Peterson v. Natl. Sec. Assoc., Inc. , 2018 Ohio 2905 ( 2018 )

[Cite as Peterson v. Natl. Sec. Assoc., Inc., 2018-Ohio-2905.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Robert J. Peterson et al., :
Plaintiffs-Appellants :
v. : No. 17AP-39
(C.P.C. No. 10CV-12611)
Randy Martyn, :
(REGULAR CALENDAR)
Defendant-Appellee :
National Security Associates, Inc. et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on July 24, 2018
On brief: J.C. Ratliff, Jeff Ratliff, and Rocky Ratliff, for
appellants. Argued: Jeff Ratliff.
On brief: Michael R. Szolosi, Jr., LLC, and Michael R. Szolosi,
Jr., for Randy Martyn. Argued: Michael R. Szolosi, Jr.
On brief: Isaac Wiles Burkholder & Teetor, LLC, Brian M.
Zets, and Dale D. Cook, for defendants-appellees Gahanna
Police Department and Sergeant James Graham. Argued:
Brian M. Zets.
APPEAL from the Franklin County Court of Common Pleas
BROWN, P.J.
{¶ 1} Plaintiffs-appellants, Robert J. Peterson ("Peterson"), and his wife Heidi
Peterson, appeal from a judgment of the Franklin County Court of Common Pleas, granting
the motions for summary judgment of defendants-appellees, the Gahanna Police
No. 17AP-39 2
Department ("GPD"), Sergeant James Graham, and Randy Martyn. For the following
reasons, we reverse.
{¶ 2} On August 26, 2010, appellants filed a complaint against National Security
Associates, Inc., Martyn, GPD, Graham, and the city of Columbus. The complaint asserted
claims of negligence, recklessness, negligent training, negligent supervision, negligent
hiring, respondeat superior, and loss of consortium. Appellants later dismissed National
Security Associates, Inc. and the city of Columbus from the action. The events giving rise to
the complaint occurred on August 26, 2008, when Peterson was injured during an
explosive breaching training at the Columbus bomb range.
{¶ 3} At the time of his injury, Peterson was an Ohio State Highway Patrol
("OSHP") state trooper, and a member of OSHP's special response team. OSHP's special
response team trained in explosive breaching, which involves detonating an explosive
device on the door or window of a building to breach the structure so officers can enter the
building.
{¶ 4} In 2008, OSHP asked Martyn if he would teach a week-long explosive
breaching seminar to members of OSHP's special response team. Martyn was a certified
master breacher for the United States Army and had "taught explosive breaching to over
1,000 military and law enforcement personnel." (Martyn Depo. at 12.) In his civilian
capacity, Martyn worked as an officer for GPD.
{¶ 5} Martyn agreed to teach the course, and OSHP agreed to pay Martyn $500 per
student for the following OSHP members to attend the course: Sergeant Mike Kemmer,
Trooper Eli Rivera, Trooper Robert Peterson, Trooper Seth Douthitt, Trooper Erik Lofland,
and Trooper Rick Tocash. Although Peterson was already certified in advanced explosive
breaching, some of the other OSHP members had not received any formal training in
explosive breaching before the 2008 course.
{¶ 6} Two members of GPD, Graham, and Detective John Power, attended the
course for free. Graham had never detonated an explosive before the 2008 seminar, but
had attended a training where Martyn showed members of GPD's SWAT team "some of the
tactics and things that went along with explosive breaching." (Graham Depo. at 10.)
{¶ 7} The first day of the seminar, August 25, 2008, consisted of eight hours of
classroom instruction at OSHP's academy. On the second day of the seminar, the class went
No. 17AP-39 3
to the Columbus bomb range to practice constructing and detonating explosives. The bomb
range had a pavilion area where students would construct the charges, and a separate area
with a structure where the explosives would be detonated.
{¶ 8} Peterson and Graham were both back in the pavilion constructing charges
during the first two detonations of the August 26, 2008 training. Although Graham stated
that he "did not hear the sequence on the first two shots," Peterson testified he heard the
"highway patrol procedure for the shot, the command to detonate" utilized during the first
two shots. (Graham Depo. at 23; Peterson Depo. at 49.) OSHP's shot sequence consists of
"three fire in the hole announcements," followed by the commands "this is the commander,
I have control, stand by, stand by, go." (Peterson Depo. at 57.)
{¶ 9} The third shot of the day was a 300 grain flex linear charge. Martyn approved
the construction of this charge, and informed the class it was "a fragmentation producing
type charge" and "a dangerous shot." (Martyn Depo. at 86; Douthitt Depo. at 70.) After
constructing the charge, a group consisting of Douthitt, Lofland, Tocash, Power, Peterson,
and Graham took the charge up to a door on the breaching structure. Graham was chosen
to be the person who would detonate the charge, known as the primary breacher. The
primary breacher had the duty of checking the open area to ensure it was clear before
detonating the charge. (See Kemmer Depo. at 71-72; Martyn Depo. at 73; Peterson Depo. at
174; and Douthitt Depo. at 29-30.)
{¶ 10} After placing the charge, the group retreated "behind the corner of the facade"
of the breaching structure. (Peterson Depo. at 74, 76.) Once behind the facade, Peterson
became concerned about the whereabouts of those not in the group. Peterson stated that
he touched Graham, and said "hang on a second. Show me the detonator, which is - - which
is a two piece plunger-type detonator." (Peterson Depo. at 80.) Graham showed him "the
two pieces. [Peterson] said, keep it like that. I'm going to go out here and make sure
everybody is behind cover." (Peterson Depo. at 81.) Graham, however, testified that
Peterson never said anything to him after they had retreated behind the facade.
{¶ 11} Peterson walked out into the open area and called out to let the others know
"we're getting ready to blow this." (Peterson Depo. at 81.) Peterson stated that "Randy and
Mike and Jim moved to cover. Ely assured me he was behind cover." (Peterson Depo. at
81.) As Peterson was walking back to the facade, he started yelling out the fire in the hole
No. 17AP-39 4
announcements. Peterson explained that it was common to yell the fire in the hole
commands out before reaching cover "[b]ecause you're yelling it to the area" to alert others
that an explosion is about to occur and, thus, want to be "in a position that" others "see
[you] and hear [you]." (Peterson Depo. at 191-92.) As Peterson "started to say the third fire
in the hole, the blast [was] detonated." (Peterson Depo. at 82.)
{¶ 12} Graham recalled the incident differently. Graham testified that, after the
group retreated behind the facade, he looked out into the open area and made a 180 degree
view, panning from left to right, and saw "no one in the open area." (Graham Depo. at 48.)
Lofland did not "believe" Graham looked out into the open area before detonating the
charge, as Lofland saw Graham crouched "behind the wall kind of locked in on the
initiator." (Lofland Depo. at 37.)
{¶ 13} Graham testified that he, not Peterson, yelled out the fire in the hole
commands, and that he initiated the charge after yelling out the third fire in the hole
command. Graham explained GPD's shot sequence was simply "fire in the hole, fire in the
hole, fire in the hole." (Graham Depo. at 14.)
{¶ 14} Peterson was "[a] couple of steps out" from the facade when the blast
occurred. (Peterson Depo. at 88.) Fragmentation from the charge hit Peterson's left leg.
Immediately after the explosion, Peterson "looked at Graham" and said "what the hell? And
[Graham] said, we go on the third fire in the hole." (Peterson Depo. at 98.) The other class
participants applied pressure to Peterson's leg until an ambulance arrived.
{¶ 15} Every student of the August 2008 explosive breaching seminar testified that
Martyn never discussed a shot sequence with the class before Peterson's injury. (See
Peterson Depo. at 60-62; Graham Depo. at 15; Tocash Depo. at 26; Douthitt Depo. at 27;
Kemmer Depo. at 33; Rivera Depo. at 50; Lofland Depo. at 24; and Power Depo. at 18.) The
participants who had attended other explosive breaching training seminars in the past
testified that, at those previous courses, the course instructor would inform the class of the
shot sequence the participants were to utilize during the class. (See Peterson Depo. 59-60;
Douthitt Depo. at 15; Kemmer Depo. at 33-34.) Rivera testified that, if Martyn "would have
gone over this - - the shot protocol, this [accident] wouldn't have happened." (Rivera Depo.
at 85.)
No. 17AP-39 5
{¶ 16} Martyn, however, testified he did discuss a shot sequence with the class.
Martyn stated he went over the shot sequence "twice" during the first day of the seminar,
noting it was on a powerpoint slide and "was also in a video." (Martyn Depo. at 84.) The
shot sequence Martyn told the students to use was "I have control, I have control, I have
control and then stand by," and then a count down of five, four, three, two, one, and on the
"wh" of one, the charge was to be detonated. (Martyn Depo. at 29-30.)
{¶ 17} On February 15, 2013, Martyn filed a Civ.R. 56 motion for summary
judgment. Martyn asserted that appellants had failed to establish he breached any standard
of care, and Martyn filed his affidavit with the motion averring that he met his duty of care
to the training participants. Martyn further asserted that primary assumption of risk barred
appellants' negligence claims, as Peterson had voluntarily participated in the inherently
dangerous activity of explosive breaching.
{¶ 18} GPD and Graham filed a joint Civ.R. 56 motion for summary judgment on
February 15, 2013. GPD argued it was not capable of being sued, as it was not a political
subdivision. Graham argued he was immune from Peterson's negligence claims, pursuant
to R.C. 2744.03(A)(6), and that he had not acted recklessly.
{¶ 19} On March 19, 2013, appellants filed memoranda contra appellees' motions
for summary judgment. Appellants argued that Martyn owed Peterson "the duty imposed
upon a teacher or instructor [which] is one of ordinary and reasonable care for the safety of
his students," and that Martyn breached this duty by failing to instruct the students
regarding the shot sequence they were to use during his class. (Appellants' Memo Contra
to Martyn's Mot. for Summ. Jgmt. at 12.) Appellants asserted that primary assumption of
risk did not apply to the facts of the case, as "the risks associated with being a student in a
controlled training exercise for the Ohio State Highway Patrol [were] not readily
foreseeable as a matter of law." (Appellants' Memo Contra to Martyn's Mot. for Summ.
Jgmt. at 23.)
{¶ 20} Appellants argued that GPD was capable of being sued, and that Graham was
not entitled to immunity. Appellants asserted that Graham "owed Peterson a duty as the
primary breacher," and that Graham had "failed to look and see if anyone was in the
detonation area" before detonating the charge. (Appellants' Memo Contra to GPD and
Graham's Mot. for Summ. Jgmt. at 22.)
No. 17AP-39 6
{¶ 21} On November 29, 2016, GPD and Graham filed a motion for a status
conference noting that dispositive motions had been pending in the action since 2013.
{¶ 22} On December 14, 2016, the trial court issued a decision and entry granting
appellees' motions for summary judgment. The court concluded that, because "detonating
explosives [is] a dangerous activity" and Peterson "was aware of the risk of injury" from a
blast, "primary assumption of risk completely bar[red] any negligence claim." (Decision
at 4.) The court further held that neither Martyn nor Graham had acted recklessly.
{¶ 23} Appellants appeal, assigning the following errors for our review:
[I.] The Trial Court committed reversible error when it
misapplied the Primary Assumption of the Risk Doctrine to the
facts and circumstances of this case and granted Summary
Judgment to Defendant[s]-Appellees.
[II.] The Trial Court committed reversible error by granting
Summary Judgment when it found that Appellee Randy
Martyn did not engage in reckless conduct.
[III.] The Trial Court committed reversible error by granting
Summary Judgment when it found that Appellee James
Graham did not engage in reckless conduct.
[IV.] The Trial Court committed reversible error when the trial
court found that Appellee Gahanna Police Department and
Appellee James Graham were immune from liability.
{¶ 24} Appellate review of summary judgment motions is de novo. Helton v. Scioto
Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). "When reviewing a trial
court's ruling on summary judgment, the court of appeals conducts an independent review
of the record and stands in the shoes of the trial court." Mergenthal v. Star Banc Corp.,
122 Ohio App.3d 100, 103 (12th Dist.1997). We must affirm the trial court's judgment if
any of the grounds raised by the movant at the trial court are found to support it, even if the
trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101 Ohio App.3d 38,
41-42 (9th Dist.1995).
{¶ 25} Summary judgment is proper only when the party moving for summary
judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds could come to
but one conclusion and that conclusion is adverse to the party against whom the motion for
No. 17AP-39 7
summary judgment is made, that party being entitled to have the evidence most strongly
construed in that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations
Bd., 78 Ohio St.3d 181, 183 (1997).
{¶ 26} When seeking summary judgment on grounds that the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial court
of the basis for the motion and identifying those portions of the record that demonstrate
the absence of a genuine issue of material fact on an essential element of the non-moving
party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party does not
discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that
the non-moving party has no evidence to prove its case. Id. Rather, the moving party must
affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the
non-moving party has no evidence to support its claims. Id. If the moving party meets its
burden, then the non-moving party has a reciprocal burden to set forth specific facts
showing that there is a genuine issue for trial. Civ.R. 56(E); Dresher at 293. If the non-
moving party does not so respond, summary judgment, if appropriate, shall be entered
against the non-moving party. Id.{¶ 27} Appellants' first assignment of error asserts the trial court erred by applying
primary assumption of risk to the facts of the case. Appellants contend that implied
assumption of risk, rather than primary assumption of risk, applies herein.
{¶ 28} To establish actionable negligence, one must show the existence of a duty, a
breach of the duty, and an injury resulting proximately therefrom. Menifee v. Ohio Welding
Prods. Inc., 15 Ohio St.3d 75, 77 (1984); Strother v. Hutchinson, 67 Ohio St.2d 282, 285
(1981). A defendant's duty to a plaintiff depends upon the relationship between the parties
and the foreseeability of injury to someone in the plaintiff's position. Simmers v. Bentley
Constr. Co., 64 Ohio St.3d 642, 645 (1992). If a reasonably prudent person would have
anticipated that an injury was likely to result from a particular act, the court could find that
the duty element of negligence is satisfied. Texler v. D.O. Summers Cleaners & Shirt
Laundry Co., 81 Ohio St.3d 677, 680 (1998).
{¶ 29} "Ohio law recognizes three categories of assumption of the risk as defenses
to a negligence claim: express, primary, and implied or secondary." Schnetz v. Ohio Dept.
of Rehab. & Corr., 195 Ohio App.3d 207, 2011-Ohio-3927, ¶ 21 (10th Dist.), citing Crace
No. 17AP-39 8
v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10 (10th Dist.). Express
assumption of a risk occurs when parties to a contract agree to a release of liability.
Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008-Ohio-1421, ¶ 7.
{¶ 30} "Under the doctrine of primary assumption of the risk, a plaintiff who
voluntarily engages in a recreational activity or sporting event assumes the inherent risks
of that activity and cannot recover for injuries sustained in engaging in the activity unless
the defendant acted recklessly or intentionally in causing the injuries." Morgan v. Ohio
Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 13,
citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-
3656, ¶ 12 (10th Dist.). "The rationale behind the doctrine is that certain risks are so
intrinsic in some activities that the risk of injury is unavoidable." Id. Thus, by
participating in the activity, the plaintiff "tacitly consent[s]" to the risk of injury inherent
in the activity. Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.1987).
The doctrine applies to both spectators and participants alike. Gentry v. Craycraft, 101
Ohio St.3d 141, 2004-Ohio-379, ¶ 10. See Cincinnati Base Ball Club Co. v. Eno, 112 Ohio
St. 175, 180-81 (1925) (explaining that, as it is "common knowledge that in baseball games
hard balls are thrown and batted with great swiftness, that they are liable to be thrown or
batted outside the lines of the diamond, and that spectators in positions which may be
reached by such balls assume the risk thereof").
{¶ 31} "[A] successful primary assumption of risk defense means that the duty
element of negligence is not established as a matter of law." Gallagher v. Cleveland
Browns Football Co., 74 Ohio St.3d 427, 431-32 (1996). The defense thus prevents a
plaintiff from making a prima facie negligence case, and is perhaps "more appropriately
called the no-duty rule." Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-
Ohio-1390, ¶ 18. Whether to apply the defense of primary assumption of the risk presents
an issue of law for the court to determine. Crace at ¶ 12, citing Gallagher at 435.
{¶ 32} To succeed on a primary assumption of risk defense, it must be shown that
(1) the danger is ordinary to the activity, (2) it is common knowledge that the danger
exists, and (3) the injury occurs as a result of the danger during the course of the activity.
Santho at ¶ 12. See also Gentry at ¶ 10, citing Thompson v. McNeill, 53 Ohio St.3d 102,
104 (1990).
No. 17AP-39 9
{¶ 33} To determine the ordinary or inherent risks of an activity, a court must
"focus[] exclusively upon the activity itself." Schnetz at ¶ 28. "The types of risks associated
with the activity are those that are foreseeable and customary risks of the activity." Foggin
v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 9. Thus,
"primary assumption of 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 risk is appropriate."
Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307 (June 12, 1997). See also
Gallagher at 432 (noting that "only those risks directly associated with the activity in
question are within the scope of primary assumption of risk"); Crace at ¶ 16 (noting that
the injured plaintiff's "subjective consent to and appreciation for the inherent risks are
immaterial to the [primary assumption of risk] analysis").
{¶ 34} For example, in Ochall v. McNamer, 10th Dist. No. 15AP-772, 2016-Ohio-
8493, this court held that the inherent risks of go-karting included "running into other
go-karts on the track, or deviating from the track and running into any object present
around the track." Id. at ¶ 49. As such, the plaintiff in Ochall primarily assumed the risk
of injury "when she stood 10 to 12 feet away from the [appellees'] go-kart track while a go-
kart race was in process." Id. at ¶ 50. See also Morgan at ¶ 17 (holding that primary
assumption of risk barred the plaintiff's negligence action, as hiking involved "the risk of
tripping, slipping and falling," and the plaintiff was injured when he fell while hiking);
Thompson at 106 (holding that, as "[s]hanking the ball is a foreseeable and not
uncommon occurrence in the game of golf," the plaintiff primarily assumed the risk of
being hit by a golf ball by playing the game of golf); Brumage v. Green, 2d Dist. No. 2014-
CA-7, 2014-Ohio-2552, ¶ 14; Blankenship v. CRT Tree, 8th Dist. No. 80907, 2002-Ohio-
5354, ¶ 44.
{¶ 35} Primary assumption of risk has been applied to activities which are not
typically considered recreational activities, when the risk of injury is inherent to the
activity and cannot be eliminated. See Foggin at ¶ 13 (holding that primary assumption
of risk applied to the activity of climbing a ladder); Cave v. Burt, 4th Dist. No. 03CA2730,
2004-Ohio-3442, ¶ 19 (holding that primary assumption of risk applied to "[r]iding on a
car's trunk lid," because "the risks associated with it cannot be eliminated"); Miljkovic v.
No. 17AP-39 10
Greater Cleveland Regional Transit Auth., 8th Dist. No. 77214 (Oct. 12, 2000) (applying
primary assumption of risk when the plaintiff "voluntarily chose to cross the railroad tracks
as a matter of convenience"); Wagner v. Kretz, 3d Dist. No. 1-17-24, 2017-Ohio-8517, ¶ 20
(applying primary assumption of risk to the activity riding on a parade float).
{¶ 36} The remaining category of assumption of risk, implied assumption of risk, is
defined as the "plaintiff's consent to or acquiescence in an appreciated, known or obvious
risk to plaintiff's safety." Collier at 37. "Implied assumption of the risk does not relieve
defendant of his duty to plaintiff." Id. at paragraph two of the syllabus. Thus, implied
assumption of risk "exists when a plaintiff, who fully understands the risk of harm to
himself, nevertheless voluntarily chooses to subject himself to it, under circumstances
that manifest his willingness to accept the risk." Cappelli v. Youngstown Area Community
Action Council, 7th Dist. No. 05 MA 175, 2006-Ohio-4952, ¶ 16.
{¶ 37} Implied assumption of risk has been merged into Ohio's comparative
negligence statute, R.C. 2315.33. Anderson v. Ceccardi, 6 Ohio St.3d 110 (1983), paragraph
one of the syllabus. See also Cave at ¶ 17 (noting that it is "because the plaintiff knew of the
danger involved and acquiesced to it" that the plaintiff's "claim may be barred under
comparative negligence principles"). Pursuant to the comparative negligence statute, the
trier of fact must apportion relative degrees of fault between the plaintiff and the defendant
in deciding the issue of negligence. Collier at 39. Thus, implied assumption of risk
"ordinarily involves questions of fact that generally are to be decided by the fact finder."
Durnell v. Raymond Corp., 10th Dist. No. 98AP-1577 (Nov. 16, 1999).
{¶ 38} The distinction between primary and implied assumption of risk rests on the
risk at issue in the case. "[O]nly those risks directly associated with the activity in question
are within the scope of primary assumption of risk, so that no jury question would arise
when an injury resulting from such a direct risk is at issue." Gallagher at 432, citing Eno.
However, when a case presents "attendant circumstances that raise questions of fact
whether an injured party assumed the risk in a particular situation," the doctrine of
"implied assumption of risk, not primary assumption of risk, would be applicable." Id.{¶ 39} For example, in Aber v. Zurz, 175 Ohio App.3d 385, 2008-Ohio-778 (9th
Dist.), the court observed that although "falling off a tube and sustaining facial injuries
[was] a foreseeable risk of tubing at a typical, reasonable, speed," the "specific facts" of the
No. 17AP-39 11
case demonstrated that the "risk was elevated by the speed of the boat and other conditions
solely under [the defendant's] control." Id. at ¶ 14. In Aber, the defendant admitted he was
driving the boat " 'too fast for the conditions that day,' " and other boat passengers testified
that "they had never seen [defendant] go as fast as he did" on the day of the plaintiff's injury.
Id. at ¶ 13. The court found primary assumption of risk inapplicable, as the injury occurred
"after falling off the tube at a high rate of speed," and the plaintiff "could not have foreseen
this elevated risk." (Emphasis sic.) Id. at ¶ 14.
{¶ 40} In Byer v. Lucas, 7th Dist. No. 08-NO-351, 2009-Ohio-1022, the plaintiff
was injured while participating in a hayride. The court observed that, although the
"inherent risks of a hayride might include getting scratched by tree branches, being
bounced around on the wagon, and even losing one's balance and falling off the wagon,"
the specific risks which resulted in the plaintiff's injury were "risks that extended well
beyond the ordinary" risks "associated with a hayride." Id. at ¶ 30. The evidence
demonstrated that the driver "chose to take the hayride down * * * a steep hill," resulting
in the "tractor and its wagon cascading down a steep hill out of control and jackknifing to
a stop throwing passengers from it." Id. at ¶ 30, 39. As these were not "inherent risk[s]
of a hayride," the court concluded that primary assumption of risk did not apply to the
facts of the case. Id. at ¶ 39.
{¶ 41} The activity at issue in the present case is an explosive breaching training
seminar involving students from OSHP and GPD, with Martyn as the course instructor.
Under the first element of a primary assumption of risk analysis, we must determine
whether the danger or risk at issue was ordinary to the activity. Santho at ¶ 12.
{¶ 42} The present activity did not involve individuals detonating explosives at
random with no set procedure. To the contrary, this was a class for law enforcement
personnel to learn how to properly and effectively detonate explosives in order to breach a
structure. OSHP used a particular shot sequence to signal when a detonation was to occur.
GPD used a different shot sequence to signal when a detonation was to occur. Although this
fact is in dispute, Martyn testified he instructed the class participants regarding the
particular shot sequence they were to utilize during his class. Accordingly, the evidence
demonstrates that, at an explosive breaching training, a shot sequence precedes the
No. 17AP-39 12
detonation of the explosive and signals to the primary breacher when to detonate the
charge.
{¶ 43} Explosive breaching training carries certain inherent risks, including the risk
of being struck by fragmentation from an explosive. Even when all participants utilize the
same shot sequence, accidents can occur and injury from an explosion may result.
However, the present case presents an issue of fact regarding attendant circumstances
which would elevate the risks at issue beyond the ordinary risks of an explosive breaching
training. Viewing the evidence in a light most favorable to Peterson, Martyn never
instructed the August 2008 course participants regarding the shot sequence they were to
utilize during his class. The likelihood of injury from an explosion at an explosive breaching
training is greatly increased beyond the general, ordinary risk of an injury from an
explosion when class participants utilize different shot sequences because they were not
instructed as to a cohesive shot sequence.
{¶ 44} The risk that explosive breaching training class participants would utilize
different shot sequences because they were not instructed regarding the shot sequence they
were to use during the class would not be an ordinary risk of an explosive breaching
training. Therefore, there is an issue of fact to be resolved by the trial court to determine
whether primary assumption of risk would be applicable in this case.
{¶ 45} Accordingly, the trial court erred in granting appellees' motions for summary
judgment on the basis of primary assumption of risk. The record presents genuine issues of
material fact regarding whether Martyn instructed the August 2008 class participants,
prior to Peterson's injury, as to the shot sequence they were to utilize during his class. On
remand, if the trier of fact concludes Martyn did not instruct the class as to the shot
sequence, the court should analyze the case under the doctrine of implied assumption of
risk which is subsumed under Ohio's comparative negligence scheme. See R.C. 2315.33.
{¶ 46} Based on the foregoing, appellants' first assignment of error is sustained. The
trial court's award of summary judgment is reversed, and the case is remanded for
proceedings consistent with this decision. Our ruling on the first assignment of error
renders the second and third assignments of error, regarding Martyn's and Graham's
recklessness, moot. See Thomas v. Strba, 9th Dist. No. 12CA0080-M, 2013-Ohio-3869,
¶ 19; App.R. 12(A)(1)(c).
No. 17AP-39 13
{¶ 47} Appellants' fourth assignment of error asserts the trial court erred in finding
GPD and Graham were immune from liability. In moving for summary judgment, GPD
argued that it was not an entity or political subdivision capable of being sued. Graham
argued that he was immune from appellants' negligence claims pursuant to R.C.
2744.03(A)(6).
{¶ 48} As relevant herein, R.C. 2744.03(A)(6) provides a political subdivision
employee with immunity unless one of the following apply: (a) the employees acts or
omissions were manifestly outside the scope of the employee's employment or official
responsibilities, or (b) the employee's acts or omissions were with malicious purpose, in
bad faith, or in a wanton or reckless manner. R.C. 2744.03(A)(6)(a) and (b). In their motion
for summary judgment, GPD and Graham asserted that the only "relevant exception to
immunity in the case at bar, [was] whether Graham's acts or omissions were done in a
wanton or reckless manner," which they argued were not. (Appellees' Mot. for Summ. Jgmt.
at 10.) GPD and Graham noted that Peterson had alleged in his complaint that Graham was
acting within the scope of his employment at the time of Peterson's injury, but GPD and
Graham did not further discuss the issue. (See Appellees' Mot. for Summ. Jgmt. at 12.) GPD
and Graham never addressed the fact that Graham was on vacation during the August 2008
seminar in their motion for summary judgment.
{¶ 49} In appellants' memorandum contra GPD and Graham's motion for summary
judgment, appellants argued GPD was capable of being sued, and that the R.C.
2744.03(A)(6)(a) exception to immunity applied as Graham was on vacation during the
August 2008 seminar. Appellants noted that Graham's deposition testimony demonstrated
he "took vacation time from the GPD in order to attend this training," and argued that "[b]y
being on vacation, Graham [could not] be said to be acting within his employment or official
responsibilities." (Appellants' Memo Contra to GPD and Graham's Mot. for Summ. Jgmt.
at 18.) Indeed, Graham testified he used his "own personal vacation" time to attend the
seminar, as his "patrol lieutenant said that [he] wasn't authorized to take - - to be paid on
duty for it." (Graham Depo. at 41.) Appellants noted that GPD and Graham's motion for
summary judgment did "not provide any analysis under [R.C. 2744.03] subsection (a) for
this Court's consideration, and relie[d] solely on Plaintiffs' Complaint." (Appellants' Memo
Contra to GPD and Graham's Mot. for Summ. Jgmt. at 19.) Appellants pointed out that
No. 17AP-39 14
Graham's deposition had not yet taken place at the time they drafted their complaint, and
that it was "Graham's own deposition testimony that ha[d] placed him outside the scope of
his employment." (Appellants' Memo Contra to GPD and Graham's Mot. for Summ. Jgmt.
at 19.)
{¶ 50} In granting GPD and Graham's motion for summary judgment, the trial court
stated that "[e]ven if suit was brought against the proper governmental entity, for all of the
reasons set forth in the Gahanna Defendants' Motion, the Court agrees that Defendant
[Graham] is entitled to immunity and there is no vicarious liability." (Decision at 8.) Thus,
the court concluded that Graham was entitled to immunity based solely on the arguments
set forth in GPD and Graham's motion for summary judgment.
{¶ 51} "It is well-established that questions not considered by a trial court will not
be ruled upon by [the appellate] court." Ochsmann v. Great Am. Ins. Co., 10th Dist. No.
02AP-1265, 2003-Ohio-4679, ¶ 21, citing Mills-Jennings, Inc. v. Dept. of Liquor Control,
70 Ohio St.2d 95, 99 (1982) (refusing to consider on appeal issues raised in the party's
motion for summary judgment which the trial court had not addressed). "While it is true
that an appellate court reviews a trial court's summary judgment decision de novo, [an
appellate court must] not consider issues raised in summary judgment proceedings that the
trial court failed to rule on." Tree of Life Church, FWC v. Agnew, 7th Dist. No. 12 BE 42,
2014-Ohio-878, ¶ 27, citing Conny Farms, Ltd. v. Ball Resources, Inc., 7th Dist. No. 09 CO
36, 2011-Ohio-5472, ¶ 15. See Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360 (1992)
(holding that "even though" an appellate court reviewing an award of summary judgment
"must conduct its own examination of the record," if the "trial court does not consider all
the evidence before it, an appellate court does not sit as a reviewing court, but, in effect,
becomes a trial court," and accordingly the failure of the "trial court to thoroughly examine
all appropriate materials filed by the parties before ruling on a motion for summary
judgment * * * constitutes reversible error"); Yoskey v. Eric Petroleum Corp., 7th Dist. No.
13 CO 42, 2014-Ohio-3790, ¶ 40, citing Murphy at 360 (noting that "de novo review still
entails a review of what the trial court decided") (Emphasis sic.); State ex rel. Deem v.
Village of Pomeroy, 4th Dist. No. 17CA3, 2018-Ohio-1120, ¶ 42 (holding that, as the trial
court never addressed the defendants' summary judgment argument that Spaun was
No. 17AP-39 15
entitled to "immunity under R.C. 2744.03(A)(6)," the appellate court "decline[d] to do so
for the first time on appeal").
{¶ 52} In granting GPD and Graham's motion for summary judgment, the trial court
never ruled on GPD's argument that it was not capable of being sued. Although the court
stated that Graham was entitled to immunity for the reasons contained in GPD and
Graham's motion for summary judgment, that motion never addressed the fact Graham
was on vacation while attending the seminar. In their memorandum contra, appellants
presented the court with Graham's deposition testimony demonstrating he was on vacation
during the training. Yet, the trial court did not review or consider this evidence before
granting GPD and Graham's motion. Accordingly, as the trial court failed to rule on these
issues, they are not properly before us at this time.
{¶ 53} Having sustained appellants' first assignment of error, rendering appellants'
second and third assignments of error moot, and having declined to address appellants'
fourth assignment of error, we reverse the judgment of the Franklin County Court of
Common Pleas, and remand the case to that court for further proceedings consistent with
law and this decision.
Judgment reversed and cause remanded.
KLATT, J., concurs.
SADLER, J., dissents.
SADLER, J., dissenting.
{¶ 54} Because I believe explosive breaching training is an inherently dangerous
activity and would not focus on the actions of the defendant in determining this issue, I
disagree with the majority opinion that the first assignment of error should be sustained.
As a result, I respectfully dissent.
{¶ 55} As provided in the majority opinion, under the doctrine of primary
assumption of risk, a plaintiff who voluntarily engages in an activity assumes the inherent
risks of that activity and cannot recover for injuries sustained in the activity unless the
defendant acted recklessly or intentionally in causing the injuries. Ochall v. McNamer,
10th Dist. No. 15AP-772, 2016-Ohio-8493; Morgan v. Ohio Conference of the United
Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 13.
No. 17AP-39 16
{¶ 56} Under the first assignment error, the majority opinion focuses on the actions
of a defendant (Martyn's alleged failure to instruct the class on the shot sequence) to
conclude that the defendant elevated the risk beyond the inherent risks of explosive
breaching training. As a result, the majority opinion holds that the trial court erred in
granting summary judgment on the basis of determining explosive breaching training is an
inherently dangerous activity. In other words, the majority opinion uses the defendant's
actions to define the risks inherent in the activity.
{¶ 57} In my view, in determining whether explosive breaching training is an
inherently dangerous activity, the activity itself is the focus, reserving the defendant's
actions as a next-step issue of whether the defendant was reckless. See, e.g., Ochall at ¶ 44-
47, 52, 62, 79, 105, fn. 2 (finding that "in analyzing the risks inherent to [the activity], we
must focus exclusively on the activity * * *, and not on the actions or omissions of the
defendants in this case" and that the actions of the defendant—whether they "enhanced"
the risk—"would be appropriately addressed when considering whether the exception of
recklessness or willfull or wanton conduct applies to application of primary assumption of
the risk"); Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-
5541, ¶ 10 ("The defendant's conduct is relevant only if it rises to reckless or intentional
conduct."); Morgan v. Kent State Univ., 10th Dist. No. 15AP-685, 2016-Ohio-3303, ¶ 21-
23 (declining to address, in its determination of whether primary assumption of risk
applied to a karate class, the plaintiff-appellant's contentions regarding the karate
instructor's actions and instead finding this argument to be essentially "a claim that the
instructor was reckless" that had not been pled); Morgan, 2012-Ohio-453, ¶ 16-26 (finding,
in its determination of whether primary assumption of risk applied to night-hiking,
appellant's argument that risks which led to the injury could have been eliminated if the
hike leader had chosen a different trail "is essentially a claim that [hike leader's] conduct
was reckless," which had not been pled); Crace v. Kent State Univ., 185 Ohio App.3d 534,
2009-Ohio-6898 (10th Dist.) (determining that trial court did not err in applying the
primary assumption of risk defense to an injury plaintiff incurred while practicing a
cheerleading stunt and then analyzing, as a separate consideration, whether the
cheerleading instructor acted recklessly or intentionally to nonetheless permit recovery).
No. 17AP-39 17
{¶ 58} When focused on the activity itself rather than the conduct of the defendant,
common sense directs explosive breaching training is an inherently dangerous activity. See
Foggin at ¶ 9 (inherent risks "associated with the activity are those that are foreseeable and
customary risks of the activity"); Collova v. Matousek, 85 Ohio App.3d 440, 447 (8th
Dist.1993) (citing Taylor v. Cincinnati, 143 Ohio St. 426 (1944), for the proposition that in
an absolute nuisance case, "handling of explosives; the explosion of an unguarded,
unexploded bomb in a public park and several instances of blasting operations" are
inherently dangerous). I would find the danger of an injury due to an errant explosion
during field training as occurred in this case to be the foreseeable and "customary" risk of
explosive breaching training. Foggin at ¶ 9. While this risk may be reduced through
procedures and precautions, I do not believe the risks of explosive breaching training could
ever be "completely eliminated." Crace at ¶ 42.
{¶ 59} Therefore, I would find that explosive breaching training is a type of
inherently dangerous activity that is subject to the doctrine of primary assumption of risk.
As a result, I would overrule appellants' first assignment of error and proceed to the
remaining assignments of error to consider whether summary judgment is appropriate on
the issue of allegedly reckless conduct by Martyn and/or Graham, which would negate the
primary assumption of risk doctrine, and any resulting consequence on the fourth
assignment of error.1 Ochall at ¶ 34. Because the majority opinion does otherwise, I
respectfully dissent.
__________________
1 I note that if the third assignment of error addressing Graham's alleged reckless conduct is overruled, I
believe the fourth assignment of error would be rendered moot by application of the primary assumption
of risk doctrine.