Estate of Sample v. Xenos Christian Fellowship, Inc. , 2021 Ohio 3898 ( 2021 )

[Cite as Estate of Sample v. Xenos Christian Fellowship, Inc., 2021-Ohio-3898.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The Estate of Kwesi Sample, through its :
Administrator Lawrence Cornish,
:
Plaintiff-Appellant, No. 20AP-563
: (C.P.C. No. 16CV-6763)
v.
: (REGULAR CALENDAR)
Xenos Christian Fellowship, Inc.,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on November 2, 2021
On brief: Cooper & Elliott, LLC, and Adam P. Richards, for
appellant. Argued: Adam P. Richards.
On brief: Crabbe, Brown & James, LLP, and John C. Albert,
for appellee. Argued: John C. Albert.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, Lawrence Cornish, Administrator for the Estate of Kwesi
Sample ("the Estate"), appeals from a judgment of the Franklin County Court of Common
Pleas granting summary judgment in favor of defendant-appellee, Xenos Christian
Fellowship, Inc. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On May 14, 2013, Sample tragically drowned while swimming across an
ocean inlet from North Carolina's Holden Beach to Sheep Island. Sample had traveled to
Holden Beach with other college-aged congregants of Xenos, a non-traditional, non-
denominational church based in Columbus. Xenos consists of approximately 200 home
No. 20AP-563 2
churches, and Sample joined a home church led in part by Joshua LeVan. On the day of
the drowning, LeVan and others decided to go geocaching, which is an outdoor recreational
activity involving the search for a hidden object, or cache, using provided global positioning
system coordinates and clues. The group's hunt for a particular cache required them to
traverse the ocean inlet to Sheep Island. Sample indicated that he could swim and joined
the group in the activity. As they swam across the ocean inlet, Sample began to struggle
and went underwater. The others were unable to save him.
{¶ 3} In July 2016, the Estate filed a wrongful death and survivorship action
against Xenos asserting claims for negligence and negligent supervision and/or training.
In March 2017, the trial court ruled that it would apply North Carolina, not Ohio, law to the
Estate's tort claims. The next month, Xenos moved for summary judgment on all claims,
arguing in part that it owed no duty of care to Sample as to the dangers associated with
open water swimming because those dangers were open and obvious as a matter of law.
The trial court granted Xenos' summary judgment motion, and the Estate appealed.
{¶ 4} In December 2019, this court affirmed in part and reversed in part. Estate of
Sample v. Xenos Christian Fellowship, Inc., 10th Dist. No. 18AP-804, 2019-Ohio-5439(Sample I). As to the Estate's negligence claim, this court affirmed the trial court's granting
of summary judgment, holding that Sample's contributory negligence barred that claim
under North Carolina law. Id. at ¶ 57-60. As to the Estate's claim for negligent supervision
and/or training, this court held the trial court erred in granting summary judgment in
Xenos' favor because Xenos did not meet its burden to identify the basis on which it sought
summary judgment on that claim. Id. at ¶ 61. Accordingly, the matter was remanded for
further proceedings. Id. at ¶ 62.
{¶ 5} On remand, Xenos moved for summary judgment on the Estate's negligent
supervision and/or training claim. Citing the undisputed facts as previously outlined in
Sample I, and this court's finding that the ocean inlet was an open and obvious danger,
Xenos generally argued the Estate's claim for negligent supervision and/or training failed
as a matter of law because there was no duty. In November 2020, the trial court granted
Xenos' summary judgment motion. Insofar as the Estate alleged negligent supervision, the
trial court applied North Carolina law and found the Estate could not establish all elements
of that claim because there was no duty of Xenos group leaders, such as LeVan, to warn or
No. 20AP-563 3
accurately inform Sample of the dangers of swimming in open waters. And insofar as the
Estate alleged negligent training, the trial court applied Ohio law and similarly found that
this claim failed as a matter of law because Xenos did not owe Sample a duty to protect him
from LeVan or the inherent dangers of swimming in open waters.
{¶ 6} The Estate timely appeals.
II. Assignment of Error
{¶ 7} The Estate assigns the following error for our review:
The trial court erred when it granted defendant-appellee's
("Xenos") motion for summary judgment on plaintiff-
appellant's (the "Estate") negligent training claim.
III. Discussion
{¶ 8} The Estate's sole assignment of error contends the trial court erred in
granting Xenos' motion for summary judgment on its negligent training claim.1 This
assignment of error lacks merit.
{¶ 9} An appellate court reviews summary judgment under a de novo standard.
Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio
Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is appropriate
only when the moving party demonstrates (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 summary judgment is made, that party being entitled to have the evidence
most strongly construed in its favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997).
{¶ 10} Pursuant to Civ.R. 56(C), 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 demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). However, the moving party cannot discharge its initial burden under this rule
with a conclusory assertion that the nonmoving party has no evidence to prove its case; the
moving party must specifically point to evidence of the type listed in Civ.R. 56(C)
1In this appeal, the Estate does not challenge the trial court's disposition of its negligent supervision claim
under North Carolina law.
No. 20AP-563 4
affirmatively demonstrating that the nonmoving party has no evidence to support the
nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the
moving party discharges its initial burden, summary judgment is appropriate if the
nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with
specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430;
Civ.R. 56(E).
{¶ 11} To establish negligent training under Ohio law, the plaintiff must prove
(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the
employer's actual or constructive knowledge of such incompetence; (4) the employee's act
causing the plaintiff's injuries; and (5) the employer's negligence in training the employee
as the proximate cause of the plaintiff's injuries. Ford v. Brooks, 10th Dist. No. 11AP-664,
2012-Ohio-943, ¶ 22. "These elements correspond with the basic elements of negligence—
duty, breach, proximate cause, and damages." Ball v. Stark, 10th Dist. No. 11AP-177, 2013-
Ohio-106, ¶ 76. Here, the trial court determined the Estate's negligent training claim fails
as a matter of law because there was no duty to protect Sample from the inherent dangers
of open water swimming. We agree.
{¶ 12} Before we analyze the primary issue in this appeal, however, we address
whether the trial court granted summary judgment on a basis that Xenos properly raised
and supported with facts established in the record. The Estate argues the trial court
improperly granted summary judgment because Xenos did not raise the issue that formed
the basis of the trial court's decision, and because Xenos simply relied on this court's prior
decision in Sample I applying North Carolina law. According to the Estate, the trial court
improperly awarded summary judgment in favor of Xenos on the negligent training claim
based on its finding that there was no duty under Ohio law, even though Xenos' duty
argument was premised on this court's prior decision applying North Carolina law. We are
not persuaded. In moving for summary judgment on the Estate's negligent training claim,
Xenos argued that claim failed as a matter of law because no duty existed under Ohio law
in view of the previously determined undisputed facts. Thus, the trial court awarded
summary judgment on a basis that Xenos raised and supported with facts established in
the record.
No. 20AP-563 5
{¶ 13} As to the merits of the Estate's negligent training claim, we agree with the
trial court's determination that Xenos owed no duty to Sample to protect him from the
hazards of open water swimming through its training of Xenos group leaders. The existence
of a legal duty may be established by common law, legislative enactment, or the particular
circumstances of a case. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-
Ohio-4210, ¶ 23. Whether a duty exists is a question of law for a court to determine.
Mussivand v. David, 45 Ohio St.3d 314, 318 (1989). "There is no formula for ascertaining
whether a duty exists. Duty * * * is the court's expression of the sum total of those
considerations of policy which lead the law to say that the particular plaintiff is entitled to
protection." (Internal quotations and citations omitted.) Wallace at ¶ 24. Ultimately, the
existence of a duty depends on the foreseeability of the injury to the plaintiff. Jeffers v.
Olexo, 43 Ohio St.3d 140, 142 (1989). "The test for foreseeability is whether a reasonably
prudent person would have anticipated that an injury was likely to result from the
performance or nonperformance of an act." Menifee v. Ohio Welding Prods., Inc., 15 Ohio
St.3d 75, 77 (1984).
{¶ 14} In the context of a negligent training claim, a duty arises if (1) an employment
relationship exists between the defendant and the third person who injured the plaintiff,
and (2) the injury to the plaintiff was foreseeable given the employee's incompetence and
the employer's knowledge of that incompetence. Ball at ¶ 76. Thus, liability for negligent
training "only arises if the employer knew or should have known of the employee's
incompetence and the particular incompetence manifested by the employee would cause a
reasonably prudent person to anticipate the employee's misconduct." Id.{¶ 15} The Estate contends that evidence in the record demonstrated that Sample
died because LeVan, Sample's Xenos group leader, failed to provide accurate information
to Sample regarding the swim across the ocean inlet to the geocache location. The Estate
further contends that even though Xenos should have expected its groups to engage in a
recreational activity like geocaching during the Holden Beach trip based on prior
geocaching activity of Xenos groups, it did not train its leaders on planning this type of
activity. The Estate reasons that in the absence of this training, Xenos had constructive
knowledge that the leaders were incompetent on that subject, and it was therefore
foreseeable that injury would occur. We are unconvinced.
No. 20AP-563 6
{¶ 16} Even assuming that an employment relationship existed between Xenos and
LeVan, and that LeVan demonstrated incompetence concerning geocaching activity
planning during the Holden Beach trip, the Estate has cited no evidence in the record
reasonably indicating that Xenos should have known about any such incompetence. First,
the Estate's reasoning assumes specialized training is necessary to establish competence in
planning a group recreational activity like geocaching, which involves searching for a
hidden container using GPS coordinates and clues. In our view, however, evidence of
Xenos not training its leaders in planning group recreational activities like geocaching does
not reasonably establish its constructive knowledge of a group leader's incompetence in
planning such an activity, including gathering and providing pertinent information to the
group. Second, even though Xenos leaders, including LeVan, previously took groups
geocaching, the Estate cites no evidence that any of the group leaders had demonstrated
any incompetence as to that recreational activity prior to the Holden Beach trip. Thus,
based on the evidence submitted, Xenos had no actual or constructive knowledge that
Sample's leader, LeVan, lacked the requisite ability to plan group recreational activities like
geocaching. Consequently, Xenos owed no duty to Sample to protect him from the hazards
of open water swimming through its training of Xenos group leaders.
{¶ 17} Because the trial court did not err in granting Xenos' summary judgment
motion, we overrule the Estate's sole assignment of error.
IV. Disposition
{¶ 18} Having overruled the Estate's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and JAMISON, JJ., concur.