Parker v. L.T.

[Cite as Parker v. L.T., 2017-Ohio-7674.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JEWELL PARKER, : APPEAL NO. C-160642
TRIAL NO. A-1405855
Plaintiff-Appellant, :
vs. : O P I N I O N.
L.T., :
and :
W.T., :
Defendants-Appellees, :
and :
CINCINNATI PRIMITIVE BAPTIST :
CHURCH,
Defendant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 20, 2017
Dennis C. Mahoney and J. David Bender, for Plaintiff-Appellant,
John R. Wykoff, for Defendants-Appellees.
OHIO FIRST DISTRICT COURT OF APPEALS
D ETERS , Judge.
{¶1} Plaintiff-appellant Jewell Parker appeals the judgment of the
Hamilton County Court of Common Pleas granting summary judgment in favor of
defendants-appellees W.T., a minor, and his father, L.T., on her claims for personal
injuries. We affirm the trial court’s grant of summary judgment to L.T., but reverse
its grant of summary judgment to W.T.
Background
{¶2} On October 21, 2012, Parker, an 80-year-old woman, attended the
morning service at the Cincinnati Primitive Baptist Church at the invitation of her
elderly friend, Kenneth Mobley. Parker had attended church services with Mobley
several times prior to that day. Each time the church had held a morning service,
taken a lunch break, and then held an afternoon service. After eating lunch, Parker
and Mobley walked out the side door of the church building and into the parking lot
towards the playground, which was located at the back of the parking lot.
{¶3} The parking lot contained four rows of parking spaces. One row of
parking spaces was located next to the building. The second and third rows of
parking spaces abutted each other. A fourth row of parking spaces was located at the
back of the lot near a grassy area. The parking lot contained space for vehicles to
drive between the first and second rows and between the third and fourth rows in the
parking lot. The playground was located at the edge of the parking lot beyond the
fourth row of parking spaces. It is undisputed that the parking lot was full of
vehicles.
{¶4} Mobley stated that he is “hard of hearing” and has a bad hip, which
causes him difficulty in walking, so he rarely leaves the church building between
services. Parker stated that she had visited the church before, but that she had never
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OHIO FIRST DISTRICT COURT OF APPEALS
been outside during the break between services. Mobley and Parker stated that they
were unaware that some of the boys in the congregation played football in the church
parking lot between the morning and afternoon church services.
{¶5} Both Parker and Mobley stated that as they were walking from the
second to the third row of vehicles in the parking lot, they heard what sounded like a
herd of cattle or horses running. Once they had walked past the third row of
vehicles, they stopped and looked before crossing. Mobley saw some boys standing
at a distance from them in a crowd in the open area between the third and fourth
rows of vehicles. Parker remembered seeing a crowd of people, but stated that she
could not see what they were doing. Both Mobley and Parker described hearing the
same sound like a herd of cattle or horses running. Parker stated that after she heard
this noise, W.T. ran into her and knocked her down.
{¶6} Mobley stated that he did not realize that the boys were playing
football until he saw them throw the ball and W.T. jump up to catch it, which was
just before W.T. came down and hit Parker on the right side. Parker couldn’t recall
exactly where she fell, but she stated it was nearer to the third row of parked vehicles.
Both Mobley and Parker described the incident as happening “in the blink of an eye.”
Parker stated that she broke her hip.
{¶7} W.T., a 15-year-old boy, stated that he was playing football with at
least ten people in the church parking lot between the third and fourth rows of
vehicles, because the grassy area at the back of the parking lot was really muddy and
a lot of little kids liked to play there. W.T. stated that he did not see Parker before
the football was thrown. He ran the length of seven parking spaces to catch a pass,
and when he turned around, he started back pedaling about two parking spaces,
“screamed for the ball, and then out of nowhere bumped into someone he didn’t see.”
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OHIO FIRST DISTRICT COURT OF APPEALS
When he turned around, he saw Parker on the ground. Mobley was standing to her
right side. W.T. apologized to Parker and tried to help her to her feet, but she
couldn’t stand.
{¶8} W.T. stated that the boys had been playing football 20-30 minutes
before Parker fell and that they played in the parking lot most Sundays. Prior to the
incident, the boys had stopped the football game to permit a woman to enter her
vehicle and leave the parking lot.
{¶9} Parker brought negligence claims against the church, W.T., and his
father, L.T. Parker alleged that L.T. had violated his duty as both W.T.’s parent and
as a deacon at the church to supervise the boys playing football in the parking lot.
W.T. and L.T. moved for summary judgment, arguing that they owed no duty to
Parker. They further argued that “assuming a duty was owed and breached, that
Parker’s claims would be barred by the affirmative defenses of primary assumption
of the risk doctrine, also known as the open and obvious doctrine.”
{¶10} Parker filed a memorandum opposing summary judgment. In the
memorandum, Parker stated that she was withdrawing her claim against L.T. in his
parental capacity. Parker alleged, however, that fact issues precluded summary
judgment with respect to whether L.T., in his capacity as a church deacon, had failed
to supervise the boys playing football in the parking lot. Parker further argued that
fact issues precluded summary judgment in favor of W.T. and that the assumption-
of-the-risk and the open-and-obvious doctrines did not bar her claims.
{¶11} The trial court granted summary judgment to W.T. and L.T. on the
basis that they owed no duty to Parker, but the trial court expressly stated it was not
determining whether the open-and-obvious doctrine applied to bar Parker’s claims.
Parker settled her negligence claim with the church.
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OHIO FIRST DISTRICT COURT OF APPEALS
Summary Judgment
{¶12} In a single assignment of error, Parker argues that the trial court erred
by granting summary judgment to W.T. and L.T.
{¶13} We review the trial court’s entry of summary judgment de novo, using
the same standard the trial court employed. Doe v. Shaffer, 90 Ohio St.3d 388, 390,
738 N.E.2d 1243 (2000). Summary judgment is appropriate where there is no
genuine issue of material fact, the moving party is entitled to judgment as a matter of
law, and the evidence demonstrates that reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party opposing the motion. Comer
v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.
{¶14} We first address the trial court’s grant of summary judgment to L.T.
In her brief, Parker admits that she withdrew her negligent-supervision claim against
L.T. that was based on his parental duty to supervise W.T. Parker settled her
negligence claim against the church. Parker does not separately argue in her brief
why the trial court erred in granting summary judgment to L.T. We decline, in the
absence of any argument or citation to legal authority, to address her challenge to the
trial court’s grant of summary judgment to L.T. We therefore, overrule the part of
Parker’s assignment of error challenging the trial court’s grant of summary judgment
to L.T. See App.R. 16(A)(7); State v. Perez, 1st Dist. Hamilton Nos. C-040363, C-
040364 and C-040365, 2005-Ohio-1326, ¶ 23.
{¶15} We turn now to the trial court’s determination that W.T. was entitled
to summary judgment on Parker’s negligence claim. Parker alleged that W.T. was
negligent because he had failed to exercise reasonable care to avoid physically
harming her while playing football in the church parking lot.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} To establish actionable negligence, Parker must show the existence of
a duty, a breach of the duty, and injury proximately resulting therefrom. Strother v.
Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). Parker argues the trial
court erred as a matter of law in granting summary judgment when the evidence
established that W.T. owed her a duty of reasonable care.
{¶17} “Duty, as used in Ohio tort law, refers to the relationship between the
plaintiff and the defendant from which arises an obligation of the defendant to
exercise due care toward the plaintiff.” Commerce & Industry, Ins. Co. v. Toledo, 45
Ohio St.3d 96, 543 N.E.2d 1188 (1989). “The minimum standard of care expected
under any circumstances is to exercise that degree of care and caution that an
ordinary careful and prudent person would exercise under similar circumstances.”
Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229,
29 N.E.3d 921, ¶ 27.
{¶18} Whether a duty exists depends on the foreseeability of the injury.
Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
As a society we expect people to exercise reasonable precautions
against the risks that a reasonably prudent person would anticipate.
Conversely, we do not expect people to guard against risks that the
reasonable person would not foresee. The foreseeability of the risk of
harm is not affected by the magnitude, severity, or exact probability of
a particular harm, but instead by the question of whether some risk of
harm would be foreseeable to the reasonably prudent person.
Accordingly, the existence and scope of a person’s legal duty is
determined by the reasonably foreseeable, general risk of harm that is
involved.
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OHIO FIRST DISTRICT COURT OF APPEALS
Cromer at ¶ 24. The existence of a duty is a question of law for the court to
determine. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).
{¶19} Parker contends that her injury was foreseeable, and that W.T. owed
her a duty of reasonable care to avoid physically harming her while he played football
in the church parking lot. We agree.
{¶20} “[A]ctors engaging in conduct that creates a risk to others have a duty
to exercise reasonable care to avoid causing physical harm.” Restatement of the Law
3d, Torts, Section 7 (2010); see Philadelphia Fire & Marine Ins. Co. v. Hirschfield
Printing Co., 73 Ohio App. 27, 29, 53 N.E.2d 827 (1943) (holding that defendant
owed a duty to the public to exercise reasonable care so that harm might not result to
others). Here, W.T. owed Parker a duty of reasonable care because it is foreseeable
that running and playing football in a crowded church parking lot would create a risk
of harm to other individuals who were not participating in the football game and
would be walking through the parking lot. See Gedeon v. East Ohio Gas Co., 128
Ohio St. 335, 338, 190 N.E. 924 (1934) (holding a defendant owes a duty “when the
injured person comes within the circle of those to whom injury may be reasonably
anticipated”). W.T.’s running backward in a parking lot full of cars while not looking
created the risk of a collision with Parker. W.T. moreover, recognized the risk of
harm to others. He stated that he was aware that the church congregation was taking
a break between services. When asked why the boys played football in the parking
lot, he stated consideration was given to little kids playing in the grassy area. Thus,
we agree with Parker that the trial court erred by concluding that it was not
reasonably foreseeable that W.T. would cause injury to her and therefore, granting
summary judgment to W.T. on the basis that he owed her no duty of care.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} Parker further argues that W.T. was not entitled to summary
judgment on the basis that the affirmative defenses of the assumption-of-the-risk
and the open-and-obvious doctrines barred her claims.
{¶22} As a general matter, whether someone assumes a risk or whether a
danger is open and obvious are two separate inquiries under the law. The doctrine of
primary assumption of the risk is based on the theory that the defendant owes the
plaintiff no duty as a matter of law. See Gallagher v. Cleveland Browns Football Co.,
74 Ohio St.3d 427, 432, 659 N.E.2d 1232 (1996). The doctrine applies when a
plaintiff knows of a risk and decides to proceed into the perilous situation despite
that danger. Whether to apply the affirmative defense of assumption of the risk
presents an issue of law for the court to determine. Id. at 435. In moving for
summary judgment, W.T. argued that Parker had proceeded into the “field of football
at her own risk.” We disagree. Parker was neither a participant nor a spectator of the
football game. She could not be expected to foresee or accept the attendant risk of
injury from the football game when she was merely walking through the parking lot.
See Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990). Thus, we
agree with Parker that W.T. was not entitled to summary judgment on this basis.
{¶23} Likewise, W.T. was not entitled to summary judgment on the basis
that the open-and-obvious doctrine precluded any duty he owed to Parker. W.T.
argued that he owed no duty to Parker because she had an unobstructed view of the
boys, making the football game “open and obvious.” The Ohio Supreme Court has
limited the open-and-obvious doctrine to persons who have a property interest in the
premises. Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 597 N.E.2d 504(1992); Eschmann v. RLA Invests., Inc., 1st Dist. Hamilton No. C-150576, 2016-
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Ohio-3331, ¶ 6. W.T. had no property interest in the premises. Thus, W.T. was not
entitled to summary judgment on this basis.
{¶24} Because we conclude that the trial court erred in granting summary
judgment to W.T. on the basis that he owed no duty to Parker, we need not
determine whether W.T. breached his duty of care, or whether his actions were the
proximate cause of Parker’s injuries. The assignment of error is sustained as to W.T.
We, therefore, affirm the grant of summary judgment as to L.T., reverse the trial
court’s grant of summary judgment to W.T., and remand this cause for further
proceedings in accordance with this opinion and the law.
Judgment affirmed in part, reversed in part, and cause remanded.
MOCK, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry this date.
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