Whalen v. T.J. Automation, Inc.

[Cite as Whalen v. T.J. Automation, Inc., 2019-Ohio-1279.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
JILLIAN WHALEN ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 7-18-27
v.
T.J. AUTOMATION, INC. ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Henry County Common Pleas Court
Trial Court No. 17CV0100
Judgments Affirmed
Date of Decision: April 8, 2019
APPEARANCES:
Paul W. Flowers for Appellants
J. Alan Smith for Appellees, Tracy and Amy Hammersmith
Paul D. Eklund for Appellee, T.J. Automation, Inc.
Case No. 7-18-27
PRESTON, J.
{¶1} Plaintiffs-appellants, Jillian Whalen (“Whalen”), individually and in
her capacity as Administrator of the Estate of Jackson Spees (“Jackson”), appeal the
March 16 and August 2, 2018 judgments of the Henry County Court of Common
Pleas granting the motions for summary judgment of defendants-appellees, T.J.
Automation, Inc. (“T.J. Automation”) and Tracy and Amy Hammersmith (“Tracy”
and “Amy”) (collectively the “Hammersmiths”). For the reasons that follow, we
affirm.
{¶2} T.J. Automation manufactures machines that bend tubing for a variety
of mechanical and automotive products. (Doc. No. 70, Tracy’s May 15, 2018 Depo.
at 11). Tracy is the president of T.J. Automation. (Id. at 9). His wife, Amy, serves
as T.J. Automation’s Director of Human Resources and Finance. (Doc. No. 71,
Amy’s May 15, 2018 Depo. at 11).
{¶3} On June 16-17, 2017, T.J. Automation hosted a party on its premises in
Archbold, Henry County, Ohio to celebrate its 20th anniversary. (See Doc. No. 36,
Plaintiffs’ Exs. C, D). The 20th anniversary party was a private function for T.J.
Automation, its employees, and their families. (See id., Plaintiffs’ Ex. D). Amy
was primarily responsible for planning the party, which featured a wide range of
activities including a cornhole tournament, “inflatables,” face painting, and a live-
band performance on the evening of June 17. (Doc. No. 70, Tracy’s May 15, 2018
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Depo. at 12-13); (Doc. No. 71, Amy’s May 15, 2018 Depo. at 12); (Doc. No. 36,
Plaintiffs’ Exs. B, C). Food and alcoholic beverages were also provided to
attendees. (See Doc. No. 36, Plaintiffs’ Exs. C, K).
{¶4} At the time of the 20th anniversary party, Jonathan Spees (“Spees”),
Jackson’s father, was employed by T.J. Automation as a “[m]achine builder, fixture
builder.” (Doc. No. 69, Spees’s May 15, 2018 Depo. at 14). On June 17, 2017,
five-year-old Jackson accompanied Spees to the anniversary party along with
Spees’s then-girlfriend, Sierra Kennedy (“Kennedy”). (Id. at 25). Once they arrived
at the party, Spees supervised Jackson as Jackson waded in the water of a retention
pond located on the property. (Id. at 30). Although T.J. Automation did not
ordinarily permit swimming in the retention pond, various water toys, including an
inflatable raft owned by the Hammersmiths, were placed in and around the pond
during the anniversary party and multiple children were openly swimming and
wading in the water. (See Doc. No. 36, Plaintiffs’ Exs. A, F, G, I); (See Doc. No.
69, Spees’s May 15, 2018 Depo. at 60-65, 68); (See Doc. No. 71, Amy’s May 15,
2018 Depo. at 26, 32); (See Doc. No. 72, Kennedy’s May 15, 2018 Depo. at 16).
{¶5} After spending approximately one and a half hours traveling back and
forth between the retention pond, the “bouncy houses,” and the food service tables,
Spees and Kennedy left Jackson playing in the pond to sit beneath the shade of a
tent situated approximately 30 to 40 feet from where Jackson was playing. (See
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Doc. No. 69, Spees’s May 15, 2018 Depo. at 30, 69). According to Spees, Jackson
was wading in water up to his “[k]nee area,” and Spees instructed Jackson not to go
into the water any further. (Id. at 68-69). Within five minutes of sitting down under
the tent, Spees and Kennedy lost sight of Jackson. (Id. at 70). They then began
searching for Jackson. After searching throughout the inflatables, campers, and
other structures on the premises, Spees and a handful of other partygoers entered
the pond to search for Jackson. (Id. at 70-73). Eventually, approximately 10 to 15
minutes after losing sight of Jackson, Spees discovered Jackson’s body submerged
in roughly 3 to 4 feet of water. (Id. at 51, 73). Although attempts were made to
resuscitate Jackson, he was later pronounced dead. Drowning was established as
the likely cause of Jackson’s death.
{¶6} On August 21, 2017, Whalen filed a complaint against T.J. Automation,
Spees, an unnamed corporation, and various John and Jane Does. (Doc. No. 1).
Whalen’s complaint asserted claims of negligence and recklessness against T.J.
Automation and Spees. (Id.). The complaint also set out a claim against the
unnamed corporation asserting that the corporation negligently contributed to
Jackson’s death by failing to follow various sections of the Ohio Revised Code
applicable to the rental of amusement park equipment. (Id.). T.J. Automation filed
its answer to Whalen’s complaint on September 20, 2017. (Doc. No. 4).
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{¶7} On January 2, 2018, Whalen filed a motion for leave to file an amended
complaint in order to add the Hammersmiths as new party defendants and to include
a newly discovered claim of spoliation of evidence against T.J. Automation. (Doc.
No. 20). While Whalen’s motion for leave was pending, T.J. Automation filed a
motion for summary judgment on January 29, 2018. (Doc. No. 24). T.J.
Automation made several arguments in support of its motion for summary
judgment. First, T.J. Automation argued that because Jackson was engaged in a
recreational activity, swimming, before his death, the recreational activity doctrine
barred Whalen’s claims of negligence. (Id.). Furthermore, T.J. Automation argued,
because the recreational activity doctrine applied, Whalen was required to present
evidence that T.J. Automation intentionally or recklessly caused Jackson’s death,
and the record was devoid of such evidence. (Id.). In the alternative, T.J.
Automation argued that it was shielded from liability for negligence under R.C.
1533.181, Ohio’s statutory recreational user immunity. (Id.). In addition, T.J.
Automation contended that the attractive nuisance doctrine did not apply because
Jackson was not a trespasser in the retention pond at the time of his death. (Id.).
Finally, T.J. Automation argued that it was not vicariously liable under the doctrine
of respondeat superior for Spees’s role in causing Jackson’s death because Spees
was not acting within the scope of his employment at the time of Jackson’s death.
(Id.).
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{¶8} On January 29, 2018, the same day that T.J. Automation filed its motion
for summary judgment, the trial court granted Whalen’s motion for leave to file an
amended complaint. (Doc. No. 25). On February 5, 2018, Whalen filed an amended
complaint. (Doc. No. 27). The amended complaint added the Hammersmiths, in
their individual capacities, as new party defendants. (Id.). The amended complaint
asserted various negligence claims against the Hammersmiths as well as a claim for
spoliation of evidence. (Id.). The claim of spoliation of evidence was also asserted
as a new claim against T.J. Automation. (Id.). Whalen’s spoliation of evidence
claim arose from the apparent destruction of the Hammersmiths’ inflatable raft,
which was located in or around the retention pond on June 17, 2017. (See id.). In
all other respects, the amended complaint preserved in their entirety the claims
against T.J. Automation contained in Whalen’s original complaint. (See id.). On
February 16, 2018, T.J. Automation filed its answer to Whalen’s amended
complaint. (Doc. No. 34). On February 23, 2018, the Hammersmiths filed their
answer to Whalen’s amended complaint. (Doc. No. 37).
{¶9} On February 8, 2018, T.J. Automation filed a motion requesting that its
January 29, 2018 motion for summary judgment be “referenced and reincorporated
as against [Whalen’s] * * * Amended Complaint.” (Doc. No. 31). On February 22,
2018, Whalen filed her memorandum in opposition to T.J. Automation’s motion for
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summary judgment. (Doc. No. 36). On March 2, 2018, T.J. Automation filed its
reply to Whalen’s memorandum in opposition. (Doc. No. 38).
{¶10} On March 16, 2018, the trial court granted T.J. Automation’s motion
for summary judgment. (Doc. No. 42). The trial court concluded that the
recreational activity doctrine barred Whalen’s negligence claims against T.J.
Automation, that T.J. Automation did not intentionally or recklessly cause Jackson’s
death, that the attractive nuisance doctrine did not apply because Jackson was not a
trespasser, and that T.J. Automation was not vicariously liable for Spees’s tortious
conduct, if any, under the doctrine of respondeat superior. (Id.). Finally, the trial
court observed that because T.J. Automation’s motion for summary judgment did
not request summary judgment as to Whalen’s later-added claim of spoliation of
evidence, Whalen’s spoliation of evidence claim against T.J. Automation remained
outstanding. (Id.).
{¶11} On May 29, 2018, T.J. Automation filed a second motion for summary
judgment with respect to the only remaining claim against it—Whalen’s claim of
spoliation of evidence. (Doc. No. 65). On May 30, 2018, the Hammersmiths filed
a motion for summary judgment as to all claims asserted against them by Whalen
in her amended complaint. (Doc. No. 67).
{¶12} On June 18, 2018, Whalen filed a memorandum in opposition to T.J.
Automation’s second motion for summary judgment. (Doc. No. 97). In addition,
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Whalen’s memorandum in opposition also included a motion requesting that the
trial court reconsider its March 16, 2018 decision granting T.J. Automation’s first
motion for summary judgment. (Id.). Finally, Whalen’s memorandum in
opposition also included a request for “other alternative judicial relief,” specifically
a request that a decision on T.J. Automation’s second motion for summary judgment
be continued to allow for further discovery. (Id.). In support of her request for a
continuance to conduct additional discovery, Whalen attached to her memorandum
in opposition an affidavit executed by her trial counsel. (Id., Plaintiffs’ Ex. F). On
July 5, 2018, T.J. Automation filed its reply to Whalen’s memorandum in opposition
to its second motion for summary judgment. (Doc. No. 125). That same day, T.J.
Automation filed its memorandum in opposition to Whalen’s motion for
reconsideration and “alternative judicial relief.” (Doc. No. 126). On July 12, 2018,
Whalen filed a reply to T.J. Automation’s memorandum in opposition to her motion
for reconsideration and “alternative judicial relief.” (Doc. No. 140).
{¶13} In addition, on June 18, 2018, Whalen filed a memorandum in
opposition to the Hammersmiths’ motion for summary judgment. (Doc. No. 98).
In her memorandum in opposition, Whalen also requested that the trial court “stay
any decision under Civil Rule 56(F) until the discovery process concludes.” (Id.).
In contrast to her request for a continuance with respect to T.J. Automation’s second
motion for summary judgment, Whalen did not attach an affidavit explaining why
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she could not fully oppose the Hammersmiths’ motion for summary judgment
without additional discovery to her request for a continuance of a decision on the
Hammersmiths’ motion for summary judgment. On June 22, 2018, the
Hammersmiths filed both a reply to Whalen’s memorandum in opposition to their
motion for summary judgment and a memorandum in opposition to Whalen’s
request for a continuance under Civ.R. 56(F). (Doc. No. 111).
{¶14} On August 2, 2018, the trial court granted T.J. Automation’s second
motion for summary judgment. (Doc. No. 152). That same day, the trial court
granted the Hammersmiths’ motion for summary judgment. (Doc. No. 153). The
trial court concluded that the recreational activity doctrine barred Whalen’s
negligence claims against the Hammersmiths, that the attractive nuisance doctrine
did not apply because Jackson was not a trespasser, and that Whalen failed to
establish the elements of a claim of spoliation of evidence because the raft that had
allegedly been destroyed was located and made available to Whalen subsequent to
the filing of her amended complaint. (Id.).
{¶15} On August 27, 2018, Whalen filed a notice of appeal. (Doc. No. 158).
Whalen raises three assignments of error for our review. Because they concern
related issues, we will address Whalen’s first and second assignments of error
together, followed by her third assignment of error.
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Assignment of Error No. I
The trial court erred, as a matter of law, by granting summary
judgment upon Plaintiff-Appellant’s wrongful death and
survivorship claims against Defendant-Appellee, T.J.
Automation, Inc. [Journal Entries dated March 16, 2018, and
August 2, 2018]
Assignment of Error No. II
The trial court erred, as a matter of law, by granting summary
judgment upon Plaintiff-Appellant’s wrongful death and
survivorship claims against Defendant-Appellees, Tracey and
Amy Hammersmith. [Journal Entry dated August 2, 2018]
{¶16} In her first and second assignments of error, Whalen argues that the
trial court erred by granting T.J. Automation’s and the Hammersmiths’ motions for
summary judgment. Specifically, Whalen argues that the trial court erred by
granting T.J. Automation’s and the Hammersmiths’ motions for summary judgment
because the recreational activity doctrine does not apply under the particular facts
of this case. In addition, Whalen argues that even if the recreational activity doctrine
does apply to this case, there exists a genuine issue of material fact whether T.J.
Automation and the Hammersmiths recklessly caused Jackson’s death. Finally,
Whalen argues that the trial court erred by concluding that T.J. Automation could
not be held vicariously liable for Spees’s potential tortious conduct under the
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doctrine of respondeat superior despite the fact that Jackson’s death occurred at a
company party from which T.J. Automation expected to derive a business benefit.1
{¶17} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St. 3d 388, 390 (2000). “De novo review is independent and
without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.
Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S.
Bancorp, 195 Ohio App. 3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary
judgment is proper where there is no genuine issue of material fact, the moving party
is entitled to judgment as a matter of law, and reasonable minds can reach but one
conclusion when viewing the evidence in favor of the non-moving party, and the
conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn., 69 Ohio St. 3d 217, 219 (1994).
{¶18} “The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of material
fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing
Dresher v. Burt, 75 Ohio St. 3d 280, 292 (1996). “In doing so, the moving party is
not required to produce any affirmative evidence, but must identify those portions
of the record which affirmatively support his argument.” Id., citing Dresher at 292.
“The nonmoving party must then rebut with specific facts showing the existence of
1
Whalen does not appeal the trial court’s grant of summary judgment as to her attractive nuisance claims or
her claims of spoliation of evidence.
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a genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).
{¶19} Material facts are those facts “‘that might affect the outcome of the
suit under the governing law.’” Turner v. Turner, 67 Ohio St. 3d 337, 340 (1993),
quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986).
“Whether a genuine issue exists is answered by the following inquiry: [d]oes the
evidence present ‘a sufficient disagreement to require submission to a jury’ or is it
‘so one-sided that one party must prevail as a matter of law[?]’” Id., quoting
Anderson at 251-252.
{¶20} We turn first to Whalen’s argument that the trial court erred by
concluding that the recreational activity doctrine barred her negligence claims
against T.J. Automation and the Hammersmiths. “‘“[I]n order to establish
actionable negligence, one seeking recovery must show the existence of a duty, the
breach of the duty, and injury resulting proximately therefrom.”’” Drury v.
Blackston, 3d Dist. Allen No. 1-15-39, 2015-Ohio-4725, ¶ 10, quoting Carnes at ¶
14, quoting Strother v. Hutchinson, 67 Ohio St. 2d 282, 285 (1981). “The existence
of a duty in a negligence action is a question of law for the court to decide.” Booth
v. Walls, 3d Dist. Henry No. 7-12-23, 2013-Ohio-3190, ¶ 47, citing Brewster v.
Fowler, 11th Dist. Trumbull No. 99-T-0091, 2000 WL 1566528, *3 (Oct. 13, 2000),
citing Mussivand v. David, 45 Ohio St. 3d 314, 318 (1989). The recreational activity
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doctrine is a variation on the doctrine of primary assumption of risk. See Gentry v.
Craycraft, 101 Ohio St. 3d 141, 2004-Ohio-379, ¶ 11; Clark v. Barcus, 5th Dist.
Muskingum No. CT2017-0019, 2018-Ohio-152, ¶ 13; Konet v. Roberts, 11th Dist.
Portage No. 2015-P-0030, 2016-Ohio-1306, ¶ 27; Drury at ¶ 11. “[A] successful
primary assumption of risk defense means that the duty element of negligence is not
established as a matter of law,” and thus, the “defense prevents the plaintiff from
even making a prima facie case” of negligence. Gallagher v. Cleveland Browns
Football Co., 74 Ohio St. 3d 427, 431-432 (1996).
{¶21} Under the recreational activity doctrine, “‘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.’” Ochall v.
McNamer, 10th Dist. Franklin No. 15AP-772, 2016-Ohio-8493, ¶ 34, quoting
Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. Franklin No.
11AP-405, 2012-Ohio-453, ¶ 13, citing Crace v. Kent State Univ., 185 Ohio App. 3d
534, 2009-Ohio-6898, ¶ 13 (10th Dist.), citing Santho v. Boy Scouts of Am., 168
Ohio App. 3d 27, 2006-Ohio-3656, ¶ 12 (10th Dist.). See Marchetti v. Kalish, 53
Ohio St. 3d 95 (1990), paragraph one of the syllabus. “‘No liability attaches for
injuries caused by negligence that occurs during recreational activities.’” Drury at
¶ 11, quoting Taylor v. Mathys, 3d Dist. Union No. 14-04-32, 2005-Ohio-150, ¶ 10,
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citing Gentry at ¶ 6, citing Thompson v. McNeill, 53 Ohio St. 3d 102 (1990),
paragraphs one and two of the syllabus, abrogated on other grounds, Anderson v.
Massillon, 134 Ohio St. 3d 380, 2012-Ohio-5711.
{¶22} “‘The rationale [for the recreational activity doctrine] is that certain
risks are so inherent in some activities that the risk of injury is unavoidable.’”
Ochall at ¶ 34, quoting Crace at ¶ 13, citing Collier v. Northland Swim Club, 35
Ohio App. 3d 35, 37 (10th Dist.1987). “‘[O]nly those risks directly associated with
the activity in question are within the scope of [the recreational activity doctrine].’”
Horvath v. Ish, 134 Ohio St. 3d 48, 2012-Ohio-5333, ¶ 19, quoting Gallagher at 432,
citing Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175 (1925). To be covered
under the recreational activity doctrine, “‘the risk must be one that is so inherent to
the * * * activity that it cannot be eliminated.’” Id., quoting Konesky v. Wood Cty.
Agricultural Soc., 164 Ohio App. 3d 839, 2005-Ohio-7009, ¶ 19 (6th Dist.), citing
Westray v. Imperial Pools & Supplies, Inc., 133 Ohio App. 3d 426, 432 (6th
Dist.1999).
{¶23} Here, when viewing the evidence in a light most favorable to Whalen,
we find that no genuine issue of material fact exists regarding whether Jackson was
engaged in swimming and other water-based recreational activities when he
drowned. In response to Whalen’s interrogatories, Spees explained:
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Upon arrival, [they] took Jackson to the bounce house and to the pond,
where he joined other children already playing in and near the water’s
edge. After about ten minutes of playing in the water, [they] took
Jackson to get some food, and ate at a table under the tent. After
Jackson finished eating, he returned to the water, where [Spees] was
watching him.
(Doc. No. 36, Plaintiffs’ Ex. A). Moreover, in deposition, Spees stated that Jackson
waded in the pond “throughout the time period that [they] were there.” (Doc. No.
69, Spees’s May 15, 2018 Depo. at 32). Spees documented three trips Jackson took
into the pond. First, Spees stated that, shortly after arriving at the party, Jackson
waded into the pond up to his ankles. (Id. at 61). Then, after letting Jackson play
in the “bounce houses,” Spees returned with Jackson to the pond where Jackson
waded into the pond up to “shorts level, just below his waist” and “splash[ed] around
in the water.” (Id. at 64-65). Finally, after eating, Spees and Jackson returned to
the pond where Jackson entered the pond up to his “[k]nee area, * * * probably
below his knees.” (Id. at 68). Spees stated that, at that point, he went to sit down
under a tent, which was situated approximately 30 to 40 feet away. (Id. at 69).
Spees remembered instructing Jackson not to “go into the water any farther then
[sic] where he was at.” (Id.). Finally, he stated that the last time he saw Jackson in
the pond before finding his submerged body, Jackson was in the pond “[n]o more
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than 10 foot” from the Hammersmiths’ inflatable raft positioned partially on the
shore. (Id. at 48). Spees’s deposition testimony is representative of the substantial
testimony and other evidence regarding Jackson’s activities in and around the pond
on June 17, 2017. Therefore, there is no genuine issue of material fact that Jackson
was engaged in swimming and other water-based recreational activities in the
moments before he drowned.
{¶24} Jackson’s activities in the retention pond on the day of the anniversary
party are best characterized as “swimming.” “Swimming is a recreational activity.”
Drury, 2015-Ohio-4725, at ¶ 12, citing Estate of Vince v. Estate of Smallwood, 11th
Dist. Trumbull No. 2005-T-0017, 2006-Ohio-1697, ¶ 20. “Drowning is an inherent
risk of swimming.” Salyer v. Brookview Village Condominium Assn., 5th Dist.
Fairfield No. 18-CA-08, 2018-Ohio-2255, ¶ 21, citing Mullens v. Binsky, 130 Ohio
App.3d 64, 70 (10th Dist.1998). See Kinnison v. Ohio State Univ., 10th Dist.
Franklin No. 13AP-501, 2013-Ohio-5715, ¶ 7-11. Thus, Jackson was voluntarily
participating in a recreational activity in the moments preceding his death and his
death was caused by a risk inherent in that activity.
{¶25} Nevertheless, Whalen argues that the recreational activity doctrine is
inapplicable to the facts of this case and that the trial court erred by concluding that
the doctrine bars her negligence claims against T.J. Automation and the
Hammersmiths. First, Whalen argues that T.J. Automation and the Hammersmiths
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“rel[y] heavily upon cases involving torts that were committed by minors, not adults
who had assumed a special duty of supervision.” (Underlining sic.) (Appellants’
Brief at 19). She also suggests that the recreational activity doctrine “does not
preclude a host from being held liable when a special commitment has been
undertaken, but has been carelessly disregarded.” (Id. at 20). Thus, Whalen appears
to argue that T.J. Automation’s and the Hammersmiths’ negligent supervision of
Jackson and the pond area forecloses application of the recreational activity
doctrine.
{¶26} Whalen’s argument is unpersuasive. “[N]egligent supervision is not
an exception to the [recreational activity doctrine].” Main v. Gym X-Treme, 10th
Dist. Franklin No. 11AP-643, 2012-Ohio-1315, ¶ 15, citing Schnetz v. Ohio Dept.
of Rehab. & Corr., 195 Ohio App. 3d 207, 2011-Ohio-3927, ¶ 47. Moreover, the
defendant’s assumption of responsibility for supervising the plaintiff is immaterial
to application of the recreational activity doctrine. Drury at ¶ 12, citing Kinnison at
¶ 9. Thus, to the extent that T.J. Automation and the Hammersmiths actually
assumed a duty to properly supervise Jackson, their negligent supervision of
Jackson would not render the recreational activity doctrine inapplicable. Instead,
Whalen would need to show that Jackson’s death was due to T.J. Automation’s or
the Hammersmiths’ intentional or reckless failure to provide appropriate
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supervision only once they had undertaken to provide it. There was no duty to
undertake to provide such supervision.
{¶27} Next, Whalen argues that the cases upon which T.J. Automation and
the Hammersmiths rely involve a “young tortfeasor and [a] young victim [who]
were willingly engaged in the [recreational] activity” and are “all easily
distinguished on th[e] basis * * * [that] the party owing the heightened duties * * *
was not participating in the activity.” (Appellants’ Brief at 19). Therefore, Whalen
appears to contend that the recreational activity doctrine cannot be extended to
shield nonparticipants from negligence liability for injuries sustained by participants
in or spectators to a recreational activity.
{¶28} Whalen’s argument is without merit. “It is clear that courts generally
extend primary assumption of the risk to relieve liability of owners, operators, and
sponsors of recreational activities.” Crace, 185 Ohio App. 3d 534, 2009-Ohio-6898,
at ¶ 20, citing Wilson v. Lafferty Volunteer Fire Dept., 7th Dist. Belmont No. 00
BA 29, 2001 WL 1530952 (Nov. 29, 2001), Bundschu v. Naffah, 147 Ohio App. 3d
105, 2002-Ohio-607 (7th Dist.), Whitaker v. Davis, 12th Dist. Warren No. CA96-
07-060, 1997 WL 30552 (Jan. 27, 1997), Rodriguez v. O.C.C.H.A., 7th Dist.
Mahoning No. 99 C.A. 30, 2000 WL 1486449 (Sept. 26, 2000), and Kline v. OID
Assocs., Inc., 80 Ohio App. 3d 393 (9th Dist.1992). “‘Non-participants involved in
the game may be held to the same standard as participants.’” Id., quoting Rodriguez
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at *2, citing Kline at 395-396. See Young v. Eagle, 12th Dist. Clermont No.
CA2016-09-063, 2017-Ohio-7211, ¶ 24 (collecting cases and noting that “other
courts of appeal[s] have extended the primary assumption of risk doctrine to non-
participant defendants”); Drury, 2015-Ohio-4725, at ¶ 2, 12 (shielding a non-
participant supervisor from negligence liability under the recreational activity
doctrine). Thus, T.J. Automation’s and the Hammersmiths’ status as non-
participant hosts and organizers does not defeat use of the recreational activity
doctrine.
{¶29} Furthermore, to the extent that Whalen suggests that the recreational
activity doctrine does not apply because Jackson was only five years old at the time
of his death, Whalen’s argument is incorrect. “‘[T]hose entirely ignorant of the risks
of a [recreational activity], still assume the risk * * * by participating in [the activity]
* * *. The law simply deems certain risks as accepted by [the] plaintiff regardless
of actual knowledge or consent.’” Gentry, 101 Ohio St. 3d 141, 2004-Ohio-379, at
¶ 12, quoting Gilles, From Baseball Parks to the Public Arena: Assumption of the
Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002).
Therefore, “in a personal injury action brought for injuries sustained while an
individual is a participant in * * * a * * * recreational activity, the age of the
participant * * * and whether he or she was capable of appreciating the inherent
risks are immaterial.” Id. at ¶ 13. Thus, application of the recreational activity
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doctrine is not barred by the fact that Jackson was only five years old or by the fact
that he may have been incapable of appreciating the risks of swimming in the
retention pond. See Drury at ¶ 12.
{¶30} Finally, Whalen argues that the recreational activity doctrine is
inapplicable because “reasonable minds can conclude that drownings are not an
unavoidable consequence of hosting work events for employees and their families.”
(Appellants’ Brief at 20). Whalen’s argument is unconvincing because she defines
the scope of the “recreational activity” at issue in this case too broadly. Although a
company party may be considered recreational in a general sense, the proper focus
of the analysis in cases such as this is not on whether a particular injury was an
“unavoidable consequence” of attendance at a generic company function. Rather,
recreational activity doctrine analysis should focus on whether an injury resulted
from a risk inherent in a specific sport, game, or activity offered to attendees at the
party. Therefore, Whalen’s argument is without merit because although drowning
may not be an inherent risk at every imaginable company party, it is certainly an
inherent risk at a company party where attendees are invited to participate in water-
based activities and ultimately take part in those water-based activities.
{¶31} Accordingly, in light of the foregoing, we conclude that the trial court
did not err by holding that the recreational activity doctrine applies to bar Whalen’s
negligence claims against T.J. Automation and the Hammersmiths.
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{¶32} Having concluded that the trial court properly applied the recreational
activity doctrine to bar Whalen’s negligence claims, we now consider whether a
genuine issue of material fact exists regarding whether T.J. Automation or the
Hammersmiths intentionally or recklessly caused Jackson’s death. Whalen does not
argue that T.J. Automation or the Hammersmiths intentionally caused Jackson’s
death. Instead, she argues that there is a genuine issue of material fact concerning
whether T.J. Automation or the Hammersmiths recklessly caused Jackson’s death.
{¶33} “Recklessness is a high standard.” Lovegrove v. Stapleton, 2d Dist.
Clark No. 2014-CA-96, 2015-Ohio-1669, ¶ 34, citing Rankin v. Cuyahoga Cty.
Dept. of Children & Family Servs., 118 Ohio St. 3d 392, 2008-Ohio-2567, ¶ 37.
“‘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.’” Id., quoting
Anderson, 134 Ohio St. 3d 380, 2012-Ohio-5711, at ¶ 34, citing Thompson, 53 Ohio
St.3d at 104-105, adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587
(1965), and citing Argabrite v. Neer, 2d Dist. Montgomery No. 26220, 2015-Ohio-
125, ¶ 36, quoting Moon v. Trotwood Madison City Schools, 2d Dist. Montgomery
No. 25779, 2014-Ohio-1110, ¶ 21. “‘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
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marked as to amount substantially to a difference in kind.’” Taylor, 2005-Ohio-
150, at ¶ 15, quoting 2 Restatement of the Law 2d, Torts, Section 500, Comment g
(1965). “‘The actor must be conscious that his conduct will in all probability result
in injury.’” Kurz v. Great Parks of Hamilton Cty., 1st Dist. Hamilton No. C-150520,
2016-Ohio-2909, ¶ 24, quoting O’Toole v. Denihan, 118 Ohio St. 3d 374, 2008-
Ohio-2574, paragraph three of the syllabus. “The consciousness that conduct will
likely cause injury is what distinguishes recklessness from negligence.” Id. at ¶ 25.
{¶34} “Ordinarily the question of whether conduct was reckless is properly
left for a jury.” Lemaster v. Grove City Christian School, 10th Dist. Franklin No.
16AP-587, 2017-Ohio-8459, ¶ 9, citing Wolfe v. AmeriCheer, Inc., 10th Dist.
Franklin No. 11AP-550, 2012-Ohio-941, ¶ 17, citing Matkovich v. Penn Cent.
Transp. Co., 69 Ohio St. 2d 210, 214 (1982). See Thompson v. Bagley, 3d Dist.
Paulding No. 11-04-12, 2005-Ohio-1921, ¶ 51. “‘Nevertheless, the [Supreme
Court] 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.’” Lemaster at ¶ 9, quoting Kurz at ¶ 26, citing O’Toole at ¶ 92. See Booth,
2013-Ohio-3190, at ¶ 57.
{¶35} Here, Whalen argues that T.J. Automation’s and the Hammersmiths’
“unwilling[ness] to provide any professional supervision at all” at the pond creates
a genuine issue of material fact regarding whether T.J. Automation or the
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Hammersmiths recklessly caused Jackson’s death. (Appellants’ Brief at 23).
Whalen’s argument is without merit. Under the particular facts of this case, even
when they are viewed in a light most favorable to Whalen, we cannot say that the
risk of harm posed to Jackson while he played in the retention pond was an
unreasonable one that was substantially greater than the degree of risk associated
with negligent conduct. As indicated above, for a course of conduct to be
“reckless,” the actor must consciously disregard or be indifferent to a known or
obvious risk. Lovegrove at ¶ 34. Importantly, the risk “‘“must itself be an
unreasonable one under the circumstances.”’” (Emphasis added.) Brown v. Harris,
2d Dist. Montgomery No. 27069, 2017-Ohio-2607, ¶ 24, quoting Thompson, 53
Ohio St. 3d at 105, quoting 2 Restatement of the Law 2d, Torts, Section 500,
Comment a (1965).
{¶36} Under the circumstances presented, we cannot say that there was an
unreasonable risk that Jackson could drown in the retention pond. Jackson was
brought to the anniversary party by Spees. There is no evidence that Spees was
required to bring Jackson to the party or that Spees had to let Jackson play in the
retention pond. Rather, the evidence suggests that parents voluntarily permitted
their children to play in the retention pond and that each parent assumed
responsibility for watching their own children as they played. Furthermore, the
record contains no evidence suggesting that T.J. Automation or the Hammersmiths
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knew of any latent hazards in the pond that would have increased the need for
professional supervision. Moreover, although alcoholic beverages were provided
to the guests, there is no evidence that Spees was overserved or that T.J. Automation
or the Hammersmiths instituted a policy of overserving the guests. Finally, there is
no evidence that T.J. Automation or the Hammersmiths were aware of any
deficiencies Jackson may have had as a swimmer that would have required
supervision in excess of that provided by Spees. Therefore, especially considering
that Spees was monitoring Jackson as he played in the retention pond, the failure of
T.J. Automation and the Hammersmiths to provide professional supervision did not
create an unreasonable risk that Jackson would drown. We cannot conclude that
they were conscious that their actions would, in all probability, result in Jackson’s
injury or death.
{¶37} In sum, we conclude that the trial court did not err by granting
summary judgment in favor of T.J. Automation and the Hammersmiths on Whalen’s
claims of direct negligence and recklessness.
{¶38} We turn next to Whalen’s argument that the trial court erred by
granting summary judgment in favor of T.J. Automation on her claim that T.J.
Automation is vicariously liable for Spees’s role in causing Jackson’s death.
Specifically, Whalen contends that a genuine issue of material fact exists regarding
whether Spees was “furthering his employer’s interest when he joined the
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gathering,” thereby exposing T.J. Automation to vicarious liability under the
doctrine of respondeat superior. (See Appellants’ Brief at 15-17).
{¶39} “The respondeat superior doctrine makes an employer or principal
vicariously liable for the torts of its employees or agents.” Auer v. Paliath, 140
Ohio St. 3d 276, 2014-Ohio-3632, ¶ 13, citing Clark v. Southview Hosp. & Family
Health Ctr., 68 Ohio St. 3d 435, 438 (1994). “In order for an employer to be liable
under the doctrine of respondeat superior, the employee’s tortious conduct must be
committed within the scope of his employment.” Hudson v. Flores, 3d Dist. Allen
No. 1-15-42, 2016-Ohio-253, ¶ 20, citing Cooke v. Montgomery Cty., 158 Ohio
App.3d 139, 2004-Ohio-3780, ¶ 17 (2d Dist.). “‘An employee’s conduct is within
the scope of his employment if it is the type of action which he is employed to
perform, occurs substantially within the authorized limits of time and space [of
employment], and is actuated, at least in part, by a purpose to serve the master.’”
Id., quoting Armaly v. Wapakoneta, 3d Dist. Auglaize No. 2-05-45, 2006-Ohio-
3629, ¶ 45, citing Cooke at ¶ 20. “[A]lthough scope of agency typically is a jury
question, the Supreme Court of Ohio has not carved out an exception to summary
judgment practice under Civ.R. 56 exclusively for vicarious liability claims.”
Carter v. Gerbec, 9th Dist. Summit No. 27712, 2016-Ohio-4666, ¶ 34. “‘[S]cope
of employment becomes a question of law’” susceptible to resolution by summary
judgment “when ‘reasonable minds can come to but one conclusion * * * regarding
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scope of employment.’” Id. at ¶ 25, quoting Osborne v. Lyles, 63 Ohio St. 3d 326,
330 (1992). That is, the scope of an employee’s employment becomes a question
of law “‘when “the facts are undisputed and no conflicting inferences are
possible.”’” Osborne at 330, quoting Mary M. v. Los Angeles, 54 Cal. 3d 202, 213
(1991), quoting Perez v. Van Groningen & Sons, Inc., 41 Cal. 3d 962, 968 (1986).
{¶40} We conclude that the trial court did not err by granting summary
judgment in favor of T.J. Automation on Whalen’s claim that T.J. Automation is
vicariously liable for Spees’s alleged tortious conduct. Whalen argues that there is
a genuine issue of material fact concerning whether Spees was acting in the scope
of his employment when he supposedly failed to properly supervise Jackson at the
anniversary party because “the Ohio Supreme Court has held that employees
attending * * * [work] function[s] can indeed be found to be furthering the[ir]
employer’s interest.” (Appellants’ Brief at 16). In support of her argument, Whalen
cites Kohlmayer v. Keller, 24 Ohio St. 2d 10 (1970), a case that considered whether
an employee who was injured at his employer’s company picnic was eligible to
participate in the workers’ compensation fund. In Kohlmayer, the plaintiff was an
employee of a small business who broke his neck when he dove off a pier at his
employer’s premises during a company picnic. 24 Ohio St. 2d at 10. The company
picnic was “sponsored, supervised and paid for by the employer and * * * given by
the employer for the purpose of generating friendly relations with his employees.”
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Id. at 11-12. In concluding that the employee sustained his injury “in the course of
employment,” thus making him eligible for participation in the workers’
compensation fund, the court observed that although “the plaintiff was not
compensated for his presence at the picnic,” “many factors * * * indicate[d] that his
attendance at the picnic was consistent with his contract of hire and was logically
related to his employment.” Id. at 12. The court noted that the picnic was designed
to improve employee relations, and that the employer’s involvement in coordinating
the function “created a substantial connection between the activity and the
employment” such that the swimming injury, which could “reasonably be expected
to occur at a company picnic at which swimming facilities are provided,” was
sustained in the course of employment. Id. at 12-13.
{¶41} Whalen’s reliance on Kohlmayer is misplaced. As explained by the
Fifth District Court of Appeals:
The Kohlmayer employee, who himself was injured, sought to
participate in the Workers Compensation Fund.
The Kohlmayer decision does not address the issue of an employer’s
potential liability to a third party as a result of an employee’s
negligence. * * * In the instant action, [the employee] was not the
individual injured, but rather the individual who caused the injury.
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Enders v. Bell-Haun Sys., Inc., 5th Dist. Delaware No. 05CAE100065, 2006-Ohio-
3246, ¶ 24. We agree with the Fifth District’s analysis. The policy considerations
underlying the workers’ compensation system differ from those that underlie the
doctrine of respondeat superior. “The underlying policy in the workers’
compensation system is to protect the interests of the employer and employee as
opposed to the interests of innocent third-party victims in the context of liability
under the doctrine of respondeat superior.” Butler v. Baker, 90 Ohio App. 3d 143,
146 (10th Dist.). Accordingly, what constitutes “course of employment” for
purposes of the workers’ compensation system is not necessarily coextensive with
“scope of employment” for purposes of the doctrine of respondeat superior. See id.
at 146. See also id. at 147-148 (Deshler, J., concurring) (noting that although the
“concepts ‘arising out of and in the course of employment’ and ‘within the scope of
employment’ are similar,” there are “inherent differences in the field of workers’
compensation and tort law” that suggest that the concepts are not interchangeable);
R.C. 4123.95 (providing that the workers’ compensation statutes “shall be liberally
construed in favor of employees and the dependents of deceased employees”).
{¶42} Furthermore, Kohlmayer itself was based, at least in part, on the
Supreme Court of Ohio’s finding that the “business-related benefits, * * * which
may be expected to flow to the employer from sponsoring a purely social event for
his employees, are sufficiently related to the performance of the required duties of
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the employee so that it is ‘correct to say that the Legislature intended the enterprise
to bear the risk of injuries incidental to that company event.’” 24 Ohio St. 2d at 13,
quoting Sica v. Retail Credit Co., 245 Md. 606, 617 (1967). Unlike the workers’
compensation statutes wherein the legislature expressed its intention that employers
be responsible for injuries sustained by their employees during company-sponsored
events from which the employer derived a business benefit, we have found no
comparable judgment by the legislature that employers should be liable for the torts
of their employees committed during company-sponsored events simply because an
employee’s tortious conduct happens to transpire at such an event. Therefore, we
conclude that Kohlmayer does not control whether Spees was acting in the scope of
his employment at the time he allegedly caused Jackson’s death, and we will
proceed to address the scope of Spees’s employment in light of the general
principles of respondeat superior discussed above.
{¶43} Here, the undisputed evidence establishes that at the time of Jackson’s
death, Spees was employed as a “[f]ixture builder, machine builder” at T.J.
Automation. (Doc. No. 69, Spees’s May 15, 2018 Depo. at 10, 14). There is no
evidence that Spees was regularly required to supervise children as part of the job
he was employed to perform, and there is no indication that T.J. Automation
specifically hired and paid Spees to supervise Jackson or other children on the day
of the anniversary party. Thus, Spees’s supervision of Jackson was not the type of
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action T.J. Automation employed Spees to perform. In addition, the fact that
Spees’s alleged tortious conduct occurred on T.J. Automation’s property does not,
by itself, mean that T.J. Automation is vicariously liable for that conduct. See
Hudson, 2016-Ohio-253, at ¶ 24 (“[A] finding that an employee’s tortious conduct
took place at his place of his employment is not, by itself, sufficient to hold an
employer responsible under a theory of respondeat superior.”), citing Armaly, 2006-
Ohio-3629, at ¶ 46. Although the record reflects that the party was held on property
owned by T.J. Automation, there is no evidence that the anniversary party was
conducted during normal work hours, that Spees was required to attend the party
under the terms of his employment contract, or that he was required to bring Jackson
to the party. Thus, from the record before us, it cannot be said that Spees’s tortious
conduct, if any, occurred within the spatial and temporal bounds of his employment.
Finally, there is no evidence that Spees’s attendance at the party or his assumption
of responsibility for supervising Jackson as he played in the pond were motivated
by a desire to serve T.J. Automation. While Whalen notes that the party was
conducted for the benefit of T.J. Automation’s employees and that T.J. Automation
admitted that the party was intended to “boost morale and foster comradery,” there
is no evidence that Spees attended the party with Jackson or allowed Jackson to play
in the pond with the purpose of helping T.J. Automation achieve those objectives.
Therefore, we conclude that reasonable minds can come to but one conclusion that
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Spees was not acting within the scope of his employment as he supervised Jackson
playing in the pond on the day of the anniversary party. Accordingly, the trial court
did not err by granting summary judgment in favor of T.J. Automation on Whalen’s
claim that the company is vicariously liable for Spees’s purported role in causing
Jackson’s death.
{¶44} Having concluded that the trial court did not err by granting summary
judgment in favor of T.J. Automation and the Hammersmiths on Whalen’s claims
against them, Whalen’s first and second assignments of error are overruled.
Assignment of Error No. III
The trial court erred as a matter of law, and otherwise committed
an abuse of discretion, by entering summary judgment before
Plaintiff-Appellant had a full and fair opportunity to complete her
discovery [Journal Entries dated March 16, 2018, and August 2,
2018]
{¶45} In her third assignment of error, Whalen argues that the trial court
abused its discretion by denying her the opportunity to conduct additional discovery
to respond fully to T.J. Automation’s and the Hammersmiths’ motions for summary
judgment. Specifically, she argues that the trial court abused its discretion by failing
to grant her Civ.R. 56(F) motions.
{¶46} Civ.R. 56(F) provides:
Should it appear from the affidavits of a party opposing the motion
for summary judgment that the party cannot for sufficient reasons
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stated present by affidavit facts essential to justify the party’s
opposition, the court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained or discovery to
be had or may make such other order as is just.
“‘“Mere allegations requesting a continuance or deferral of action for the purpose
of discovery are not sufficient reasons why a party cannot present affidavits in
opposition to the motion for summary judgment.”’” Zimpfer v. Roach, 3d Dist.
Shelby No. 17-17-03, 2017-Ohio-8437, ¶ 41, quoting Doriott v. MVHE, Inc., 2d
Dist. Montgomery No. 20040, 2004-Ohio-867, ¶ 40, quoting Gates Mills Inv. Co. v.
Pepper Pike, 59 Ohio App. 2d 155, 169 (8th Dist.1978). “‘Civ.R. 56(F) is
discretionary, not mandatory.’” Id., quoting GMAC Mtge., L.L.C. v. Purnell, 10th
Dist. Franklin No. 13AP-551, 2014-Ohio-940, ¶ 12. Thus, “[a]bsent an abuse of
discretion, the denial of a Civ.R. 56(F) motion will not be reversed.” Perpetual Fed.
Savs. Bank v. TDS2 Property Mgt., L.L.C., 10th Dist. Franklin No. 09AP-285, 2009-
Ohio-6774, ¶ 11, citing ABN AMRO Mtge. Group, Inc. v. Roush, 10th Dist. Franklin
No. 04AP-457, 2005-Ohio-1763, ¶ 23. An abuse of discretion suggests that a
decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219 (1983).
{¶47} Here, Whalen correctly notes that the trial court “never addressed [her]
request for a stay of the summary judgment ruling until discovery could be
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completed.” (Appellants’ Brief at 25). “Nevertheless, when a trial court enters
judgment but fails to expressly rule on a pending pretrial discovery motion, it is
ordinarily presumed that the court overruled the motion.” Perpetual Fed. at ¶ 9,
citing State ex rel. The V Cos. v. Marshall, 81 Ohio St. 3d 467, 469 (1998) and State
ex rel. Cassels, 69 Ohio St. 3d at 223. “Ohio appellate courts regularly presume that
a trial court that grants summary judgment without expressly ruling on a
pending Civ.R. 56(F) motion has overruled the Civ.R. 56(F) motion.” Id., citing
Franco v. Kemppel Homes, Inc., 9th Dist. Summit No. 21769, 2004-Ohio-2663, ¶
17, Wells Fargo Bank, N.A. v. Shingara, 11th Dist. Geauga No. 2007-G-2764, 2007-
Ohio-6154, ¶ 11, Sipple v. A.G. Edwards & Sons, Inc., 1st Dist. Hamilton No. C-
010701, 2002-Ohio-4342, ¶ 6, and Denham v. New Carlisle, 138 Ohio App. 3d 439,
442 (2d Dist.2000). The trial court’s grant of summary judgment to T.J. Automation
and to the Hammersmiths is inconsistent with a ruling granting Whalen’s Civ.R.
56(F) motions. Therefore, we conclude that the trial court effectively denied
Whalen’s Civ.R. 56(F) motions.
{¶48} We conclude that the trial court did not abuse its discretion by denying
Whalen’s Civ.R. 56(F) motions. At this point, we must emphasize that Whalen filed
two separate Civ.R. 56(F) motions: one in response to T.J. Automation’s motion
for summary judgment regarding Whalen’s spoliation of evidence claim and another
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in response to the Hammersmiths’ motion for summary judgment as to all claims
brought against them. (Doc. Nos. 97, 98).
{¶49} With respect to Whalen’s Civ.R. 56(F) motion filed in response to the
Hammersmiths’ motion for summary judgment, the trial court did not abuse its
discretion by denying her motion because Whalen failed to comply with Civ.R.
56(F). “‘Civ.R. 56(F) requires the [party opposing summary judgment] to submit
affidavits with sufficient reasons stating why it cannot present by affidavit facts
sufficient to justify its opposition.’” Denham at 443, quoting Gates Mills, 59 Ohio
App.2d at 169. “‘When a request for a continuance to respond to a motion for
summary judgment is not supported by affidavits, a trial court is free to consider the
merits of the motion without first ruling on the motion for continuance.’” Id.,
quoting Ramsey v. Edgepark, Inc., 66 Ohio App. 3d 99, 104 (10th Dist.1990), citing
Grange Mut. Cas. Co. v. State Auto. Mut. Ins. Co., 13 Ohio App. 3d 217 (1st
Dist.1983). Whalen’s Civ.R. 56(F) motion filed in response to the Hammersmiths’
motion for summary judgment was not supported by an affidavit stating sufficient
reasons why she could not present facts justifying her opposition to their motion for
summary judgment. Although Whalen attached an affidavit executed by her trial
counsel to her other Civ.R. 56(F) motion, she did not attach this affidavit to her
Civ.R. 56(F) motion filed in response to the Hammersmiths’ motion for summary
judgment and it was not otherwise incorporated by reference. Thus, because
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Whalen did not comply with Civ.R. 56(F) with respect to her request to continue a
ruling on the Hammersmiths’ motion for summary judgment pending further
discovery, the trial court did not abuse its discretion by granting the Hammersmiths’
motion for summary judgment without affording Whalen an opportunity to conduct
additional discovery.
{¶50} In addition, although Whalen did comply with Civ.R. 56(F) by
attaching an affidavit in support of her request to continue a ruling on T.J.
Automation’s second motion for summary judgment pending additional discovery,
the affidavit fails to set forth sufficient reasons why Whalen could not oppose T.J.
Automation’s second motion for summary judgment without additional discovery.
In the affidavit, Whalen’s trial counsel states that additional discovery is needed
because T.J. Automation “changed the evidence and advised plaintiffs that the
inflatable raft had been located and was now available for inspection.” (Doc. No.
97, Plaintiffs’ Ex. F). As a result, Whalen’s trial counsel contended that discovery
would need to be redone because previous discovery “was undertaken by the parties
on the basis of inaccurate evidence manufactured solely by * * * T.J. Automation.”
(Id.). However, given that the sole remaining claim then pending against T.J.
Automation was for spoliation of evidence arising from the alleged destruction of
the raft, Whalen should not have required additional discovery to take a position on
T.J. Automation’s motion for summary judgment as to the spoliation of evidence
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claim. After all, a successful spoliation of evidence claim requires a showing that
evidence was willfully destroyed. Elliott-Thomas v. Smith, 154 Ohio St. 3d 11,
2018-Ohio-1783, ¶ 10, quoting Smith v. Howard Johnson Co., Inc., 67 Ohio St. 3d
28, 29 (1993). Discovery of the raft should have allowed Whalen to abandon her
claim without additional discovery. Accordingly, the trial court did not abuse its
discretion by denying her motion.
{¶51} Whalen’s third assignment of error is overruled.
{¶52} Having found no error prejudicial to the appellants herein in the
particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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