Brown v. Harris , 2017 Ohio 2607 ( 2017 )

[Cite as Brown v. Harris, 2017-Ohio-2607.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
JAILYNN BROWN, et al. :
:
Plaintiff-Appellant : Appellate Case No. 27069
:
v. : Trial Court Case No. 2014-CV-5144
:
ANDRE T. HARRIS, SR., et al. : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 28th day of April, 2017.
...........
NATHAN J. STUCKEY, Atty. Reg. No. 0086789, 735 North Limestone Street, Springfield,
Ohio 45503
Attorney for Plaintiff-Appellant
ALAN TRENZ, Atty. Reg. No. 0013521, 10403 Harrison Avenue, Suite 400, Harrison,
Ohio 45030
Attorney for Defendant-Appellee
.............
WELBAUM, J.
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{¶ 1} Plaintiff-appellant, Jailynn Brown, appeals from a judgment of the
Montgomery County Court of Common Pleas, which granted summary judgment in favor
of defendants-appellees, Raven Evans-Harris and Charlotte Harris, in a personal injury
action that arose from Jailynn falling and tearing her ACL during a cheerleading practice
at the Harris residence. For the reasons outlined below, the judgment of the trial court
will be affirmed.
I. Events Leading Up to Jailynn’s Injury
{¶ 2} In the spring or summer of 2012, Jailynn, a high school sophomore, learned
from a friend that Raven, a former high school and college cheerleader, was helping a
group of high-school-aged girls form a cheerleading squad with the assistance of another
former cheerleader, Kendra Fritz. Jailynn had some experience cheerleading and was
interested in joining the squad. As a result, Jailynn and some other interested girls met
Raven and Kendra at a local church where they received information about the squad.
{¶ 3} Jailynn claimed that she tried out, made the squad, and attended practices
approximately every other day thereafter. It is undisputed that Raven and Kendra
volunteered their time, as Jailynn paid no fee nor signed any waiver to participate.
Although there is a dispute as to whether an official team was formed during Jailynn’s
participation, the parties agree that the squad was eventually organized into a more
official team called the “All City Airmen,” also known as the “ACA,” which Raven and
Kendra managed and coached.
{¶ 4} The squad practiced at various locations in Dayton, including local parks and
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the residence of Raven’s mother and stepfather, Charlotte and Dr. Andre T. Harris, Sr.1
When practices were held at the Harris residence, the team would occasionally take part
in conditioning and fitness training with Charlotte, who coaches basketball and is known
in the community as “Coach Char.” Charlotte is not a cheerleading coach and only
attended practices when they were at her house. Jailynn admitted that “Coach Char” did
not provide instruction during practice.
{¶ 5} There is no dispute that Raven and Kendra instructed the team on various
cheerleading skills, which included “stunting.” Stunting involves lifting moves where a
small group of girls called “bases,” mount and lift up another girl, the “flyer,” by her feet.
The bases then cradle and catch the flyer as she comes down from the lift. The majority
of the girls on the team, including Jailynn, were new to stunting. The team initially
practiced stunts called the “half” and “full.” Jailynn, who acted as a flyer, claimed that
prior to September 10, 2012, she had successfully performed the half and full many times
during practice.
{¶ 6} On September 10, 2012, practice was held at the Harris residence. Jailynn
claims that this was the first practice that Raven taught a new stunt called the “lib” or
“liberty.” Unlike a half and full, during a liberty, the flyer is supposed to go up on one foot
as she is lifted by the bases. According to Jailynn, Raven showed the bases where their
hands were supposed to go and also showed the flyers what to do when they were lifted
in the air.
{¶ 7} Following Raven’s instructions, Jailynn attempted the liberty in the grassy
front yard of the Harris residence, which Jailynn claims was uneven and sloped. There
1 At all relevant times, Raven did not live with her mother and Dr. Harris.
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is no dispute that no mats were used during the practice. Jailynn claims that her first
attempt at the liberty was unsuccessful, but that the bases cradled her to the ground
safely. After the first failed attempt, Jailynn claimed that Raven told her group to “get it
together” and then went to help another group that was attempting the stunt.
{¶ 8} Jailynn claims her group waited until Raven returned to try the stunt again.
During Jailynn’s second attempt, the bases did not catch her and she fell to the ground
on her left side with all her weight on her left leg. When Jailynn tried to get up from the
fall she immediately felt pain in her leg and started crying. Jailynn later went to the
hospital and was diagnosed with a torn ACL, which required surgery.
{¶ 9} Jailynn claimed that there were four girls spotting her when she attempted
the liberty. Similarly, Raven claimed there were three people underneath Jailynn, and
possibly a back spotter, although Raven was uncertain whether a back spotter was in
place. While Jailynn claimed that Raven was present when she performed the liberty,
Raven claimed that she turned her attention away to answer a question when Jailynn fell.
Charlotte was not in the front yard when the incident happened and Kendra was not at
practice. While Dr. Harris had no affiliation with the team, he came outside to assist
Jailynn after she fell.
II. Course of Proceedings
{¶ 10} Jailynn and her mother, Marketa Watkins, filed a personal injury action that
alleged claims of negligence and loss of consortium against Raven, Charlotte, and Dr.
Harris for the injury Jailynn sustained at the Harris residence. After written discovery and
depositions, Jailynn and Marketa were permitted to amend their complaint so as to
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conform to the evidence and raise additional claims of reckless and/or intentional conduct.
{¶ 11} Following additional discovery, the Harrises filed a motion for summary
judgment alleging that Jailynn and Marketa could not recover for Jailynn’s injuries
because Jailynn assumed the inherent risks associated with cheerleading. Jailynn and
Marketa then filed a response asserting that summary judgment is not appropriate
because a question of fact remains as to whether the Harrises’ conduct was reckless and
caused Jailynn’s injury. In reply, the Harrises argued that Dr. Harris did not owe any duty
to Jailynn, Charlotte did not breach any duty owed to Jailynn, and that Raven’s conduct
toward Jailynn was not in reckless disregard of her safety.
{¶ 12} In support of their positions on summary judgment, each party attached an
expert affidavit to their motion giving an opinion as to whether Raven and Charlotte’s
conduct at the cheerleading practice was reckless. In reaching their opinions, both
experts reviewed the deposition testimony of Jailynn, Raven, Charlotte, and Marketa.2
{¶ 13} Jailynn’s expert, Dr. Marc Rabinoff, is a Professor Emeritus in the Human
Performance and Sport Department at the Metropolitan State University of Denver, who
has over 45 years of experience educating, training, and coaching cheerleaders,
gymnasts, and other coaches. In his affidavit, Rabinoff cited portions of the American
Association of Cheerleading Coaches and Administrators Cheerleading Safety Manual
and the USA Gymnastics Safety Manual. Based on these resources, Rabinoff opined
that Raven and Charlotte “consciously subjected the members of the team, including
Jailynn Brown, to a substantial and unjustifiable risk of harm,” and thus, “acted recklessly.”
Specifically, Rabinoff claimed that Raven failed to implement proper instruction or training
2 The transcript of Marketa’s deposition was not filed with the trial court or this court.
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required for safe stunting because Raven failed to: (1) directly supervise the liberty stunt
at issue; (2) ensure there were mats or alternative safety measures in place; (3) properly
instruct on stunting and spotting techniques; and (4) provide an appropriate training
environment, as he opined that the uneven front-yard area was an inappropriate training
surface for stunting.
{¶ 14} The Harrises’ expert, Lenee M. Buchman, has an extensive background in
coaching cheerleading at the college level and is currently the cheerleading coordinator
for the State of Ohio with the Ohio Association of Secondary School Administrators. In
her affidavit, Buchman opined that the circumstances surrounding Jailynn’s injury are
common in Ohio, and that “cheerleading groups and those who wish to be involved in
cheerleading many times organize without a formal structure[.]” Buchman opined that
while the practices held by these informal groups may not comply with all of the
recommended procedures recognized by the American Association of Cheerleading
Coaches and Administrators and the National Association of State High School
Associations, such practices do not amount to reckless conduct by the persons
supervising or conducting the practices. In Buchman’s opinion, Jailynn was properly
surrounded by girls who were there to assist and protect her during the liberty stunt, which
Buchman characterized as a “fairly basic” stunt. She further noted that Raven was
present at the time of the stunt despite the fact that she may not have been watching the
stunt when the injury occurred.
{¶ 15} After reviewing the motions and evidence, the trial court granted summary
judgment in favor of Raven, Charlotte, and Dr. Harris. The trial court found that because
Dr. Harris had no involvement in the cheerleading group, any liability on his part must
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arise from premises liability, and that there was no evidence that he breached his duty to
keep his property in a reasonably safe condition. The trial court also found that neither
party disputed that cheerleading was a recreational activity, and that in order for Jailynn
to recover against Raven and Charlotte, their conduct toward Jailynn had to be reckless
or intentional.
{¶ 16} The trial court found that Jailynn “practiced various stunts during multiple
practices, and was getting more and more comfortable with them, prior to sustaining her
injury.” Decision, Order, and Entry Sustaining Defendants’ Motion for Summary
Judgment (Mar. 3, 2016), Montgomery County Court of Common Pleas Case No. 2014-
CV-05144, Docket No. 65, p. 6. In addition, the court noted that Jailynn and her
teammates were not injured when performing the stunts during prior practices. The court
also found that stunts are a common component of cheerleading and that a risk of falling
is inherent in performing stunts that involve lifting participants in the air. The court held
that the record indicated that Jailynn understood the risks associated with cheerleading
and that Raven and Charlotte’s failure to provide safety mats and allowing the participants
to practice on the grass did not rise to the level of recklessness.
{¶ 17} Jailynn and Marketa (hereafter “Appellants”) now appeal from the trial
court’s decision granting summary judgment in favor of Raven and Charlotte, raising a
single assignment of error for review. Under their sole assignment of error, Appellants
claim that summary judgment was improper because a genuine issue of material fact
exists as to whether Raven and Charlotte’s conduct was reckless. Specifically,
Appellants argue that the trial court erred in only addressing Raven and Charlotte’s failure
to provide safety mats on the grass and by failing to consider the opinion of their expert,
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Dr. Rabinoff, which they claim created a genuine issue of material fact.
III. Standard of Review
{¶ 18} Civ. R. 56 defines the standard to be applied by the trial court when
determining whether a motion for summary judgment should be granted. Todd Dev. Co.,
Inc. v. Morgan, 116 Ohio St. 3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 11. Summary
judgment is proper when: “(1) there is no genuine issue of material fact; (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 when viewing evidence in favor of the
nonmoving party, and that conclusion is adverse to the nonmoving party.” (Citation
omitted.) Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241 (1996).
{¶ 19} “To prevail on its motion for summary judgment seeking to dismiss a claim,
the movant must demonstrate the absence of a genuine issue of material fact on the
essential elements of the non-moving party’s claims.” Omega Riggers & Erectors, Inc.
v. Koverman, 2016-Ohio-2961, 65 N.E.3d 210, ¶ 29 (2d Dist.). It is well established that:
The moving party cannot discharge its initial burden under Civ.R. 56 simply
by making a conclusory assertion that the nonmoving party has no evidence
to prove its case. Rather, the moving party must be able to specifically
point to some evidence of the type listed in Civ.R. 56(C) which affirmatively
demonstrates that the nonmoving party has no evidence to support the
nonmoving party’s claims. If the moving party fails to satisfy its initial
burden, the motion for summary judgment must be denied. However, if the
moving party has satisfied its initial burden, the nonmoving party then has
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a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts
showing that there is a genuine issue for trial and, if the nonmovant does
not so respond, summary judgment, if appropriate, shall be entered against
the nonmoving party.
(Emphasis sic.) Dresher v. Burt, 75 Ohio St. 3d 280, 293, 662 N.E.2d 264 (1996).
{¶ 20} Appellate courts review summary judgment decisions de novo. Grafton at
105. “ ‘De Novo review means that this court uses the same standard that the trial court
should have used, and we examine the evidence to determine whether as a matter of law
no genuine issues exist for trial.’ ” Harris v. Dayton Power & Light Co., 2d Dist.
Montgomery No. 25636, 2013-Ohio-5234, ¶ 11, quoting Brewer v. Cleveland City Schools
Bd. of Edn., 122 Ohio App. 3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997). It requires an
“ ‘independent review of the trial court’s decision without any deference to the trial court’s
determination.’ ” Jackson v. Internatl. Fiber, 169 Ohio App. 3d 395, 2006-Ohio-5799, 863
N.E.2d 189, ¶ 17 (2d Dist.), quoting State ex rel. AFSCME v. Taft, 156 Ohio App. 3d 37,
2004-Ohio-493, 804 N.E.2d 88, ¶ 27 (3d Dist.). In other words, “ ‘[w]e stand in the shoes
of the trial court and conduct an independent review of the record.’ ” Auer v. Paliath, 2d
Dist. Montgomery No. 27004, 2016-Ohio-5353, ¶ 15, quoting Deutsche Bank Nat. Trust
Co. v. Doucet, 10th Dist. Franklin No. 07AP-453, 2008-Ohio-589, ¶ 8.
IV. Recklessness
{¶ 21} Appellants do not dispute that cheerleading is a recreational activity and
that “[u]nder the doctrine of primary assumption of the risk, a plaintiff voluntarily engaged
in a recreational activity assumes the inherent risks of that activity and cannot recover for
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injuries sustained while engaging in that activity unless the defendant acted recklessly or
intentionally in causing the injuries.” (Emphasis added.) Wolfe v. AmeriCheer, Inc.,
10th Dist. Franklin No. 11AP-550, 2012-Ohio-941, ¶ 14, citing Marchetti v. Kalish, 53 Ohio
St.3d 95, 100, 559 N.E.2d 699 (1990), syllabus. (Other citation omitted.) Appellants
also do not dispute that falling and injury are inherent risks of cheerleading. Further,
Appellants agree that in order to recover for Jailynn’s injuries, they must establish that
Raven and Charlotte acted recklessly or intentionally. Appellants have also clarified that
they are not claiming Raven and Charlotte acted intentionally, but only claim that their
conduct was reckless.
{¶ 22} Ordinarily the question of whether conduct was reckless is properly left for
a jury. Id. at ¶ 17, citing Matkovitch v. Penn Cent. Transp. Co., 69 Ohio St. 2d 210, 214,
431 N.E.2d 652 (1982); O’Toole v. Denihan, 118 Ohio St. 3d 374, 2008-Ohio-2574, 889
N.E.2d 505, ¶ 75. “Nevertheless, the [Supreme Court of Ohio] has not hesitated to find
summary judgment appropriate where the facts, when construed in favor of the
nonmoving party, fail to rise to the level of reckless conduct.” Kurz v. Great Parks of
Hamilton Cty., 2016-Ohio-2909, 65 N.E.3d 96, ¶ 26 (1st Dist.), citing O’Toole at ¶ 92. In
Seege v. Smith, 2d Dist. Montgomery No. 26210, 2014-Ohio-5450, we also recognized
that the determination of recklessness is typically within the province of the jury, but that
summary judgment remains appropriate where a defendant’s conduct fails to
demonstrate a disposition to perversity. (Citations omitted.) Id. at ¶ 35.
{¶ 23} That said, “[r]ecklessness is a high standard.” Lovegrove v. Stapleton,
2015-Ohio-1669, 32 N.E.3d 1001, ¶ 34 (2d Dist.), citing Rankin v. Cuyahoga Cty. Dept.
of Children and Family Servs., 118 Ohio St. 3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶
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37. “ ‘While an act to be reckless must be intended by the actor, the actor does not
intend to cause the harm which results from it.’ ” Thompson v. McNeill, 53 Ohio St. 3d
102, 105, 559 N.E.2d 705 (1990), abrogated on other grounds, Anderson v. Massillon,
134 Ohio St. 3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 31, quoting 2 Restatement of
the Law 2d, Torts, Section 500 (1965). “Reckless conduct is characterized by the
conscious disregard of or indifference to a known or obvious risk of harm to another that
is unreasonable under the circumstances and is substantially greater than negligent
conduct.” Anderson at ¶ 34, citing Thompson at 104-105.
{¶ 24} “ ‘The difference between reckless misconduct and conduct involving only
such a quantum of risk as is necessary to make it negligent is a difference in the degree
of risk, but this difference of degree is so marked as to amount substantially to a difference
in kind.’ ” Taylor v. Mathys, 3d Dist. Union No. 14-04-32, 2005-Ohio-150, ¶ 15, quoting
2 Restatement of the Law 2d, Torts, Section 500. For an act to be reckless, “ ‘the risk
must itself be an unreasonable one under the circumstances.’ ” Thompson at 105,
quoting 2 Restatement of the Law 2d, Torts, Section 500. “ ‘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 participants’ ideas of foreseeable conduct in the course of a game.’ ” Wolfe, 10th
Dist. Franklin No. 11AP-550, 2012-Ohio-941 at ¶ 19, quoting Thompson at 105.
“Therefore, in order for a participant’s conduct to be reckless, it must be both outside the
rules of the activity and create an unreasonable risk of harm.” Taylor at ¶ 17.
{¶ 25} In Wolfe, a cheerleader filed a complaint against AmeriCheer Inc., a
corporation that sponsored cheerleading competitions, because the cheerleader was
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seriously injured during a cheerleading competition while she was acting as a base. Id.
at ¶ 1-3. The cheerleader alleged that AmeriCheer exercised reckless disregard for her
safety because two of the three spotters provided by AmeriCheer were not in the proper
positions at the time of her injury. Id. at ¶ 4, 20. The relevant issue was whether the
injured cheerleader set forth competent evidence establishing a genuine issue of material
fact on the issue of recklessness. Id. at ¶ 16.
{¶ 26} The Tenth Appellate District found that evidence regarding reckless
misconduct was lacking in Wolfe because there was unrefuted evidence that AmeriCheer
was under no duty to provide spotters at its competitions. Id. at ¶ 25. There was also
no evidence presented that AmeriCheer inadequately trained its spotters. Id. In
addition, the court found that there was no evidence that the spotters themselves
recognized any facts that would have led them to believe that their conduct could or did
create an unreasonable risk of harm to another. Id. at ¶ 26. Thus, the court found the
spotters’ actions were at best negligent and that there was no genuine issue of material
fact as to recklessness. Id.
V. Analysis
{¶ 27} In this case, we find that no genuine issue of material fact exists with respect
to recklessness as it relates to Charlotte. The record indicates that Charlotte was not a
cheerleading coach, but rather a basketball coach who trained many young athletes in
her community. While Charlotte would sometimes help the girls Raven was mentoring
with their fitness and conditioning when they had cheerleading practice at her residence,
Jailynn admitted that Charlotte never provided instruction or advice regarding
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cheerleading. In addition, Jailynn’s expert, Dr. Rabinoff, stated in his affidavit that
Charlotte “was responsible for the fitness and conditioning aspect of the team.”
Accordingly, there is no evidence in the record that Charlotte was ever responsible for
supervising or training the girls on any aspect of cheerleading, stunting, or spotting.
There is also no evidence that Charlotte had any input in when, where, or how the girls
practiced. As a result, we do not find that Charlotte had or breached any duty towards
Jailynn with respect to instructing and supervising stunting skills, as it is clear from the
record that Charlotte had a de minimus connection to the team and did not provide such
instruction.
{¶ 28} We also find that there is no genuine issue of material fact as to
recklessness with regards to Raven. As previously noted, “[r]eckless conduct is
characterized by the conscious disregard of or indifference to a known or obvious risk of
harm to another that is unreasonable under the circumstances and is substantially greater
than negligent conduct.” (Emphasis added.) Anderson, 134 Ohio St. 3d 380, 2012-
Ohio-5711, 983 N.E.2d 266 at ¶ 34, citing Thompson, 53 Ohio St. 3d at 104-105, 559
N.E.2d 705. The risk of harm itself must be unreasonable under the circumstances, and,
in the context of sports, what constitutes an unreasonable risk is delineated by references
to the customs that shape the participants’ ideas of foreseeable conduct in the course of
participating in the sport at issue. Thompson at 104-105. “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 and, thus, are not reckless. An example would be a football player who commits
a holding penalty.” Taylor, 3d Dist. Union No. 14-04-32, 2005-Ohio-150 at ¶ 17.
{¶ 29} Based on the facts of this case, even when they are viewed in a light most
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favorable to Jailynn, we cannot say that the risk of harm at issue here is an unreasonable
one that is substantially greater than the degree of risk associated with negligent conduct.
The risk of harm posed by Raven holding cheerleading practices at her parents’ house in
the manner that she did is that a squad member may fall or otherwise injure herself while
performing stunts on a grass surface. As noted by the trial court, falling is an inherent
risk of performing stunts where participants are lifted into the air.
{¶ 30} Jailynn was clearly aware of the risk of falling prior to her injury, as she had
previously attended multiple practices at the Harris residence and successfully performed
various stunts as a flyer. When Jailynn performed the liberty stunt that injured her, which
she agreed was a routine lift, she was practicing on the grass as usual and was
surrounded by three or four spotters. Raven was present when Jailynn performed the
stunt, although Raven was admittedly distracted and not watching the stunt when Jailynn
fell. Regardless of Raven’s distraction, her conduct of instructing and permitting the girls
to practice stunts on her parents’ grassy front yard with multiple spotters fails to
demonstrate a disposition to perversity.
{¶ 31} Under these circumstances, we do not find that the practice location, lack
of mats, and training techniques created an unreasonable risk of harm, as the fact
remains that the risk amounted to falling on grass, and falling is an inherent risk of the
activity. Moreover, the record establishes that it was customary for the rather informal
cheerleading squad to practice stunts on the grass with spotters, and that Jailynn and her
teammates had performed similar lifting stunts multiple times under the same conditions
without incident. Simply put, the risk of harm associated with the stunt at issue was not
unreasonable under the circumstances so as to rise to the standard of recklessness.
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Rather, we find the degree of risk is more akin to negligence.
{¶ 32} The fact that Jailynn submitted Dr. Rabinoff’s expert affidavit opining that
Raven’s conduct amounted to recklessness does not affect our decision. “ ‘[J]ust
because a plaintiff can find an expert to state in an affidavit that an act was reckless does
not mean that there is a genuine issue for trial.’ ” Seege, 2d Dist. Montgomery No.
26210, 2014-Ohio-5450 at ¶ 34-35, quoting Fediaczko v. Mahoning Cty. Children Servs.,
7th Dist. Mahoning No. 11 MA 186, 2012-Ohio-6090, ¶ 31.
{¶ 33} We recognize that Dr. Rabinoff’s affidavit is very thorough in that he
supports his recklessness opinion by discussing the specific ways in which Raven failed
to abide by certain standards in the American Association of Cheerleading Coaches and
Administrators Cheerleading Safety Manual and the USA Gymnastic Safety Manual.
However, regardless of these failures, the facts as they stand do not indicate that such
failures created an unreasonable risk of harm under the circumstances.
{¶ 34} That Dr. Rabinoff claims an unreasonable risk of harm existed here is akin
to alchemy, i.e., turning lead into gold, as he is attempting to turn facts that do not show
an unreasonable risk of harm into facts that do show an unreasonable risk of harm by
simply averring in his affidavit that Raven’s conduct created such harm. 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, ¶ 11, quoting Rice v. Johnson, 8th Dist.
Cuyahoga No. 63648, 1993 WL 328733, *4 (Aug. 26, 1993). “ ‘Affidavits which merely
set forth legal conclusions or opinions without stating supporting facts are insufficient to
meet the requirements of Civ.R. 56(E).’ ” Nu-Trend Homes, Inc. v. DeLibera, Lyons &
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Bibbo, 10th Dist. Franklin No. 01AP-1137, 2003-Ohio-1633, ¶ 59, quoting Stamper v.
Middletown Hosp. Assn., 65 Ohio App. 3d 65, 68-69, 582 N.E.2d 1040 (12th Dist.1989).
{¶ 35} Because the facts in the record do not demonstrate that Raven’s conduct
created an unreasonable risk of harm, we find that Raven’s conduct does not rise to the
high standard of recklessness, but rather, is more indicative of negligence, which is
insufficient to succeed on the personal injury claim herein.
{¶ 36} Appellant’s sole assignment of error is overruled.
VI. Conclusion
{¶ 37} Having overruled Jailynn Brown’s sole assignment of error, the trial court’s
decision granting summary judgment in favor of Charlotte Harris and Raven Evans-Harris
is affirmed.
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HALL, P.J., concurs.
DONOVAN, J., concurring in part and dissenting in part:
{¶ 38} I respectfully dissent only as to the majority’s determination regarding
Raven. Raven owed a duty to Jailynn not to increase the risk of harm beyond what is
inherent in the activity of stunting. There is evidence in the record that Raven did
increase the risk of harm and/or took the team beyond its level of expertise or capability.
Under the circumstances herein, and construing the evidence most strongly in favor of
Jailynn, in my view the question of whether Raven’s conduct was reckless, such that it
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fell totally outside of the range of ordinary activity involved in coaching stunting, cannot
be resolved on summary judgment. The affidavit of Dr. Rabinoff, which the trial court
disregarded without justification, creates a genuine issue of material fact for the jury to
decide as to whether Raven elevated the risk beyond what is inherent in stunting or
behaved recklessly. There is expert testimony that Raven’s acts and omissions fell
totally outside the range of ordinary activity.
{¶ 39} Dr. Rabinoff has 45 years of experience, and his affidavit does not merely
set forth a legal conclusion or opinion without supporting facts, as the majority suggests.
His affidavit is thorough and his opinions are supported by specific facts from the record.
Most significantly, Dr. Rabinoff opined that Raven failed to implement the proper
instruction and training required for safe stunting by means of established standards, and
that her failure created a substantial and unjustifiable risk of harm. This opinion directly
conflicts with that of the Harrises’ expert, who opined that the circumstances surrounding
Jailynn’s injury are common and do not demonstrate reckless conduct, thereby creating
a genuine issue of material fact.
{¶ 40} Dr. Rabinoff specifically cited standards from the USA Gymnastics Safety
Manual, which provides that “the cheering surface, location and weather conditions
should be taken into consideration before engagement activity. Basic mats and/or
landing mats and skill cushions should be used for tumbling, stunts and dismounts,
especially in the training environment.” Dr. Rabinoff opined that Raven disregarded
these safety precautions by teaching students stunts in a grassy front yard that was
uneven and sloped without safety mats or any other alternative safety measures. Raven
herself testified that mats would have been helpful in performing the stunts, but that she
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did not have any.
{¶ 41} In further support of his opinion, Dr. Rabinoff explained that according to the
American Association of Cheerleading Coaches and Administrators Cheerleading Safety
Manual, stunting techniques are supposed to be taught “using a well-planned, systematic
program that emphasizes the use of appropriate skills progressions that are scrupulously
monitored by the coach.” He claims the manual further provides that “these progressions
usually involve a series of ‘lead up’ skills that often require some form of spotting.” Even
absent application of these standards, a coach, even a volunteer one, owes a duty not to
increase the risk of harm beyond what is inherent in the learning process undertaken by
a student who is a minor.
{¶ 42} According to Dr. Rabinoff, “the girls were not instructed on, and did not
consistently and successfully perform, proper skills progressions before attempting the
‘liberty’ stunt[,]” which he described as “one of the most advanced and high risk type of
stunts.” We note that the Harrises’ expert, in contrast, described the stunt as “fairly
basic.” Dr. Rabinoff claimed “it would be merely impossible for girls of that age and
experience to perform all of the necessary skills progressions for the liberty in one day.”
While there is conflicting testimony as to whether Jailynn had practiced and performed
the liberty stunt previously, facts are to be considered in the light most favorable to the
Appellants, and Jailynn testified that Raven first taught the liberty during the practice at
which she was injured, and that she had never attempted the stunt before that day.
{¶ 43} Dr. Rabinoff also found fault with Raven’s technique of walking the girls
through the stunt and then having them simply perform the stunt until they were
comfortable with it. Dr. Rabinoff further took issue with the manner in which Raven
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assessed Jailynn’s skills that were necessary to complete the stunts, which Raven
claimed she did on a “trial and error” basis, i.e., “[b]y putting [Jailynn] up there and seeing
how she did.” Further, Dr. Rabinoff noted that Raven testified that she was unsure
whether any spotters were around Jailynn at the time of the stunt in question, and he
claimed that Raven did not appreciate the concept of spotting since she testified that
“there’s not a lot of technique involved in being a spotter.” Dr. Rabinoff also implied that
the lack of direct supervision at the time Jailynn performed the liberty stunt was
inappropriate, as Raven testified that her attention was turned away when Jailynn fell.
As a result of these failures, Dr. Rabinoff concluded that “all of the ‘standards of care’ for
the proper teaching/coaching of ‘gymnastics stunting’ cheerleading that [he applied] to
the facts of this case were violated,” and that Raven “consciously subjected the members
of the team, including Jailynn Brown, to a substantial and unjustifiable risk of harm.”
(Emphasis added).
{¶ 44} Because Dr. Rabinoff pointed to established standards and specific facts in
the record to support his opinion, an opinion that was directly contrary to that of the
Harrises’ expert, I find that the affidavit creates a genuine issue of material fact as to
whether Raven consciously disregarded a known or obvious risk of unreasonable harm
to Jailynn and the other participants that amounts to more than mere negligent conduct.
In other words, in my view, the question of whether Raven’s conduct was reckless should
be up to a jury to decide. I would reverse in part.
..........
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Copies mailed to:
Nathan J. Stuckey
Alan Trenz
Hon. Dennis J. Adkins