from the affirmative defenses that are typically

      interposed in a negligence case. An affirmative defense in a negligence

      case typically is the equivalent of asserting that even assuming that the

      plaintiff has made a prima facie case of negligence, the plaintiff cannot

      recover.   A primary assumption of risk defense is different because a
Richland County, Case No. 14CA4                                                          6


      defendant who asserts this defense asserts that no duty whatsoever is

      owed to the plaintiff. See Prosser & Keeton, Law of Torts (5 Ed.1984)

      496–497, Section 68 (Primary assumption of risk "is really a principle of no

      duty, or no negligence, and so denies the existence of any underlying

      cause of action.").    Because 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.



      {¶12} In applying this definition, we are further guided by the Tenth District in

Crace v. Kent State University, 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 15-17

(citations omitted):



              As a result, primary assumption of the risk negates a negligence

      claim because no duty is owed to protect against the inherent risks of the

      recreational activity. Given this profound impact, courts should proceed

      with caution when deciding to apply primary assumption of the risk.

              Under primary assumption of the risk, the injured plaintiff's

      subjective consent to and appreciation for the inherent risks are immaterial

      to the analysis. Indeed, "those entirely ignorant of the risks of a sport, still

      assume the risk * * * by participating in a sport or simply by attending the

      game.     The law simply deems certain risks as accepted by plaintiff
Richland County, Case No. 14CA4                                                       7


      regardless of actual knowledge or consent." In accordance with these

      principles, our court has previously held:

             [P]rimary assumption of [the] risk requires an examination of the

      activity itself and not plaintiff's conduct.   If the activity is one that is

      inherently dangerous and from which the risks cannot be eliminated, then

      a finding of primary assumption of [the] risk is appropriate.

      Gehri v. Capital Racing Club, Inc. (June 12, 1997), 10th Dist. No.

      96APE10–1307, 1997 WL 324175.

             On the other side, under the implied-assumption-of-the-risk

      defense, a court must engage in a comparative-fault analysis. To prevail

      on the defense of implied assumption of the risk, a defendant must

      demonstrate that the injured participant in fact "consented to or

      acquiesced in an appreciated or known risk."



      {¶13} To date, Ohio courts have not addressed the issue of whether a "parade"

qualifies under the primary assumption of the risk doctrine. Employing the analysis in

Gallagher and Crace, we conclude, as did the trial court, that primary assumption of

the risk applies sub judice.

      {¶14} Under Civ.R. 56, the facts construed must favorably to the non-moving

parties are as follows.        Appellant was a volunteer and was given very limited

instructions as to her activity. Kinkade depo. at 49-50, 59. She was told to pass out

candy on the parade route by walking alongside the float. Id. at 50. She passed out

the candy to spectators on the parade route. She was told to refill the candy pockets
Richland County, Case No. 14CA4                                                         8

on her apron by retrieving the candy from the float when it stopped. Id. at 50-51, 55.

She was not told where to approach the float from. Id. at 51. She admitted to never

knowing how long the float would be stopped, but knew to get away from it as quickly

as possible. Id. at 52. The apron she wore and the instructions she received were

from appellee All Care. Id. at 51, 59.

      {¶15} These facts establish that appellant was a willing parade participant. Id. at

57. No other conclusion is possible. Appellant admitted it was her choice to pass out

the candy, although her primary reason was to take her daughter to the parade to ride

on the float. Id. at 57-58, 67.

      {¶16} Prior to the accident, appellant stated she successfully refilled her candy

apron two times. Id. at 51. On the third trip, she walked up to the stopped float in front

of the trailer wheels as before, and retrieved candy from Marcie Crawford who was

sitting on the float in front of the wheels. Id. at 53. The float started to move and Ms.

Crawford's hand was still in the apron pouch placing the candy. Id. Appellant yelled

"[w]ait, wait, wait" and attempted to get out of the way, but her foot got caught and she

was struck and sustained injuries. Id. at 53, 61. She could not obtain candy from

anyone behind the wheels as the persons dispensing the candy were sitting on the

float in front of the wheels. Id. at 56-57. Appellant explained the float "pulled out so

quickly" that she "could not have gotten out if I wanted to." Id. at 73.

      {¶17} Ms. Crawford and another witness, Bethann Chapman, were seated on

the float dispensing the candy.      Although they differ as to appellant's position in

escaping the moving float, they do add evidence as to the speed and description of the

float. Crawford depo. at 19-24; Chapman depo. at 23, 25-27. A photograph attached
Richland County, Case No. 14CA4                                                      9


to various depositions depicts the trailer that made up the float, showing the wheels

were outside the trailer bed and were clearly visible. Crawford depo. at 28-29. Both

witnesses stated the parade pace was slow, slower than a walking pace. Crawford

depo. at 19; Chapman depo. at 25, 38.

      {¶18} 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.

      {¶19} Upon review, we find the trial court did not err in applying the primary

assumption of the risk doctrine.

      {¶20} Assignment of Error I is denied.

                                          II, III

      {¶21} Appellant claims the trial court erred in finding, in the alternative, her

claims were barred by the open and obvious doctrine, and erred in finding there was no

evidence that appellee Noblet acted recklessly. We disagree.

      {¶22} In Armstrong v. Best Buy, 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 5, the

Supreme Court of Ohio discussed the open and obvious doctrine as follows:



              The sole issue before this court concerns the viability of the open-

      and-obvious doctrine, which states that a premises-owner owes no duty to

      persons entering those premises regarding dangers that are open and

      obvious. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233
Richland County, Case No. 14CA4                                                         10


      N.E.2d 589, paragraph one of the syllabus. The rationale underlying this

      doctrine is "that the open and obvious nature of the hazard itself 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. (1992), 64 Ohio St.3d 642, 644, 597 N.E.2d 504.            A shopkeeper

      ordinarily owes its business invitees a duty of ordinary care in maintaining

      the premises in a reasonably safe condition and has the duty to warn its

      invitees of latent or hidden dangers. Paschal v. Rite Aid Pharmacy, Inc.

      (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474; Jackson v.

      Kings Island (1979), 58 Ohio St.2d 357, 12 O.O.3d 321, 390 N.E.2d 810.

      When applicable, however, the open-and-obvious doctrine obviates the

      duty to warn and acts as a complete bar to any negligence claims.



      {¶23} As the Armstrong court noted at ¶ 13, "The fact that a plaintiff was

unreasonable in choosing to encounter the danger is not what relieves the property

owner of liability. Rather, it is the fact that the condition itself is so obvious that it

absolves the property owner from taking any further action to protect the plaintiff."

      {¶24} The photograph of the trailer that made up the float speaks a thousand

words. Not only were the wheels open and obvious, but appellant's two previous trips

to the same area of exposure are sufficient to support the trial court's decision.

      {¶25} In O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, ¶ 73-75,

(citations omitted), the Supreme Court of Ohio discussed "recklessness" as follows:
Richland County, Case No. 14CA4                                                         11




              In Thompson v. McNeill (1990), 53 Ohio St.3d 102, 559 N.E.2d

      705, we held that an actor's conduct " 'is in reckless disregard of the safety

      of others if he does an act or intentionally fails to do an act which it is his

      duty to the other to do, knowing or having reason to know of facts which

      would lead a reasonable man to realize, not only that his conduct creates

      an unreasonable risk of physical harm to another, but also that such risk is

      substantially greater than that which is necessary to make his conduct

      negligent.' " Id. at 104–105, 559 N.E.2d 705, quoting 2 Restatement of

      the Law 2d, Torts (1965) 587, Section 500. Distilled to its essence, and in

      the context of R.C. 2744.03(A)(6)(b), recklessness is a perverse disregard

      of a known risk.***

              Recklessness, therefore, necessarily requires something more than

      mere negligence.***In fact, "the actor must be conscious that his conduct

      will in all probability result in injury."

              Although the determination of recklessness is typically within the

      province of the jury, the standard for showing recklessness is high, so

      summary judgment can be appropriate in those instances where the

      individual's conduct does not demonstrate a disposition to perversity.



      {¶26} Appellant argues appellee Noblet was aware people were approaching the

float, yet he did not look in his side mirrors before moving. Noblet depo. at 57-58, 62-
Richland County, Case No. 14CA4                                                   12

63. Appellee Noblet stated he could not "see a whole lot behind." Id. at 57. His main

concern was with the people in front of him. Id.

      {¶27} As determined by the trial court, we concur there is no evidence that

appellee Noblet's conduct rose to the level of recklessness as that term is explained

above.

      {¶28} Assignments of Error II and III are denied.

      {¶29} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.




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