[Cite as Thomas v. Strba, 2013-Ohio-3869.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

JAMES THOMAS, SR., et al.                           C.A. No.       12CA0080-M

        Appellants

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
RONALD STRBA                                        COURT OF COMMON PLEAS
                                                    COUNTY OF MEDINA, OHIO
        Appellee                                    CASE No.   11 CIV 0433

                                DECISION AND JOURNAL ENTRY

Dated: September 9, 2013



        WHITMORE, Judge.

        {¶1}    Plaintiff-Appellants, James Thomas, Sr. and Kira Thomas (collectively “the

Thomases”), appeal from the judgment of the Medina County Court of Common Pleas, granting

summary judgment in favor of Defendant-Appellee, Ronald Strba. This Court reverses.

                                                I

        {¶2}    James Thomas and Ronald Strba were long-time friends who regularly hunted

together. On November 28, 2010, Thomas and his daughter met Strba on Strba’s property to

help him construct tree stands in anticipation of the opening day of hunting season. The two men

started with a tree stand that was already in place on the property and was in need of remodeling.

The pre-existing tree stand consisted of a crude platform atop a series of 2X4 boards that served

as rungs to climb up to the platform. The boards were nailed to two adjacent trees, such that the

left side of each board was nailed to the tree on the left and the right side of each board was

nailed to the tree on the right. The boards were spaced in approximately two to three foot
                                               2


intervals. There is no dispute that, at some point, Strba began nailing additional boards to the

trees. Specifically, he added one board in the gap between each pre-existing board to make for

an easier climb. After adding several boards, Strba tired and Thomas climbed up the tree stand

to continue the work. Thomas held onto one of the pre-existing boards as he began to nail in a

new board. Thomas was seriously injured when the pre-existing board pulled away from the tree

on the left and he fell to the ground.

        {¶3}   The Thomases filed a complaint against Strba in which they asserted negligence

and loss of consortium. Subsequently, Strba moved for summary judgment under the theory that

the Thomases’ claims were barred by the primary assumption of the risk doctrine. The trial court

determined that the primary assumption of the risk doctrine would bar the Thomases’ claims

unless they pointed to evidence that Strba had engaged in intentional or reckless behavior.

Because the Thomases’ complaint only alleged negligence, the court gave them the opportunity

to file an amended complaint. The Thomases then filed an amended complaint, in which they

alleged that their injuries were due to Strba’s negligent and/or reckless behavior.       After

additional discovery took place, Strba moved for summary judgment on the amended complaint.

The court granted Strba’s motion due to the application of the primary assumption of the risk

doctrine and the lack of any evidence that the Thomases were injured due to any intentional or

reckless behavior on the part of Strba.

        {¶4}   The Thomases now appeal from the trial court’s judgment and raise five

assignments of error for our review. For ease of analysis, we combine several of the assignments

of error.
                                                  3


                                                  II

                                 Assignment of Error Number One

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
       FINDING THAT THE DOCTRINE OF PRIMARY ASSUMPTION OF THE
       RISK FOR RECREATIONAL ACTIVITIES APPLIES EVEN WHEN
       PLAINTIFF HAS NOT YET BEGUN PARTICIPATING IN THE
       RECREATIONAL ACTIVITY.

                                Assignment of Error Number Two

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
       FINDING THAT THE MERE BUILDING OF A STRUCTURE CONSTITUTES
       A RECREATIONAL ACTIVITY EVEN WHERE THE RECREATIONAL
       ACTIVITY HAS NOT YET STARTED BUT THE STRUCTURE ITSELF IS
       INTENDED FOR THE LATER USE IN A RECREATIONAL ACTIVITY.

                                Assignment of Error Number Three

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
       FINDING THAT THE DOCTRINE OF PRIMARY ASSUMPTION OF THE
       RISK FOR RECREATIONAL ACTIVITIES APPLIES EVEN DURING THE
       CONSTRUCTION PHASE OF A STRUCTURE INTENDED FOR LATER USE
       IN A RECREATIONAL ACTIVITY.

       {¶5}    In their first three assignments of error, the Thomases argue that the trial court

erred by granting Strba’s motion for summary judgment because (1) the primary assumption of

the risk doctrine does not apply to the act of building a tree stand for future use, and (2) there are

genuine issues of material fact regarding Strba’s negligence.

       {¶6}    Initially, we note that the trial court here incorrectly premised its judgment upon

its own factual findings. By way of example, Thomas testified in his deposition that he had not

definitively decided to hunt with Strba on Strba’s property. Thomas explained that he had made
                                                  4


arrangements to hunt down south in Guernsey County instead.1 Nevertheless, the trial court

found that Thomas would benefit from helping Strba build tree stands on his property because

Thomas planned to hunt there. By way of further example, the trial court found that the pre-

existing tree stand on Strba’s property “had been constructed by Mr. Strba and his son.” The

identity of the person(s) responsible for building the tree stand, however, was a matter of

contention in the court below. There was testimony that (1) Strba’s two sons had built the stand,

(2) the stand was already in place on the property when Strba bought it, and (3) a friend of

Strba’s built the stand several years before this incident.2

       {¶7}    In ruling on a motion for summary judgment, a trial court must not resolve issues

of fact because issues of fact are properly reserved for trial. See Tucker v. Kanzios, 9th Dist.

Lorain No. 08CA009429, 2009-Ohio-2788, ¶ 16.             Instead, the role of the trial court is to

determine whether genuine issues of material fact exist for trial. The trial court here improperly

resolved issues of fact in its summary judgment ruling. “Nevertheless, ‘[i]nasmuch as [our]

review of an order granting summary judgment is de novo, * * * [we] will proceed to determine

whether, despite the trial court’s incorrect analysis, [Strba] [was] entitled to summary judgment.”

Schaffer v. First Merit Bank, N.A., 186 Ohio App.3d 173, 2009-Ohio-6146, ¶ 15 (9th Dist.),

quoting Tucker at ¶ 16. Accord Weisfeld v. PASCO, Inc., 9th Dist. Summit No. 26416, 2013-

Ohio-1528, ¶ 9.




1
  Also evident from the trial court’s judgment entry is its mistaken belief that this incident
occurred on Strba’s property in Guernsey County. The record reflects that this incident occurred
at Strba’s home in Medina County. Although Strba and Thomas jointly owned land and a
hunting cabin in Guernsey County, they were not there on the day in question.
2
  Notably, there was no testimony that Strba and his son built the stand.
                                                 5


        {¶8}   This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is

proper if:

        (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 party against whom the motion for
        summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for the motion and

pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher

v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Specifically, the moving party must support the

motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. Once

this burden is satisfied, the non-moving party bears the burden of offering specific facts to show

a genuine issue for trial. Id. at 293. The non-moving party may not rest upon the mere

allegations and denials in the pleadings but instead must point to or submit some evidentiary

material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle, 75 Ohio

App.3d 732, 735 (12th Dist.1991).

        {¶9}   “[T]o establish a cause of action for negligence, the plaintiff must show (1) the

existence of a duty, (2) a breach of duty, and (3) an injury proximately resulted therefrom.”

Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 8. “[P]rimary assumption

of risk, when applicable, prevents a plaintiff from establishing the duty element of a negligence

case.” Stewart v. Urig, 176 Ohio App.3d 658, 2008-Ohio-3215, ¶ 25 (9th Dist.), quoting

Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 433 (1996). “Underlying this

judicially created doctrine is the notion that certain risks are so inherent in some activities that
                                                 6


they cannot be eliminated.” Otterbacher v. Brandywine Ski Center, Inc., 9th Dist. Summit No.

14269, 1990 WL 72327, *4 (May 23, 1990). Consequently, no duty to protect against them

arises. Id. Primary assumption of the risk “is a defense of extraordinary strength” because it

defeats a plaintiff’s ability to allege even a prima facie case of negligence. Gallagher at 431. As

such, the doctrine generally has been limited to cases where a plaintiff was injured while

engaged in a recreational activity or an inherently dangerous activity. See, e.g., Bastian v.

McGannon, 9th Dist. Lorain No. 07CA009213, 2008-Ohio-1449, ¶ 11; Stewart at ¶ 25-28. This

appeal concerns the trial court’s conclusion that Thomas was engaged in a recreational activity at

the time he was injured.

       {¶10} “Where individuals engage 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 intentional[.]” (Internal quotations omitted.)

Marchetti v. Kalish, 53 Ohio St.3d 95 (1990), syllabus. The first question in such a case is

whether the injured plaintiff was, in fact, either a participant in or a spectator of a recreational

activity at the time of the injury. Bastian at ¶ 12. See also Gentry v. Craycraft, 101 Ohio St.3d

141, 2004-Ohio-379, ¶ 7-14. If an individual sustains an injury after the recreational activity at

issue has ended, the primary assumption of the risk doctrine does not apply. Bastian at ¶ 16

(summary judgment reversed due to material dispute of fact that children’s BB gun game was

still ongoing at time of plaintiff’s injury). See also Booth v. Walls, 3d Dist. Henry No. 7-12-23,

2013-Ohio-3190, ¶ 49-52 (doctrine held to apply when recreational activity of target shooting

still ongoing); Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009,

¶ 4-22 (6th Dist.) (doctrine inapplicable when plaintiff injured by runaway horse after

participating in an earlier horse race). By that same logic, the doctrine cannot be said to apply if
                                                7


an individual is injured before the recreational activity at issue has commenced. See Bastian at ¶

16.

       {¶11} There is no dispute that James Thomas was injured on November 28, 2010, one

day before the opening day of hunting season (November 29, 2010). In his deposition, Thomas

testified that he and Strba had been friends for over twenty years and had hunted together every

year for the past fifteen years. During those fifteen years, the two men hunted together on

property they had jointly purchased in Guernsey County. In 2010, however, Strba decided not to

hunt on the Guernsey County property. Thomas testified that Strba planned to hunt on his own

property instead and invited Thomas to hunt with him. Thomas further testified that he was

considering hunting with Strba, but had already made plans to hunt with another friend of theirs

in Guernsey County. Nevertheless, when Strba asked Thomas to help him put up tree stands on

his property, Thomas agreed. Thomas took his daughter along when he went to Strba’s property

to build the stands. At the time of Thomas’ deposition, his daughter was thirteen years old.

       {¶12} Strba testified that he decided to hunt on his own property in 2010 and invited

Thomas to join him. Strba further testified that it was his impression that Thomas would be

hunting with him the following day. Even so, Strba agreed that he and Thomas were not hunting

on the day of Thomas’ injury because hunting season had not yet commenced. Strba described

Thomas and himself on that day as “two friends [working] on a project.”

       {¶13} The trial court determined that, at the time of Thomas’ injury, both Thomas and

Strba “were engaged in the recreational activity of building a hunting stand to use while hunting

on the property.” The court adhered to its earlier decision on Strba’s first motion for summary

judgment in which the court wrote:

       Absent the reason why Mr. Thomas was helping Mr. Strba build the hunting
       stand, this Court would agree that a person who came onto the land of another to
                                                 8


        help him build or repair a structure on that land would be a business invitee [and
        the primary assumption of the risk doctrine would not apply]. In this case,
        however, the reason why Mr. Thomas was helping Mr. Strba with the hunting
        stand was not solely for Mr. Strba’s benefit. It was so that both Mr. Thomas and
        Mr. Strba could hunt on Mr. Strba’s property in Guernsey County.

Consequently, the trial court concluded that the Thomases’ claims were barred by the primary

assumption of the risk doctrine.

        {¶14} As previously explained, Strba’s property was not located in Guernsey County.

Although Strba owned property with Thomas in Guernsey County, the incident in question

occurred on Strba’s personal property. Moreover, while the tree stands Thomas agreed to help

Strba build would be used for hunting, there was conflicting testimony about Thomas’ own

hunting plans. It was Strba’s impression that Thomas planned to hunt with him on opening day,

but Thomas testified that he had made plans to hunt in Guernsey County. The record does not

support the trial court’s definitive conclusion that Thomas planned to hunt on Strba’s property

the following day. Even so, Thomas’ plans for the following day are not dispositive of the

analysis here. The pertinent question is whether Thomas was engaged in a recreational activity

at the time of his injury.

        {¶15} Under the facts of this case, it is clear to this Court that Thomas was not engaged

in a recreational activity at the time of his injury. Certainly, hunting qualifies as a recreational

activity. See, e.g., Hoover v. Shipley, 70 Ohio App.3d 256 (5th Dist.1991). Yet, Thomas was

not hunting when he fell from the tree stand. Compare Bruntz v. Cotton Tail Hunt Club, 291

Ga.App. 200 (2008) (primary assumption of the risk barred negligence action against hunting

club when experienced hunter fell from the tree stand he was climbing for the purpose of hunting

from it). Thomas was simply helping his friend prepare for the start of hunting season, which

did not even commence until the following day.
                                                9


        {¶16} Any number of preparations might be necessary before one can engage in a

recreational activity. For instance, a hunter’s preparations undoubtedly would include buying a

hunting license, readying his shotgun or bow, and selecting weather-appropriate attire. Those

preparations might occur over any number of hours, days, or weeks before any actual hunting

commenced. It would be an absurd result if the primary assumption of the risk doctrine barred

the recovery of a hunter who slipped and fell in the store where he went to purchase his license

or who was injured in a car accident while driving to his hunting destination. The doctrine

would not bar those injuries because the recreational activity (i.e., hunting) had yet to begin

when the injuries occurred. Moreover, those injuries would not be of the type that a hunter

would ordinarily assume as inherent risks of the sport of hunting. See Marchetti, 53 Ohio St.3d

at syllabus (“Where individuals engage in recreational or sports activities, they assume the

ordinary risks of the activity * * *.”). See also Gallagher, 74 Ohio St.3d at 432 (“[O]nly those

risks directly associated with the activity in question are within the scope of primary assumption

of risk * * *.”).

        {¶17} There is no dispute that Thomas was injured while helping construct a tree stand

in anticipation of hunting season. By law, no hunting could occur until the following day and

there was no evidence that Thomas intended to hunt on the day he was injured. Moreover, there

was no evidence that Thomas and Strba were engaged in tree stand building simply for the sake

of it. Compare Gentry, 101 Ohio St.3d 141, 2004-Ohio-379, at ¶ 7-14 (children building a chair

were “engaged in typical backyard play” such that their chair building constituted a recreational

activity). The building of the tree stand was a means to an end. Were this Court to hold that

Thomas was engaged in a recreational activity at the time of his injury, the definition of what

constitutes a recreational activity would be greatly expanded.
                                               10


       {¶18} The beginning and ending point of a recreational activity may oftentimes prove

difficult to discern and might vary depending on the facts and circumstances of each given case.

Given the facts and circumstances of this particular case, we must conclude that Thomas was not

engaged in a recreational activity at the time he was injured. Because Thomas was not engaged

in a recreational activity at the time of his injury, the trial court erred by concluding that the

Thomases’ claims were barred by the primary assumption of the risk doctrine. Moreover,

because Strba moved for summary judgment solely on the basis that the Thomases’ claims were

barred by the doctrine, the trial court erred by granting Strba’s motion for summary judgment.

The Thomases’ first three assignments of error are sustained.

                               Assignment of Error Number Four

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
       FINDING THAT THE IMPROPER CONSTRUCTION OF A TREE STAND IS
       A DANGER THAT IS ORDINARY TO THE ACTIVITY OF HUNTING.

                               Assignment of Error Number Five

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
       BECAUSE A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO
       WHETHER STRBA ACTED RECKLESS (Sic.)

       {¶19} In their fourth and fifth assignments of error, the Thomases argue that the trial

court erred by granting Strba’s motion for summary judgment because (1) Thomas’s injury was

not due to an inherent risk of building or climbing a tree stand, and (2) there are genuine issues

of material fact with regard to whether Strba acted recklessly. Both of the foregoing assignments

of error are premised upon this Court having concluded that Thomas was engaged in a

recreational activity at the time he was injured. Because we have concluded that Thomas was

not engaged in a recreational activity when he was injured, the assignments of error are moot.

Therefore, we decline to address them. See App.R. 12(A)(1)(c).
                                                11




                                                III

       {¶20} The Thomases’ first, second, and third assignments of error are sustained. Their

fourth and fifth assignments of error are moot and we decline to address them. The judgment of

the Medina County Court of Common Pleas is reversed, and the cause is remanded for further

proceedings consistent with the foregoing opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                      BETH WHITMORE
                                                      FOR THE COURT
                                          12



MOORE, P. J.
BELFANCE, J.
CONCUR.

APPEARANCES:

DAVID R. GRANT, Attorney at Law, for Appellants.

KIRK E. ROMAN, Attorney at Law, for Appellee.
