Campagna-McGuffin v. Diva Gymnastics Academy, Inc. , 2022 Ohio 3885 ( 2022 )

[Cite as Campagna-McGuffin v. Diva Gymnastics Academy, Inc., 2022-Ohio-3885.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
ANGELA CAMPAGNA-MCGUFFIN, : Hon. W. Scott Gwin, P.J.
ET AL : Hon. John W. Wise, J.
: Hon. Craig R Baldwin, J.
Plaintiffs-Appellants :
:
-vs- : Case No. 2022 CA 00057
:
DIVA GYMNASTICS ACADEMY, :
INC., ET AL : OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2020CV00936
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 31, 2022
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
DAVID C. PERDUK JUSTIN A. DUBLIKAR
3603 Darrow Road KYLE A. CRAMER
Stow, OH 44224 Cincinnati Insurance Co.
50 S. Main Street, Ste. 615
Akron, OH 44308
LAWRENCE J. SCANLON FRANK G. MAZGAJ
JAMES R. GALLA FRANK G. MAZGAJ, JR.
57 S. Broadway St., 3rd Fl. 3737 Embassy Parkway, Ste. 100
Akron, OH 44308 Akron, OH 44333
Stark County, Case No. 2022 CA 00057 2
Gwin, P.J.
{¶1} Appellants appeal the April 5, 2022 judgment entry of the Stark County
Court of Common Pleas granting appellees’ motion for summary judgment.
Facts & Procedural History
{¶2} On June 25, 2020, appellants Angela Campagna-McGuffin, as legal
guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and
Shelly Benson, as legal guardian of Jocelynn Benson, filed a complaint against appellee
Diva Gymnastics Academy, Inc., alleging negligence, negligent supervision, bodily injury
with mental anguish, and loss of consortium. Diva is owned and operated by Dr. Lisa
Ford (“Ford”).
{¶3} Appellants McGuffin, Bagnola, and Benson filed their first amended
complaint on September 23, 2020, adding appellee Travis Seefried, the head coach at
Diva, as a defendant, and alleging the following claims: negligence, negligent
supervision, intentional infliction of emotional distress, negligent infliction of emotional
distress, and loss of consortium.
{¶4} Appellants, who brought these claims on behalf of their daughters, alleged
that, between 2017 and 2019, their daughters were injured as a result of excessive
conditioning they were made to do by Seefried and Diva. Specifically, appellants allege
they had to do excessive frog jumps, excessive butt scoots, excessive v-ups, and hang
on the bars for long periods of time. They allege this extra conditioning amounted to a
form of punishment, which breached appellees’ duty to teach, train, and instruct according
to United States of America Gymnastics (“USAG”) rules, and the duty of ordinary care for
Stark County, Case No. 2022 CA 00057 3
conducting gymnastics activities. There are no allegations of any sexual misconduct
against appellees.
{¶5} On November 20, 2020, appellant Felisha Waltz, as legal guardian of Abeka
Fouts, filed a complaint under a separate case number, alleging similar conduct and
causes of action against appellees. In the second case, appellant Waltz filed a second
amended complaint, adding appellant Courtney Hawk, as legal guardian of Samantha
Hawk, as a plaintiff in the case.
{¶6} Appellees filed answers in each of the cases, denying the allegations
against them, and arguing appellants filed their cases as a way to seek revenge on
appellees. Specifically, appellees argue that four of the five appellant gymnasts were
asked to leave Diva due to inappropriate conduct, such as harassing other gymnasts and
disobeying coaches.
{¶7} Appellees filed a motion to consolidate the cases in February of 2021.
Appellants did not oppose the motion. Accordingly, the trial court consolidated the cases
on February 19, 2021.
{¶8} Appellees filed a motion for summary judgment on October 29, 2021.
Appellants filed a memorandum in opposition on November 29, 2021. Appellees filed a
reply brief on December 8, 2021. In their reply brief, appellees moved the trial court to
strike the affidavits filed with appellants’ memorandum in opposition because the
affidavits contradict the affiants’ deposition testimony.
{¶9} After appellees filed their motion for summary judgment, appellants filed a
motion to file a third amended complaint in order to delete and/or dismiss certain counts
of the complaint. The trial court granted appellants’ motion to file a third amended
Stark County, Case No. 2022 CA 00057 4
complaint. The third amended complaint deleted/dismissed the following cases of
actions: Count Four (intentional infliction of emotional distress), Count 5 (negligent
infliction of emotional distress) and Count 7 (loss of consortium). Accordingly, the
remaining claims against appellees were negligence, negligent supervision, and “bodily
injury with mental anguish.”
{¶10} The trial court issued a judgment entry on March 23, 2022, stating it was
granting appellees’ motion for summary judgment, and stating it would issue a final
judgment entry with the court’s findings and analysis. The trial court issued its final
judgment entry on April 5, 2022. First, the trial court granted appellees’ motion to strike
the affidavits submitted by appellants in response to appellees’ motion for summary
judgment. The trial court provided, in detail, how and why each of the affidavits conflicted
with the testimony each affiant gave during their deposition testimony. The trial court
stated it would not consider the affidavits when ruling on the motion for summary
judgment.
{¶11} Next, the trial court granted appellees’ motion for summary judgment. The
court found: (1) the deposition testimony of appellants contradicts their claims that they
suffered physical injury, and appellants have provided no evidence that they suffered a
physical injury as a result of appellees’ conduct; (2) appellants’ claims are barred by the
Ohio Recreational Activity Doctrine because appellants accepted the risks inherent in the
sport by engaging in competitive gymnastics; and (3) appellants acknowledged the
inherent risk and expressly assumed the risk by signing “Release, Indemnification, and
Hold Harmless Agreements.”
Stark County, Case No. 2022 CA 00057 5
{¶12} Appellants appeal the April 5, 2022 judgment entry of the Stark County
Court of Common Pleas and assign the following as error:
{¶13} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
FINIDNG THAT OHIO’S RECREATIONAL DOCTRINE BARS APPELLANTS’ CLAIMS.
{¶14} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
BY FINDING THAT THERE WAS NO EVIDENCE OF PHYSICAL INJURY CAUSED BY
APPELLEE.
{¶15} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
BY STRIKING THE APPELLANTS’ AFFIDAVITS.”
{¶16} For ease of discussion, we will discuss appellants’ assignments of error out
of sequence.
III.
{¶17} In their third assignment of error, appellants contend the trial court
committed error in striking their affidavits. Appellants submitted affidavits of themselves
(mothers) and their daughters in response to appellees’ motion for summary judgment.
The trial court struck the affidavits, finding they conflicted with the affiants’ deposition
testimony.
{¶18} Appellants first contend the trial court could not strike the affidavits because
the proper procedure was not followed, as appellees never filed a motion to strike.
However, in the reply brief dated December 8, 2021, appellees specifically state, “[t]he
contradictions, discrepancies, and self-serving intent behind these Affidavits warrants the
Affidavits of Macy McGuffin, Angela Campagna-McGuffin, Heaven Ward, Dawn Bagnola,
Stark County, Case No. 2022 CA 00057 6
Jocelynn Benson, Shelly Benson, Abeka Fouts, Felisha Waltz, Samantha Hawk, and
Courtney Hawk be stricken from the record.”
{¶19} Appellants also contend that since the issue was raised in a reply brief, they
did not have a “procedural mechanism” to respond. However, appellants did not attempt
to strike the allegedly improper portion of the reply brief, nor did they seek leave to file a
sur-reply. This Court has previously held that when an appellant does not attempt to
strike the allegedly improper portion of the brief or seek leave to file a sur-reply, appellant
waives any error. Edwards v. Perry Twp. Board of Trustees, 5th Dist. Stark No.
2015CA00107, 2016-Ohio-5125; Carrico v. Bower Home Inspection, LLC, 5th Dist. Knox
No. 16CA21, 2017-Ohio-4057.
{¶20} Appellants also contend this Court should review the trial court’s granting of
the motion to strike under a de novo review because the striking of the affidavits took
place within the summary judgment pleading process. However, this Court has
consistently reviewed entries striking affidavits, including entries striking affidavits within
the summary judgment pleading process, under an abuse of discretion standard. Curtis
v. Schmid, 5th Dist. Delaware No. 07 CAE 11 0065, 2008-Ohio-5239; Campbell v. WEA
Belden, LLC, 5th Dist. Stark No. 2006CA00206, 2007-Ohio-1581; see also Pickens v.
Kroger Co., 10th Dist. Franklin No. 14AP-215, 2014-Ohio-4825. Pursuant to our
established precedent, we review the trial court’s striking of the affidavits under an abuse
of discretion standard. In order to find an abuse of discretion, we must find that the trial
court’s decision was unreasonable, arbitrary, or unconscionable, and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Stark County, Case No. 2022 CA 00057 7
{¶21} Affidavits that are inconsistent with earlier deposition testimony are subject
to being stricken. “An affidavit of a party opposing summary judgment that contradicts
former deposition testimony of that party may not, without sufficient explanation, create a
genuine issue of material fact to defeat the motion for summary judgment.” Byrd v. Smith,
110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47. Further, “[w]hen determining the
effect of a party’s affidavit that appears to be inconsistent with the party’s deposition and
that is submitted either in support of or in opposition to a motion for summary judgment,
a trial court must consider whether the affidavit contradicts or merely supplements the
deposition.” Id.{¶22} The trial court provided a detailed description of how each of the affidavits
contradicts the affiant’s deposition testimony. Appellants contend the affidavits were
merely condensed versions of each affiant’s deposition testimony, and the affidavits did
not contradict the deposition testimony. This Court has reviewed each of the depositions
and affidavits at issue. We find the trial court did not abuse its discretion in determining
the affidavits contradict the depositions, and concur with the trial court’s analysis in
striking each of the affidavits.
{¶23} In each of the affidavits of the appellant-daughters in this case, they averred
they were forced to do excessive conditioning as a form of punishment, and that such
conditioning hurt physically and emotionally, causing pain and injury. However, the
testimony in each of their depositions is inconsistent with or contradictory to their
deposition testimony.
{¶24} Macy McGuffin stated in her deposition that there was no part of the
conditioning at Diva she didn’t like, she did all the things she was asked to do, other than
Stark County, Case No. 2022 CA 00057 8
being yelled at, she could not remember anything wrong or inappropriate before she fell
off the bars during a meet, she did not have panic attacks, and she was not treated for
physical injury. While she first mentioned a knee injury after doing frog jumps, she then
stated she did not feel pain in her knee after the frog jumps, she did not know which knee
hurt, and she could not remember if she told anyone about knee pain that subsequently
developed. Heaven Ward testified that the physical injuries she sustained while at Diva
were “just part of the sport,” her trauma involved people blaming her for “stuff [she] didn’t
do, the extra conditioning “hurt [my] feelings” and made her upset because she thought
she didn’t deserve it; and nothing with the coaching at Diva resulted in her being physically
hurt. Jocelynn Benson stated her injuries, like a sprained ankle and callouses were “just
normal things that happened in gymnastics,” her panic attacks and anxiety may have
been caused by the general pressure put on her because expectations were really high
and she was nervous she would not meet these expectations, and it was horrible for her
at Diva because she could not handle the pressure put on her and didn’t know what to
do. The only other physical injury Benson testified to was asthma attacks, which was a
pre-existing condition that she still has today. Abeka Fouts testified the injuries she
suffered at Diva consisted of callouses on her hands after several years of gymnastics,
and an injury she sustained when she fell off the balance beam when another gymnast
threw a dodgeball at her, and that she had a counselor for other issues, but never talked
or discussed anything about Diva with the counselor. During Samantha Hawk’s
deposition testimony, there was no testimony that she received any injury from doing pull-
ups or frog jumps. Rather, she stated she sprained an ankle at practice and hurt her toe
on the bar, neither of which involved the coaches.
Stark County, Case No. 2022 CA 00057 9
{¶25} Similarly, each of the appellant-mothers’ affidavits alleged they had
personal knowledge that the excessive conditioning caused pain and injury to their
daughter. However, their deposition testimony is inconsistent with or contradicts these
averments.
{¶26} Courtney Hawk stated she never observed any conditioning used as
punishment, and her daughter never received treatment for any injuries sustained at Diva.
Felisha Waltz testified her daughter was “mentally tortured.” When asked about physical
injuries, Waltz stated she believed excessive exercises could be torture, but that she
never observed any of the excessive exercises. Waltz testified that, in the time she spent
in the gym, she never observed anything improper regarding her daughter by the
coaches, and the issue her daughter has that was caused by the coaches at Diva is that
her daughter “struggled with trusting adults.” Shelly Benson testified her daughter had
anxiety prior to enrolling at Diva, and she never had any hesitation leaving her daughter
at Diva, even though she saw other girls there crying. Benson stated she never observed
any inappropriate disciplining of her daughter by the coaches at Diva. The only physical
injury Benson noted was when her daughter sprained her ankle during a vault. Dawn
Bagnola, who attended practice regularly, testified she had no complaints while she was
there about the way the coaches were treating her daughter, she never observed the
coaches treat her daughter badly while she was there, and other than her ankle and knee
injury (incurred on a landing off the balance beam), her daughter did not injure any other
part of her body while at Diva. When asked what conduct of Seefried constituted “torture,”
Bagnola stated, “it was just a mental game with him.” Angela Campagna-McGuffin
testified she did not witness any of the incidents of extra conditioning, and the physical
Stark County, Case No. 2022 CA 00057 10
injuries Macy sustained consisted of an injury to her wrist and a sore back after she fell
at a meet.
{¶27} We find the trial court did not abuse its discretion in striking the affidavits of
appellant-mothers and appellant-daughters; and in finding appellants could not rely on
these affidavits to create a genuine issue of material fact. Appellants’ third assignment
of error is overruled.
Summary Judgment Standard
{¶28} Civil Rule 56 states, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, 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, that party being
entitled to have the evidence or stipulation construed most strongly in the
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
Stark County, Case No. 2022 CA 00057 11
{¶29} A trial court should not enter summary judgment if it appears a material fact
is genuinely disputed, nor if, construing the allegations most favorably towards the non-
moving party, reasonable minds could draw different conclusions from the undisputed
facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The
court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer
Co. v. Browning-Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A
fact is material if it affects the outcome of the case under the applicable substantive law.
Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.
1999).
{¶30} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
I.
{¶31} In their first assignment of error, appellants contend the trial court committed
error in determining the express and implied assumption of risk doctrines applied to bar
appellants’ claims.
{¶32} Three standards are used to permit recovery for injuries received during
sports and recreation activities: (1) intentional tort; (2) willful or reckless misconduct, and
(3) negligence. Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990). In this
case, appellants do not allege an intentional tort or willful or reckless misconduct.
{¶33} In order to establish a cause of action for negligence, a plaintiff must
demonstrate: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant
Stark County, Case No. 2022 CA 00057 12
breached that duty; (3) and the plaintiff suffered injury proximately caused by the
defendant’s breach of duty. Mussivand v. David, 45 Ohio St.3d 314, 544 N.E.2d 265(1989). However, when a defendant shows the plaintiff assumed the risk of injury through
participating in an inherently dangerous activity, the duty of care is eliminated. Gallagher
v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 1996-Ohio-320, 659 N.E.2d 1232(1996).
{¶34} It is well-settled that Ohio law recognizes three separate types of the
defense of assumption of the risk: express, primary, and implied. Gentry v. Craycraft,
101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116 (2004). Each of these types of
assumption of risk provides an independent defense to a negligence claim. Id.Primary Assumption of the Risk
{¶35} Primary assumption of the risk is a defense of extraordinary strength
because it essentially means “that no duty was owed by the defendant to protect the
plaintiff from that specific risk,” so a “court must proceed with caution when contemplating
whether primary assumption of the risk completely bars a plaintiff’s recovery.” Gallagher
v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 1996-Ohio-320, 659 N.E.2d 1232(1996). A successful primary assumption of the risk defense means that the duty element
of negligence is not established as a matter of law. Id. Thus, the defense prevents the
plaintiff from making a prima facie case of negligence. Id. The applicability of the primary-
assumption-of-the-risk defense presents an issue of law for the court to decide. Id.{¶36} “When 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
Stark County, Case No. 2022 CA 00057 13
that the other participant’s actions were either reckless or intentional.” Marchetti v. Kalish,
53 Ohio St.3d 95, 559 N.E.2d 699 (1990).
{¶37} The primary assumption of risk doctrine defense relieves a recreation
provider from any duty to eliminate the risks that are inherent in the activity, because such
risks cannot be eliminated. Simmons v. Quarry Golf Club, 5th Dist. Stark Nos.
2015CA00143, 2015CA00148, 2016-Ohio-525. “The types of risks associated with [an]
activity are those that are foreseeable and customary risks of the * * * recreational
activity.” Pope v. Willey, 12th Dist. Clermont No. CA2004-10-077, 2005-Ohio-4744.
{¶38} The test for applying the doctrine of primary assumption of the risk to
recreational activities and sporting events requires: (1) the danger is ordinary to the game;
(2) it is common knowledge the danger exists; and (3) the injury occurs as a result of the
danger during the course of the game. Simmons v. Quarry Golf Club, 5th Dist. Stark Nos.
2015CA00143, 2015CA00148, 2016-Ohio-525. “The nature of the sporting activity is
highly relevant in defining the duty of care owed by a particular defendant: what
constitutes an unreasonable risk, under the circumstances, of a sporting event must be
delineated with reference to the way the particular game is played, i.e., the rules and
customs that shape the participant’s idea of foreseeable conduct in the course of the
game.” Harting v. Dayton Dragons Professional Baseball Club, LLC, 171 Ohio App.3d
319, 2007-Ohio-2100, 870 N.E.2d 766 (2nd Dist. Montgomery), quoting Thompson v.
McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990).
{¶39} Appellants contend the trial court committed error in applying the primary
assumption of the risk doctrine to bar their claims in this case because the activities they
cited in their depositions (100 butt scoots, frog jumps, hanging on the bars, excessive
Stark County, Case No. 2022 CA 00057 14
conditioning) is not ordinary and inherent to the sport. Appellants cite this Court’s case
of Simmons v. Quarry Golf Club in support of their argument. 5th Dist. Stark Nos.
2015CA00143, 2015CA00148, 2016-Ohio-525. In Simmons, we held that falling into a
large, uncovered drain hole is not one of the foreseeable or inherent risks of the game of
golf, nor is it a danger ordinary to or which commonly exists in the game of golf. We
noted that while a golfer could foresee a rabbit hole may be on the golf course, a golfer
could not foresee an uncovered drain. Id.{¶40} However, in this case, unlike in Simmons, the exercises, drills, and
conditioning alleged by appellants were normal, routine, and customary during high-level
competitive gymnastics training. Seefried and Ford described conditioning that is
essential to gymnastics, specifically frog jumps and butt scoots, for core, upper body, and
leg strength. Samantha Hawk testified the Level 6 and higher gymnasts regularly did
three sets of 25 pull-ups as part of conditioning. Courtney Hawk stated her daughter had
“rips” on her hands when she first started competitive gymnastics. Jocelynn Benson
testified that, at her current gym that she likes, they spend thirty to forty minutes each
gymnastics training session conditioning, including doing leg workouts, squats, lunges,
push-ups, plank holds, v-ups, running suicides, and running endurance routines. Macy
McGuffin testified they sometimes did frog jumps as part of their daily conditioning, usually
two sets of 25, and she had no trouble doing 100 of them. Brandi Vetrone stated that she
observed the gymnasts doing butt scoots most days during conditioning. The gymnasts
described their physical injuries such as callouses, “rips” in hands, ankle injuries, muscle
soreness, and knee pain, as being “part of the sport.” A reasonable participant in high-
level competitive gymnastics would expect to encounter these risks or hazards.
Stark County, Case No. 2022 CA 00057 15
{¶41} Appellants argue that, because the excessive conditioning is a violation of
the Safe Sport Policy of the USAG, the assumption of the risk doctrine does not apply.
Appellants cite the affidavit of their expert Michael Jacki (“Jacki”), which states that
appellees “engaged in numerous violations of the USAG Safe Sport Policy resulting in
abusive behavior towards gymnasts” and the “conduct is not inherent in gymnastic
activities.”
{¶42} We first note that not every violation of a sport’s rules meets the negligence
standard, and the focus for what constitutes an unreasonable risk of harm under the
circumstances involves the examination of both the “rules and customs” associated with
the sport that shape the participants’ ideas of foreseeable conduct. Thompson v. McNeill,
53 Ohio St.3d 102, 559 N.E.2d 705 (1990) (emphasis added); see also Kumar v.
Sevastos, 8th Dist. Cuyahoga No. 109795, 2021-Ohio-1885 (“violation of safety rule, by
itself, is an insufficient basis by which to attach liability”); Brown v. Harris, 2nd Dist.
Montgomery No. 27069, 2017-Ohio-2607 (“it is clear that some actions which are outside
of the rules or customs of the sport do not create an unreasonable risk of harm”); Kalan
v. Fox, 187 Ohio App.3d 687, 2010-Ohio-2951, 933 N.E.2d 337 (11th Dist. Geauga)
(“even if physical conduct violates a rule of sport, and could potentially subject the violator
to internal sanctions prescribed by the sport itself * * * rule infractions, deliberate or
unintentional, are almost inevitable * * *).
{¶43} Further, Felisha Waltz, Dawn Bagnola, and Angela Campagna-McGuffin
testified they reported Diva and Seefried to USAG. On June 30, 2020, USAG sent a letter
to Seefried stating they “received a report alleging violations of USA Gymnastics Safe
Sport policy regarding verbal/emotional misconduct and bullying behaviors.” (Deposition
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of Seefried, Exhibit 1 to Affidavit of Donald McPherson). In the letter, USAG stated it
was ending the informal inquiry, not filing a formal complaint on the safe sport matter, and
was administratively closing the matter.
{¶44} The fact that appellants submitted an expert affidavit opining that appellees
engaged in violations of the Safe Sport Policy and that their conduct is “not inherent” in
gymnastics activities does not create a genuine issue of material fact in this case. Jacki
states in the affidavit attached to his report that he reviewed and relied upon, for the
opinions stated in the affidavit, “the affidavits of the plaintiffs, and their mothers,” and the
depositions of Ford, Seefried, Jose Alvarez, Brian Strickmaker, and Brandi Vetrone. Jacki
did not review the depositions of either the appellant-mothers or the appellant-daughters
in order to form the opinions in the affidavit. He did review the affidavits of appellants;
however, as detailed above, these affidavits were inconsistent and/or conflicted with the
depositions of appellants, specifically with regards to the types of injuries suffered and as
to what the appellant-mothers actually witnessed. “It is well-established that a court may
disregard conclusory allegations in an affidavit unsupported by factual material in the
record.” H&H Properties v. Hodkinson, 10th Dist. Franklin No. 10AP-117, 2010-Ohio-
5439.
{¶45} We find the trial court did not commit error by holding the primary
assumption of the risk doctrine applies to bar appellants’ negligence claims against
appellees.
Express Assumption of the Risk
{¶46} Appellants argue the trial court committed error in applying the express
assumption of the risk doctrine to bar their claims because the release the parents signed
Stark County, Case No. 2022 CA 00057 17
only covers “inherent” risks, and the risks in this case are not inherent to gymnastics;
further, that the release failed to identify the precise activity which resulted in injury.
{¶47} Each appellant-mother signed a document entitled “Release,
Indemnification, and Hold Harmless Agreement” (“Release”) prior to any of the incidents
alleged in the complaint. Each appellant-mother in this case admitted in their deposition
to signing the Release when registering their appellant-daughter for gymnastics at Diva.
Angela Campagna-McGuffin signed the release on June 7, 2016, Dawn Bagnola signed
the Release on June 3, 2017, Shelly Benson signed the Release on April 27, 2017,
Felisha Waltz signed the Release on June 2, 2017, and Courtney Hawk signed the
Release on July 13, 2019.
{¶48} The Release states as follows:
* * * I hereby agree to release and discharge from liability arising from
negligence DIVA GYMNASTICS ACADEMY, INC. and its owners, directors,
officers, employees, agents, volunteers, participants, and all other persons
or entities acting for them (hereinafter collectively referred to as
“Releasees”) on behalf of myself and my children * * *, and also agree as
follows:
1. I acknowledge that GYMNASTICS involves known and unanticipated
risks which could result in physical or emotional injury * * * risks include, but
are not limited to, gymnastics, tumbling, cheering, high bars, low bars, beam
training activities, exhibitions, demos and open gym, resulting in injuries and
other medical conditions from physical activity; and damaged clothing or
other property. I understand such risks simply cannot be eliminated, despite
Stark County, Case No. 2022 CA 00057 18
the use of safety equipment, without jeopardizing the essential qualities of
the activity.
2. I expressly accept and assume all of the risks inherent in this activity or
that might have been caused by the negligence of the Releasees. My
participation in this activity is purely voluntary and I elect to participate
despite the risks. In addition, if at any time I believe that event conditions
are unsafe or that I am unable to participate due to physical or mental
conditions, then I will immediately discontinue participation.
3. I hereby voluntarily release, forever discharge, and agree to indemnify
and hold harmless Releasees from any and all claims, demands, or causes
of action which are in any way connected with my participation in this
activity, or my use of their equipment or facilities, arising from negligence.
This release does not apply to claims arising from intentional conduct. * * *
By signing this document, I agree that if I am hurt or my property is
damaged during my participation in this activity, then I may be found
by a court of law to have waived my rights to maintain a lawsuit against
the parties being released on the basis of any claim for negligence.
I have had sufficient time to read this entire document and, should I choose
to do so, consult with legal counsel prior to signing. Also, I understand that
this activity might not be made available to me or that the cost to engage in
this activity would be significantly greater if I were to choose not to sign this
release, and agree that the opportunity to participate at the stated cost in
Stark County, Case No. 2022 CA 00057 19
return for the execution of this release is a reasonable bargain. I have read
and understood this document and I agree to be bound by its terms.
PARENT OR GUARDIAN ADDITIONAL AGREEMENT
In consideration of [minor’s name] being permitted to participate in this
activity, I further agree to indemnify and hold harmless Releasees from any
claims alleging negligence which are brought or on behalf of minor or are in
any way connected with such participation by [minor].
{¶49} Express assumption of the risk is a separate and independent bar to
recovery from the doctrine of primary assumption of the risk. Hague v. Summit Acres
Skilled Nursing & Rehabilitation, 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404.
{¶50} Valid exculpatory clauses or releases constitute express assumption of risk,
and is the same as waiving the right to recover. Anderson v. Ceccardi, 6 Ohio St.3d 110,
451 N.E.2d 780 (1983). A participant in a recreational activity is free to contract with the
proprietor of such activity to relieve the proprietor of responsibility for damages or injuries
to the participant caused by negligence, except when it is caused by wanton or willful
misconduct. Lamb v. University Hospitals Health Care Enterprises, Inc., 8th Dist.
Cuyahoga No. 73144, 1998 WL 474183. Appellants do not allege wanton or willful
misconduct in this case. Parents have the authority to bind their minor children to
exculpatory agreements in favor of sponsors of sports activities where the cause of action
sounds in negligence. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 1998-Ohio-
389, 696 N.E.2d 210 (1998).
{¶51} For express assumption of the risk to operate as a bar to recovery, the party
waiving his or her right to recover must make a conscious choice to accept the
Stark County, Case No. 2022 CA 00057 20
consequences of the other party’s negligence. Lamb v. University Hospitals Health Care
Enterprises, Inc., 8th Dist. Cuyahoga No. 73144, 1998 WL 474183. The waiver must be
clear and unequivocal. Id. Releases from liability are narrowly construed; however,
courts routinely apply such releases to bar future tort liability as long as the intent of the
parties, with regard to exactly what kind of liability and what persons and/or entities are
being released, is stated in clear and unambiguous terms. Glaspell v. Ohio Edison Co.,
29 Ohio St.3d 44, 505 N.E.2d 264 (1987); Hague v. Summit Acres Skilled Nursing &
Rehabilitation, 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404.
{¶52} In this case, the Release clearly specified the kind of liability released, as
the Release contains the word “negligence” multiple times. It also clearly specifies the
persons and/or entities being released (Diva, its owners, directors, officers, employees,
agents, volunteers, participants, and all other persons or entities acting for them). The
language contained in the Release is sufficiently clear and unambiguous such that the
express assumption of the risk defense bars recovery. See Geczi v. Lifetime Fitness,
10th Dist. Franklin No. 11AP-950, 2012-Ohio-2948 (use of word “negligence” and parties
being released sufficient for express assumption of risk); Goss v. USA Cycling, 8th Dist.
Cuyahoga No. 111084, 2022-Ohio-2500 (use of words “release” and “negligence”
sufficient for express assumption of risk); Grange Mut. Cas. Co. v. Buckeye Lake Marina,
Inc., 5th Dist. Fairfield No. 2011-CA-00027, 2011-Ohio-6465.
{¶53} Appellants contend since the word “conditioning” does not appear in the
Release, their claims are not barred. However, appellants expressly assumed the risk
for “gymnastics, tumbling, cheering, high bars, low bars, beam training, activities,
exhibitions, demos and open gym.” Further, the language in the Release states that “risks
Stark County, Case No. 2022 CA 00057 21
include, but are not limited to,” the list above. In the second paragraph of the Release,
appellants expressly “assume[d] all of the risk inherent in this activity.” By signing the
Release, appellants acknowledged gymnastics involves “known and unanticipated risks
which could result in physical or emotional injury.”
{¶54} Appellants additionally argue they did not expressly assume liability
because the risks suffered by appellants during “excessive conditioning” are not inherent
risks within the sport of gymnastics. As noted above, the Release specifically includes
“known and unanticipated risks,” including risks that “could result in physical or emotional
injury.” Further, as detailed above, the exercises, drills, and conditioning alleged by
appellants were normal, routine, and customary during high-level competitive gymnastics
training.
{¶55} We find the language contained in the Release is sufficiently clear and
unambiguous. Appellants expressly assumed the risks they describe in their depositions.
Accordingly, the express assumption of the risk defense is a separate and independent
bar to recovery in this case.
{¶56} Appellants’ first assignment of error is overruled.
II.
{¶57} In their second assignment of error, appellants contend the trial court
committed error in granting summary judgment by finding there was no evidence of
physical injury caused by appellees. Appellants argue the trial court improperly focused
only on the lack of medical treatment in its analysis and that, even if appellants received
no medical treatment for their injuries, they could still produce evidence of physical injury.
Stark County, Case No. 2022 CA 00057 22
{¶58} As an alternative and independent basis for granting summary judgment,
the trial court found appellants could not meet the third part of the negligence test, i.e.,
that appellants suffered injury proximately caused by appellees’ breach of duty.
Appellants claim the trial court based its decision solely on the lack of medical treatment.
However, the trial court did not base its decision solely on the lack of medical treatment
of appellants; rather, the trial court based its decision on lack of injury proximately caused
by appellees. The trial court specifically stated, “the deposition testimony of appellants
contradicts their claims that they suffered physical injury, and appellants have provided
no evidence that they suffered a physical injury as a result of appellees’ conduct.”
{¶59} Appellants argue a plaintiff can recover damages for emotional distress and
mental anguish associated with a contemporaneous physical injury. However, the cases
cited by appellants in support of this argument are cases where the claim at issue was
negligent infliction of emotional distress, not ordinary negligence. Paugh v. Hanks, 6 Ohio
St.3d 72, 451 N.E.2d 759 (1983) (“a cause of action may be stated for negligent infliction
of serious emotional distress without the manifestation of a resulting physical injury” if the
emotional injuries are severe, debilitating, and reasonably foreseeable); Heiner v.
Moretuzzo, 73 Ohio St.3d 80, 1995-Ohio-65, 652 N.E.2d 664 (Ohio does not recognize a
claim for negligent infliction of emotional distress where the distress is caused by the
plaintiff’s fear of a non-existent physical peril); Loudin v. Radiology & Imaging Services,
Inc., 128 Ohio St.3d 555, 2011-Ohio-1817 (courts have allowed recovery for emotional
distress accompanied by injury); see also C.R. Withem Enterprises v. Maley, 5th Dist.
Fairfield No. 01 CA 54, 2002-Ohio-5056 (affirming trial court’s determination that
Stark County, Case No. 2022 CA 00057 23
compensatory damages for mental anguish must accompany a physical injury and must
stem from a negligent act).
{¶60} In a negligent infliction of emotional distress claim, a plaintiff can recover for
negligently inflicted emotional and psychiatric injuries accompanied by contemporaneous
physical injury, and may include damages for mental anguish, emotional distress, anxiety,
grief, or loss. Binns v. Fredendall, 32 Ohio St.3d 244, 513 N.E.2d 278 (1987). Negligent
infliction of emotional distress is a separate and distinct cause of action, requiring different
elements than an ordinary negligence claim. In their third amended complaint, appellants
deleted/dismissed their claims of intentional and negligent infliction of emotional distress.
During their depositions, the harm described by appellants included struggling to trust
adults, general pressure, nervousness from high expectations, being pushed past their
limit, anxiety, treating them with disrespect, being “too much,” and crying. Appellant-
daughters did not identify any physical injury that was proximately caused by appellees’
conduct. Rather, the physical injuries they described were legitimate sporting injuries
inherent to high-level gymnastics training, and were not caused by appellees’ conduct.
Appellant-mothers did not witness any physical injuries proximately caused by appellees’
conduct.
{¶61} Appellants contend Jacki’s affidavit is sufficient to create a genuine issue of
material fact as to physical injury caused by appellees’ conduct because Jacki opines
that, “as a direct and proximate result of this failure by the Defendants to comply and
oversee, the Plaintiffs * * * were subjected to unreasonable and unnecessary over-
conditioning that would cause girls their age physical discomfort as well as unnecessary
injury and emotional distress.” However, as detailed above, Jacki did not review the
Stark County, Case No. 2022 CA 00057 24
depositions of appellants in rendering his opinion. He only reviewed appellants’ affidavits,
which contained contradictory information about the injuries appellants’ claimed in their
affidavits.
{¶62} We find the trial court did not commit error in determining appellants could
not meet the third part of the negligence test, i.e., that appellants suffered injury
proximately caused by appellees’ breach of duty. Appellants’ second assignment of error
is overruled.
{¶63} Based on the foregoing, appellants’ assignments of error are overruled.
{¶64} The April 5, 2022 judgment entry of the Stark County Court of Common
Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Baldwin, J., concur