Archive for the ‘Ohio’ Category

Bad Aim – Checking Out a Friend’s Firearm in Your Garage is Not a Recreational Activity (OH)

July 28, 2015

Lovegrove v. Stapleton (Ohio)

The plaintiff and the defendant were both experienced gunman who shared a common interest in competitive shooting.  Plaintiff and defendant participated together in a Tuesday night shooting league, and they would sometimes go to shooting ranges together on weekends.  In the summer of 2012, plaintiff drove to the defendant’s home to have the defendant notarize some paperwork for him.  Plaintiff brought his new gun with him, knowing that defendant would likely want to check out it out, which, as the evidence established, is something that happens often in the culture of the competitive shooting community.

Before entering defendant’s garage, plaintiff removed the magazine from the gun.  In the garage, he removed the gun from the holster on his waistband, checked the chamber, and set the gun on a workbench.  Defendant notarized plaintiff’s paperwork and then checked out the gun “dry-firing” it multiple times.  Defendant’s children came into the garage a couple of time, but were sent back into the house for their own safety.

Defendant stepped into the house to check on his wife, who was in the backyard.  Plaintiff picked up his paperwork and his gun, and he put the magazine back in the gun.  Since no round was chambered, he could not put on the gun’s safety.  Plaintiff turned around and saw defendant’s children standing in front of him wanting to show him a trophy.  Defendant placed the gun back on the workbench and told the children he would put his things back in his truck and then come inside.  Plaintiff ushered the children back into the house and closed the door.  As plaintiff was turning around he heard the gun go off.  The defendant had returned, picked up the gun from the workbench, and fired the gun.  The bullet hit the workbench and ricocheted, hitting plaintiff in the abdomen.

A year later, plaintiff filed a lawsuit against the defendant alleging that the defendant acted negligently and recklessly in shooting the gun.  The defendant filed a motion for summary judgment, claiming that plaintiff was engaged in a recreational activity and that primary assumption of risk precluded plaintiff’s negligence claim.  Defendant also contended that he had not acted recklessly.  The trial court granted defendant’s motion, and plaintiff appealed.
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Headline: Water is Wet – Defendant Wins Health Club Locker Room Slip and Fall Case (OH)

April 28, 2015

Daher v. Bally’s Total Fitness (Ohio)

The plaintiff was a member of the defendant’s health club.  On a visit to the club, she slipped and fell on a wet surface in the locker room.  Plaintiff filed an action against the defendant alleging negligent maintenance of the premises.  The defendant filed a motion to summary judgment based upon the “open & obvious doctrine” and the contract signed by members containing clear and unequivocal release language.  The plaintiff did not oppose the motion, and the trial court granted the defendants’ motion.  Despite not having opposed the motion, the plaintiff appealed the ruling.

On appeal, the Court of Appeals of Ohio affirmed the trial court ruling.  First, the Court explained that despite the fact that the plaintiff had not opposed the motion, the defendant was not entitled to summary judgment absent proof that such judgment was appropriate.  Looking at the evidence, the Court concluded that “the wet condition of the locker room near the pool area was open and obvious.”  Plaintiff argued that the doctrine should not apply because “there was no alternative route or other means available for [her] to protect herself from the hazard posed by the wet floor,” but the Court was unconvinced. (more…)

Speed Trap

November 15, 2012

Hines v. Camper (Ohio)(Not Published)
(A passenger in a car participating in a street race was injured when the car crashed.  After the insurer of the driver’s car refused to afford coverage, the plaintiff brought an uninsured/underinsured action against it.  The trial court ruled that the policy exclusion relating to racing and speed contests precluded coverage.  The passenger appealed, arguing he was not a “participant,” but  the decision was affirmed on appeal.)

The plaintiff and several of his friends gathered to participate in an amateur street drag race one evening.  Plaintiff sat in the back seat of the car during the race since the front passenger seat did not have a seatbelt.  During the race, the driver of the car lost control and they crashed, with the plaintiff suffering numerous injuries.  Following the incident, the plaintiff sought recovery from the insurance company that insured the parents of the driver.  However, the claim was denied based upon the exclusion that provided that the insurer “will not pay any damages an insured person or an additional insured person is legally entitled to recover because of bodily injury . . . arising out of the participation in a pre-arranged, organized, or spontaneous . . . racing contest . . . speed contest . . .or use of an auto at a track or course designed or used for racing or high performance driving . . . .”

At the trial court level, the defendant insurer’s motion for summary judgment was granted based on both the aforementioned policy exclusion and the plaintiff’s assumption of the risk of injury associated with him entering the vehicle involved in the street race.  The plaintiff appealed, arguing (1) he was not a “participant” in the street race because he was not driving and (2) there was a triable issue of material fact pertaining to his assumption of the risk.

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On The Loose

September 28, 2012

White v. Elias (Ohio)
(An individual who was kicked by an escaped horse brought an action against the horse owner and the property owner; the court ruled that there was no strict liability but that an issue of material fact as to the potential negligence of the defendants.)

A horse boarding facility released horses to graze in a pasture unsupervised.  However, because there was no food trough and because the pasture was bare, six-horse then escaped from the pasture and ended up on a neighboring property.  The neighbor saw the horses and called the plaintiff because she was familiar with the horses.  They asked if she could help lead the horses home.  However, when the plaintiff approached the group of horses, one of them kicked back and hit her in the face, causing serious and permanent injuries.

The plaintiff sued the horse owner and the owner of the property where the horse was boarded, alleging claims for strict liability and negligence.  The defendants moved for summary judgment, which the trial court granted.  The plaintiff appealed.

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On the Rebound

July 10, 2007

Lykins v. Fun Spot Trampolines (Ohio)
(Woman Falls From Trampoline; Court Holds Risk of “Double Bounce” and Risk of More Than 225 Pound on Trampoline Not Open and Obvious, Not Assumed)

The plaintiff was invited to an annual Fourth of July party, and she was injured when she fell from a trampoline. The defendant property owners (the Thompsons) had hosted a similar party for many years and had purchased a trampoline, which they had allowed party guests to use over the years. The plaintiff used the trampoline at the annual party for five consecutive years from 1995 through 2000. On the day of the incident, she was standing on the perimeter of the trampoline while another adult guest was jumping in the middle. At some point, the plaintiff (who has consumed a limited amount of alcohol) lost her balance, fell on her back, and suffered a broken neck and a crushed spinal cord, rendering her a quadriplegic.

Plaintiff filed a lawsuit against the manufacturer of the trampoline for strict products liability and against the Thompsons for negligence. Thereafter, the defendants filed motions for summary judgment, which were granted by the trial court. As to the manufacturer, the court held that the dangers presented by the subject trampoline were open and obvious and a matter of common knowledge. With regard to the Thompsons, the court also ruled that the dangers associated with trampoline use were open and obvious such that plaintiff was owed no duty. The court further found that plaintiff assumed the inherent risks associated with use of the trampoline and that the record did not support a finding of recklessness on the part of the Thompsons to impose liability upon them. The plaintiff appealed the rulings.

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Spare Me

June 20, 2007

Young v. New Southgate Lanes (Ohio-NOT PUBLISHED)
(Bowler Slips and Falls Due to Oil on Approach to Lane; Facility Owed Duty of Care; Assumption of Risk Not a Viable Defense)

The plaintiff slipped and fell in the middle of a bowling game at the defendant’s bowling facility. She encountered oil on the approach to the lane, which caused the incident. The facility had received a complaint from another patron about oil on the subject approach, and an employee attempted to clean it up shortly before the incident. Plaintiff filed a negligence action against the facility. The defendants filed a motion for summary judgment, arguing the following: 1) as a recreational user, plaintiff was barred from recovery; 2) plaintiff assumed the risk; 3) the condition of the lane was open and obvious; 4) the facility did not breach its duty of care to plaintiff; 4) plaintiff was barred from recovery because she was comparatively negligent; and 5) there was no evidence to prove recklessness on the part of the facility. The court granted the defendant’s motion and entered judgment in its favor. Plaintiff appealed.

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