Ochall v. McNamer

[Cite as Ochall v. McNamer, 2016-Ohio-8493.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Andrea Ochall et al., :
Plaintiffs-Appellants/ : No. 15AP-772
Cross-Appellees, (C.P.C. No. 14CV-5498)
v. :
(REGULAR CALENDAR)
William M. McNamer et al., :
Defendants-Appellees, :
Mark McMillen et al., :
Defendants-Appellees/ :
Cross-Appellants.
:
D E C I S I O N
Rendered on December 29, 2016
On brief: Kitrick, Lewis & Harris, Co. LPA, Mark Lewis,
Mark Kitrick, and Elizabeth Mote, for appellants.
Argued: Mark Lewis.
On brief: The Carr Law Office, LLC, Adam E. Carr, and
Eric K. Grinnell, for appellees William M. and Elizabeth
McNamer. Argued: Adam E. Carr.
On brief: Lane Alton, Joseph A. Gerling, and Monica L.
Waller, for appellees/cross-appellants Sharon and Mark
McMillen. Argued: Monica L. Waller.
On brief: Hollern & Associates, and Edwin J. Hollern, for
appellees James Porter and Jane Doe # 1.
Argued: Edwin J. Hollern.
APPEAL from the Franklin County Court of Common Pleas
No. 15AP-772 2
KLATT, J.
{¶ 1} Plaintiffs-appellants, Andrea Ochall, her husband Robert Ochall, and their
two minor children, appeal from a judgment of the Franklin County Court of Common
Pleas, granting the motions for summary judgment of defendants-appellees, Sharon and
Mark McMillen, James Porter and his minor daughter, Jane Doe, and William and
Elizabeth McNamer ("Liz"). For the reasons which follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On May 23, 2014, appellants filed a complaint against the McNamers, the
McMillens, Porter, Doe, McMillen Paving and Sealing, Inc. ("MP&S"), and McMillen
Paving, Inc. The complaint asserted claims for negligence, recklessness, negligent and/or
reckless design, construction, operation and maintenance, failure to warn or instruct,
negligent infliction of emotional distress, negligent entrustment, negligent supervision,
vicarious liability, and loss of consortium. The events giving rise to the complaint
occurred on September 20, 2013, when Mrs. Ochall was seriously injured while watching
a go-kart race on the McMillens' property.
{¶ 3} On the day of the incident, the McNamers had invited the Ochalls to their
home in Hilliard, Ohio, for the purpose of using the go-kart track located on the
McMillens' property. The McNamers and the McMillens are next-door neighbors and very
good friends. Liz McNamer and Robert Ochall are co-workers, and Liz McNamer had
previously invited the Ochalls over to use the McMillens go-kart track in 2011. The Ochall
family, both the adults and their two children, drove go-karts on the McMillens' track
during their visit in 2011. The Ochalls, however, had never met the McMillens before filing
the present lawsuit.
{¶ 4} The McMillens' son, Brian McMillen, with assistance from his younger
brother Scott, constructed the go-kart track in the McMillens' backyard between 1994-
1995, when Brian was between the ages of 18 and 19-years-old. The McMillens own and
operate a paving and sealing company, MP&S. Brian is now the vice president of MP&S,
but was not when he originally constructed the track.
{¶ 5} Brian and his brother built the track in their spare time, and used some
company equipment to build it. The McMillens routinely used company equipment on
their home projects. Brian explained that the track "basically is a twisted up driveway."
No. 15AP-772 3
(Jan. 5, 2015 Brian McMillen Dep. at 62.) The McMillens have never charged anyone
money to use the track and they do not operate the track commercially, it is something
they simply use "to [their] liking." Id. at 88.
{¶ 6} Although the McNamers and the McMillens are close frends, the McNamers
would always ask the McMillens for permission before bringing guests over to use the
track. Thus, prior to the Ochalls' 2013 visit, Liz McNamer asked the McMillens if they
could bring the Ochalls over to use the track. The McMillens said yes, and Mark McMillen
opened the McMillens' barn and prepared the go-karts for the group's use.
{¶ 7} The McMillens own five go-karts and the McNamers own one go-kart, but
the go-karts are all the same make and model. Brian McMillen purchased all the go-karts
from the same vendor shortly after he constructed the track, and the McNamers paid the
McMillens directly for their one go-kart. Brian explained that he selected these specific
go-karts because he "didn't want to go so fast out there" so that people would "need
helmets." Id. at 109. Brian noted that the go-karts have "a bumper, * * * a full harness
and had a roll cage," and could reach a maximum speed of 28 miles per hour. Id. Brian
also noted that he could not "recall whether or not we actually got a manual for the karts,"
noting that he did not "remember even seeing a manual." Id. at 115. The go-karts all have
stickers on the back which advise the drivers that there is no bumping.
{¶ 8} The McMillens store their go-karts in their barn, and there is a paved
driveway which connects the barn to the track. The driveway connects with the track at
the track's start/finish line. Porter explained that people would generally congregate on
the paved area next to the start/finish line in order "to trade positions with the drivers or
to watch people driving by." (Dec. 30, 2014 James J. Porter Dep. at 41.) Liz McNamer
stated that she "always stood" on the paved area near the start/finish line when she was at
the track. (Feb. 10, 2015 Elizabeth G. McNamer Dep. at 56-57.) Mrs. Ochall stated that,
during her visit in 2011, she was "instructed to stand in that – that particular area" by Liz
McNamer. (Dec. 4, 2014 Andrea L. Ochall Dep. at 29.) No one told Mrs. Ochall where to
stand during the 2013 visit. Id. at 135-36.
{¶ 9} Brian McMillen testified that he designed the track "not to have any
spectators." (B. McMillen Dep. at 168.) Brian explained that, when he took "people out
there, that's part of my deal: Stay up in the barn until you come up and get in a kart." Id.
No. 15AP-772 4
at 175. He also noted that anyone at the track had to "be aware. You've got cars going
around the track. You have to be aware that that's an issue." Id. Mark McMillen had
placed a bench at the back edge of that paved area next to the start/finish line. Brian
explained that the bench was "by no means a bleacher," as it was there simply for drivers
to rest on between and after races. Id. at 170-71.
{¶ 10} There are no barriers around the McMillens' go-kart track, only painted
edge lines. Brian McMillen explained that he purposely did not construct barriers because
barriers "would just be something for a kart to hit," and would "give a much greater
probability of making a car go airborn and possible flipping." Id. at 168, 232.
Accordingly, when driving on the McMillens' go-kart track, "there are times you go off the
track on a turn or you veer off for some reason or another. * * * And that happens
regularly." (J. Porter Dep. at 38.) Liz McNamer noted that she "went off into the grass"
the first time she drove on the track. (L. McNamer Dep. at 40, 42.) She explained that it
was "safe" for a driver to "go off the track and come back on." Id. at 108-09. Porter noted
that he had seen go-karts go off the track on the "big turns, * * * on the little turns, * * * on
the straightaways," and specifically stated that he had seen go-karts go off the track
"coming out that final turn into the start/stop" area. (J. Porter Dep. at 38-39; 45-46.)
{¶ 11} On the day of the incident, the Ochalls arrived with their two minor
children, and two of their children's friends. The McNamers' son-in-law, Porter, was also
present with his daughter, and the McNamers' granddaughter, Doe. Doe was 11 years old;
the Ochall children and their friends were all 13 years old. The group met at the
McNamers' house, and walked through the adjoining backyards to the McMillens' go-kart
track. The McMillens were not present at the track; Sharon McMillen was at the grocery
store and Mark McMillen was inside his home watching a football game.
{¶ 12} Liz McNamer gave the group instructions regarding how to operate the go-
karts, telling them, "the gas was on one side, the brake was on the other, the steering
wheel." (L. McNamer Dep. at 103.) Liz McNamer observed the children as they drove,
noting that "[t]hey seemed to be doing pretty well. They seemed like they were able to
manage going around the track." Id. at 106. Liz McNamer noted that she watched the
children driving to make sure that no one was "at risk," and noted that she "didn’t see
that." Id. at 117.
No. 15AP-772 5
{¶ 13} There were more people than go-karts during the 2013 event, so both the
adults and the children rotated using the go-karts throughout the day. As was typical at
the McMillens' track, multiple drivers drove off the track that day. Doe's go-kart came all
the way off the track and went into the grass, and Porter's go-kart came partially off the
track. One of the Ochall children drove off the track, "[a]ll four wheels were off the track,"
and Porter "had to push him out." (J. Porter Dep. at 93, 95-96.) Liz McNamer stated that
she "observed that day each child went off the track at some capacity." (L. McNamer Dep.
at 109.) Liz McNamer testified that, when Doe's go-kart left the track earlier in the day,
she spoke to her granddaughter and "cautioned her and advised her just to be careful. The
ground was pretty saturated. * * * There was water standing, so I just wanted her to be
aware and, you know, just cautioned her." (L. McNamer Dep. at 129.)
{¶ 14} Mrs. Ochall was aware that there were "no barriers, there's no safety
barriers" around the track. (A. Ochall Dep. at 137.) Mrs. Ochall also witnessed go-karts
driving off the track on the day of the incident, and admitted that she knew "that [a go-
kart] could come off the track." Id. at 139. Indeed, two photographs Mrs. Ochall took that
day depict go-karts which had driven partially and completely off the track. (See A. Ochall
Dep; Defs.' Exs. 3 and 4.) However, Mrs. Ochall believed that the paved area next to the
start/finish line was "a safe environment. That is a safe zone." (A. Ochall Dep. at 137.) No
one ever told Mrs. Ochall that the paved area was a safe zone. (See Dec. 4, 2014 Robert W.
Ochall Dep. at 13; A. Ochall Dep. at 191.)
{¶ 15} Mrs. Ochall drove a go-kart on the day of the incident. After driving, she
stood around the track taking pictures. Mrs. Ochall's camera had a telephoto lens, and
there was a cup she had to put her eye up to in order to use the camera. Because she was
taking pictures "one right after the other," Mrs. Ochall admitted that she was "[n]ot
always" able to see what was going on around her. Id. at 139-40. She admitted that her
vision was "[p]robably" obstructed by her camera. Id. at 140.
{¶ 16} After one to two hours at the track, the group decided they would hold one
last race. Porter, Mr. and Mrs. Ochall, Mr. and Mrs. McNamer, and an Ochall child were
all standing in the paved area adjoining the track near the start/finish line; the others
participated in the race. During the second lap of the race, as Doe came into the turn
which approached the start/finish area, "her hair band went over her eyes. She had
No. 15AP-772 6
grabbed it and thrown it off to get better vision. So as she grabbed it and thrown it off,
* * * she went straight through" the paved area next to the track and struck Mrs. Ochall.
(J. Porter Dep. at 117.) Mrs. Ochall was standing "10-12 feet to the south of the painted
edge line which delineated the marked boundary of the track surface" when the accident
occurred. (Pls.' Ex. C., Apr. 9, 2013 Choya R. Hawn Acc. Reconstruction Report at 8.)
Porter noted that, the cars are "hard to steer with one hand," so when Doe threw her
headband "she kind of jerked as well," which caused her to veer off the track. (J. Porter
Dep. at 117.) Doe confirmed these events and told her father immediately after the
incident that her "headband slipped over her eyes, and she threw it out and lost control."
Id. at 130.
{¶ 17} Doe's go-kart struck Mrs. Ochall directly and flung her into the air. When
Mrs. Ochall landed, she suffered a serious spinal cord injury. The last photograph Mrs.
Ochall took that day depicts Doe throwing her headband. (See A. Ochall Dep.; Defs.' Ex.
5.) Prior to Mrs. Ochall's injury, no one had ever been injured at the McMillens' go-kart
track. (L. McNamer Dep. at 44-45.)
{¶ 18} Although each defendant filed separate motions for summary judgment, all
defendants alleged that the doctrine of primary assumption of risk barred appellants'
negligence claims, and that there was no evidence of reckless or intentional misconduct.
The McMillens further asserted that, as they did not invite the Ochalls to their property,
they could not be considered the social hosts of the Ochalls. The McNamers asserted that,
as they were not the property owners, they could not be held liable for any condition on
the McMillens property. MP&S and McMillen Paving, Inc. argued that McMillen Paving,
Inc. was a shell corporation with no assets, and that MP&S did not design or construct the
track.
{¶ 19} Appellants filed a memorandum contra the defendants' motions for
summary judgment, asserting that "[n]othing occurred to alert [Mrs. Ochall] to any
danger of go-karts driving into spectators in the seating area." (Apr. 14, 2015 Pls.' Memo.
Contra at 8.) Appellants argued that primary assumption of the risk did not apply to the
facts of this case, because the track was designed defectively and because all of the
defendants had acted recklessly.
No. 15AP-772 7
{¶ 20} Appellants supported their memorandum contra with the report of their
accident reconstruction expert, Choya Hawn. Hawn observed that, "[i]n the absence of
any persons afoot the original track design was in [his] opinion reasonably safe for the
'go-kart operators.' " (Emphasis sic.) (Acc. Reconstruction Report at 13.) Hawn stated
that a "reasonable solution to the safety issue for persons afoot" was to construct "a small
elevated wooden platform (~7-8 inches in height) on the infield side of the
start/finish/staging area." Id. at 16. Hawn concluded that the "failure to either provide a
safe observation location or to otherwise dictate, communicate and enforce safety rules to
protect guests from the potential hazard associated with spectating was unreasonable and
made this an unsafe environment for persons afoot." Id. at 16, 18.
{¶ 21} On May 6, 2015, the court issued a decision and entry denying the
McMillens' motion for summary judgment, in part, and granting the business entities'
motion for summary judgment. The court concluded that, as the McNamers had asked the
McMillens if they could bring the Ochalls to the McMillens property, and the McMillens
had granted the McNamers permission to do so, "an implied invitation between the
McMillens and Plaintiffs occurred." (May 6, 2015 Decision & Entry at 4.) As such, the
court concluded that the Ochalls were the social guests of the McMillens. Regarding the
entities, the court determined that McMillen Paving, Inc. had "never performed any
business nor held assets, and never acted in the creation of the go-kart track," such that
the company was an "inappropriate party to the suit." Id. at 5. Regarding MP&S, the
court concluded that the company "was not employed to create or maintain the go-kart
track," and that Brian McMillen was not acting in his capacity as an employee of the
company when he constructed the track. Id.
{¶ 22} On July 31, 2015, the trial court issued a decision and entry granting the
McMillens', the McNamers', and Porter's and Doe's motions for summary judgment. The
court observed that go-karting is a recreational activity, and concluded that, "[s]ince the
risk of being injured by a go-kart leaving the track [was] a foreseeable risk of go-kart
racing on the McMillen track," the risk was "inherent to go-kart racing on a private,
barrier-less backyard track." (July 31, 2015 Decision & Entry at 7-8.) As such, the court
concluded that primary assumption of the risk applied to bar appellants' negligence
No. 15AP-772 8
claims, and that appellants could only recover if the defendants acted intentionally or
recklessly to cause Mrs. Ochall's injuries.
{¶ 23} The "parties agree[d] that no one acted intentionally to injure Andrea Ochall
on that day." Id. at 8. Accordingly, the court addressed whether any of the defendants
engaged in reckless misconduct. Appellants argued that the defendants were reckless
because they failed to enforce Brian McMillen's no-spectator rule. The court observed
that, while Brian McMillen had a no-spectator rule when he was at the track, Brian was
not the property owner, and neither the McMillens nor Brian McMillen acknowledged
Brian's personal rule as a track rule. As such, the court concluded that "not allowing adult
spectators at or near the track for races [was] not a rule, regulation, custom, or common
practice of the track or races conducted at the McMillen track." Id. at 11. The court also
addressed appellants' argument that the defendants were reckless because they had not
read or implemented safety guidelines from the go-kart manufacturer's or owner's
manuals. The court concluded that no defendant had a duty to inform appellants about
those safety guidelines.
{¶ 24} Regarding the McMillens, the court noted that, as the property owners, the
McMillens had no duty to improve their track, as they only had a duty to "exercise
ordinary care to prepare the property for social guests." Id. at 12. Accordingly, the
McMillens did not have "a duty to instruct guests on how to go-kart race or to implement
any rules other than those which the family uses on their land." Id. at 14. The court
observed that the McMillens merely allowed their neighbors and their neighbor's guests
to use their go-kart track. As such, the court did not find any evidence of reckless conduct
by the McMillens.
{¶ 25} Regarding the McNamers, the court noted that the McNamers similarly
"did not have a duty to instruct guests on how to drive a go-kart." Id. at 16. Regarding the
McNamers supervision of Doe, the court noted that Liz McNamer told her granddaughter
once to slow down. The court observed that "[a] single admonishment by a grandparent in
the presence of the child's parent" was "not sufficient evidence of recklessness." Id. at 19.
As there was no evidence indicating that the McNamers told appellants "they 'had to'
stand on the adjacent asphalt area," and as Liz McNamer also stood on the adjacent
asphalt area, the court could not find that the "McNamer's action of standing on the
No. 15AP-772 9
adjacent area rose to the level of reckless required by the theory of primary assumption of
the risk." Id. at 20.
{¶ 26} Regarding Doe, the court concluded that Doe was not reckless, "because
removing a hand from the steering wheel to clear one's vision is the lesser of two evils.
* * * [Doe] did not intentionally drive into the spectator area, but was unable to correct
her kart's path in time to not strike Plaintiff." Id. at 21. Regarding appellants claim that
Porter was reckless by not removing Doe from the track earlier in the day, the court
concluded that, as there was no evidence demonstrating that Doe was driving recklessly
throughout the day, there was no reason why Porter should have removed Doe from the
track.
{¶ 27} Accordingly, the court concluded that primary assumption of the risk
applied to the case, and that there was no evidence of reckless or intentional misconduct.
As such, the court found the defendants entitled to summary judgment as a matter of law.
II. ASSIGNMENTS OF ERROR
{¶ 28} Appellants appeal, assigning the following two assignments of error for our
review:
1. THE TRIAL COURT ERRED APPLYING PRIMARY
ASSUMPTION OF THE RISK TO HOLD THAT
DEFENDANTS-APPELLEES WERE ENTITLED TO
JUDGMENT AS A MATTER OF LAW.
2. THE TRIAL COURT ERRED IN HOLDING THAT THERE
EXISTED NO GENUINE ISSUES OF MATERIAL FACT
CONCERNING DEFENDANTS-APPELLEES' RECKLESS-
NESS, THUS ENTITLING THEM TO JUDGMENT AS A
MATTER OF LAW.
The McMillens have also filed a contingent cross-appeal, asserting the following sole,
assignment of error:
The Trial Court erred in denying in part the Motion for
Summary Judgment of Appellees/Cross-Appellants Sharon
McMillen and Mark McMillen and concluding that
Appellants were social guests of the McMillens rather than
licensees. The McMillens' assignment of error is conditional
upon the Courts' ruling on the assignment of error of
Appellants. If the Court overrules Appellants' assignment of
error, the McMillens will withdraw the cross-appeal.
No. 15AP-772 10
III. STANDARD OF REVIEW
{¶ 29} Appellate review of summary judgment motions is de novo. Helton v.
Scioto Cty. Bd. of Commrs., 123 Ohio App. 3d 158, 162 (4th Dist.1997). "When reviewing a
trial court's ruling on summary judgment, the court of appeals conducts an independent
review of the record and stands in the shoes of the trial court." Mergenthal v. Star Bank
Corp., 122 Ohio App. 3d 100, 103 (12th Dist.1997). We must affirm the trial court's
judgment if any of the grounds raised by the movant at the trial court are found to support
it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101
Ohio App. 3d 38, 41-42 (9th Dist.1995).
{¶ 30} Summary judgment is proper only when the party moving for summary
judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds could come to
but one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, that party being entitled to have the evidence most
strongly construed in that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St. 3d 181, 183 (1997).
{¶ 31} When seeking summary judgment on the ground that the nonmoving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
nonmoving party's claims. Dresher v. Burt, 75 Ohio St. 3d 280, 293 (1996). A moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the nonmoving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims.
Id. If the moving party meets this initial burden, then the nonmoving party has 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 nonmoving party does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party. Id.
No. 15AP-772 11
IV. FIRST ASSIGNMENT OF ERROR – PRIMARY ASSUMPTION OF RISK
{¶ 32} Appellants' first assignment of error asserts that the trial court erred by
applying the doctrine of primary assumption of the risk to the instant dispute. Appellants
asserted various negligence claims against the defendants, and "in 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." Strother v. Hutchinson, 67 Ohio
St.2d 282, 285 (1981), citing Feldman v. Howard, 10 Ohio St. 2d 189, 193 (1967). "[A]
successful primary assumption of risk defense means that the duty element of
negligence is not established as a matter of law." Wolfe v. Bison Baseball, Inc., 10th
Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns
Football Co., 74 Ohio St. 3d 427, 432 (1996).
{¶ 33} "Ohio law recognizes three categories of assumption of the risk as defenses
to a negligence claim: express, primary, and implied or secondary." Schnetz v. Ohio
Dept. of Rehab. and Corr., 195 Ohio App. 3d 207, 2011-Ohio-3927, ¶ 21 (10th Dist.),
citing Crace v. Kent State Univ., 185 Ohio App. 3d 534, 2009-Ohio-6898, ¶ 10 (10th
Dist.). "Express assumption of the risk applies when parties expressly agree to release
liability." Crace at ¶ 11. "Implied assumption of risk is defined as plaintiff's consent to or
acquiescence in an appreciated, known or obvious risk to plaintiff's safety." Collier v.
Northland Swim Club, 35 Ohio App. 3d 35, 37 (10th Dist.1987). "Under this approach to
assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff's
acquiescence in or appreciation of a known risk that acts as a defense to plaintiff's
action." Id.
{¶ 34} "Under the doctrine of primary assumption of the risk, a plaintiff who
voluntarily engages in a recreational activity or sporting event assumes the inherent
risks of that activity and cannot recover for injuries sustained in engaging in the activity
unless the defendant acted recklessly or intentionally in causing the injuries." Morgan v.
Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-
453, ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App. 3d 27,
2006-Ohio-3656, ¶ 12 (10th Dist.). See also Marchetti v. Kalish, 53 Ohio St. 3d 95
(1990), paragraph one of the syllabus. "The rationale is that certain risks are so inherent
in some activities that the risk of injury is unavoidable." Crace at ¶ 13, citing Collier at
No. 15AP-772 12
37. By participating in an activity, the plaintiff "tacitly consent[s]" to the risk of injury
inherent in the activity. Id. The test requires that: "(1) the danger is ordinary to the
game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a
result of the danger during the course of the game." Santho at ¶ 12.
{¶ 35} Thus, courts apply the doctrine of primary assumption of the risk to cases
involving sporting events and recreational activities, and generally extend the doctrine
to relieve liability of owners, operators, and sponsors of recreational activities. Crace at
¶ 12, 20. The doctrine applies regardless of whether the activity was engaged in by
children or adults, or was organized, unorganized, supervised, or unsupervised. Gentry
v. Craycraft, 101 Ohio St. 3d 141, 2004-Ohio-379, ¶ 8. The doctrine also applies to
spectators and participants alike. Id. at ¶ 10.
{¶ 36} Furthermore, when considering primary assumption of the risk, "the
injured plaintiff's subjective consent to and appreciation for the inherent risks are
immaterial to the analysis." Crace at ¶ 16, citing Gentry at ¶ 9. See also Foggin v. Fire
Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 10 (noting that
the plaintiff's subjective consent to the inherent risks of an activity are immaterial,
because "[t]hose entirely ignorant of the risks of the activity, still assume the risk by
participating in the activity"). Indeed, "primary assumption of risk requires an
examination of the activity itself and not plaintiff's conduct." Gehri v. Capital Racing
Club, Inc., 10th Dist. No. 96APE10-1307 (June 12, 1997). See Rees v. Cleveland Indians
Baseball Co., 8th Dist. No. 84183, 2004-Ohio-6112, ¶ 20, quoting Gum v. Cleveland Elec.
Illuminating Co., 8th Dist. No. 70833 (Feb. 13, 1997) (explaining that " 'the baseball fan
assumes the risk of being hit by a foul ball when he takes his place in the stands, not at the
moment the foul ball comes flying his way' "). Accordingly, Mrs. Ochall's personal belief
that the paved area next to the track was a safe zone is irrelevant to the primary
assumption of the risk analysis.
{¶ 37} " '[O]nly those risks directly associated with the activity in question are
within the scope of primary assumption of risk.' " Horvath v. Ish, 134 Ohio St. 3d 48,
2012-Ohio-5333, ¶ 19, quoting Gallagher at 432. "The affirmative defense of primary
assumption of the risk completely negates a negligence claim because the defendant
owes no duty to protect the plaintiff against the inherent risks of the recreational activity
No. 15AP-772 13
in which the plaintiff engages." Morgan at ¶ 14, citing Crace at ¶ 15. See also Pope v.
Willey, 12th Dist. No. CA2004-10-077, 2005-Ohio-4744, ¶ 11. "Because of the great
impact a ruling in favor of a defendant on primary assumption of risk grounds carries, a
trial court must proceed with caution when contemplating whether primary assumption
of risk completely bars a plaintiff's recovery." Gallagher at 432.
{¶ 38} The "goal" of the primary assumption of the risk doctrine "is to strike a
balance between encouraging vigorous and free participation in recreational or sports
activities, while ensuring the safety of the players." Marchetti at 99. See also Ferrari v.
Grand Canyon Dories, 32 Cal. 4th 248, 253, 38 Cal. Rptr. 2d 65 (observing that the
"overriding consideration in the application of primary assumption of risk is to avoid
imposing a duty which might chill vigorous participation in the implicated activity and
thereby alter its fundamental nature"); Yancey v. Superior Court, 28 Cal. 4th 558, 565,
33 Cal. Rptr. 777 (noting that "[d]uty is constricted in such settings because the activity
involves inherent risks which cannot be eliminated without destroying the sport itself").
{¶ 39} Whether to apply the affirmative defense of primary assumption of the risk
presents an issue of law for the court to determine. Crace at ¶ 12, citing Gallagher at 435.
We therefore review the trial court's application of the doctrine de novo. Id.
{¶ 40} Appellants contend that the trial court disregarded relevant authority when
it "looked only to 'foreseeable' and 'common' risks to invoke the doctrine." (Appellant's
brief, at 16.) Appellants assert that the trial court "misunderstood and misapplied Ohio
law" when it held that the risks which are foreseeable and common in the course of a sport
or activity are the inherent risks of the activity. Id. at 16-17. The trial court observed that
"[a] risk is found to be ordinary or inherent to the recreational activity when it arises from
conduct that is 'a foreseeable, customary part of the activity.' " (Decision & Entry at 4,
quoting Gentry at 144.)
{¶ 41} In Gentry the Supreme Court of Ohio held that "where injuries stem from
'conduct that is a foreseeable, customary' part of the activity, the defendant 'cannot be
held liable for negligence because no duty is owed to protect the victim from that
conduct.' " Id. at ¶ 10, quoting Thompson v. McNeill, 53 Ohio St. 3d 102, 104 (1990),
modified on other grounds by Anderson v. Massillon, 134 Ohio St. 3d 380, 2012-Ohio-
5711. The court in Gentry noted that, "[o]bviously," in Thompson, the court had "applied
No. 15AP-772 14
'primary' assumption-of-risk principles in limiting the defendant's liability." Id. at ¶ 11.
See Thompson at 106 (noting that, because "[s]hanking the ball is a foreseeable and not
uncommon occurrence in the game of golf," the plaintiff primarily assumed the risk of
being hit by a golf ball by playing the game of golf).
{¶ 42} Under the three-part test, a danger ordinary to a game is a danger which is
customary to the game. See Santho at ¶ 13 (observing that "[f]alling is an ordinary danger
of ice-skating," and that "[c]olliding with the perimeter boards is an ordinary danger of ice
rink skating"). When a danger is a foreseeable part of a game, there will be common
knowledge that the danger exists. See id. (noting that it is "foreseeable that any time an
individual, regardless of skill, steps onto ice, they risk falling or coming into contact with
the barriers that set the perimeter of the skating surface"); Cincinnati Base Ball Club Co.
v. Eno, 112 Ohio St. 175, 180-81 (1925) (noting that it is "common knowledge that in
baseball games hard balls are thrown and batted with great swiftness, that they are liable
to be thrown or batted outside the lines of the diamond, and that spectators in positions
which may be reached by such balls assume the risk thereof").
{¶ 43} Thus, for primary assumption of the risk purposes, the risks inherent in an
activity are the foreseeable, common, and customary risks of the activity. See also Foggin
v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 9 (noting
that the "types of risks associated with the activity are those that are foreseeable and
customary risks of the activity"); Deutsch v. Birk, 189 Ohio App. 3d 129, 2010-Ohio-3564,
¶ 13 (12th Dist.). Accordingly, the trial court did not err by concluding that the foreseeable
and cutomary risks of an activity are the inherent risks of the activity. See Gentry at ¶ 10,
quoting Thompson at 104 (primary assumption of the risk applies to " 'conduct that is a
foreseeable, customary part' of the activity").
{¶ 44} Appellants further contend that the the "trial court improperly applied the
doctrine when it failed to analyze whether the risks that injured Plaintiff-Appellant were
inherent, necessary or unavoidable, i.e., whether they could be eliminated." (Appellant's
brief, at 17.) Appellants assert that the trial court "ignored" the "various ways" the
danger to spectators "could have been eliminated." Id. at 23. Relying on the accident
reconstruction report, appellants assert that "the 'potential' danger to spectators could
have been easily eliminated by (1) moving the spectator area, (2) elevating the spectator
No. 15AP-772 15
area by wooden deck, (3) installing simple barriers between the track and spectators, or
(4) warning guests about the no-spectator rule." Id. Appellants, however, misconstrue
the meaning of risks which "cannot be eliminated."
{¶ 45} The Supreme Court of Ohio has held that " '[t]o be covered under the
doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be
eliminated.' " Horvath at ¶ 19, quoting Konesky v. Wood Cty. Agricultural Soc., 164
Ohio App. 3d 839, 2005-Ohio-7009, ¶ 19 (6th Dist.). In Horvath, the court observed
that "collisions between skiers are an inherent risk of skiing," as " 'other skiers are as
much a part of the risk in downhill skiing, if not more so than the snow and ice,
elevation, contour, speed and weather conditions.' " Id. at ¶ 20, quoting Hughes v.
Seven Springs Farm, Inc., 563 Pa. 501, 511 (2000). See also Morgan v. Kent State Univ.,
10th Dist. No. 15AP-685, 2016-Ohio-3303, ¶ 25 (noting that, "by its very nature, karate, as
a martial art, is an inherently dangerous activity from which the risk of harm cannot be
eliminated"). To determine the risks which are so inherent in an activity that they cannot
be eliminated, a court must "focus[] exclusively upon the activity itself." Schnetz at ¶ 28.
See also Crace at ¶ 25.
{¶ 46} For example, in Brumage v. Green, 2d Dist. No. 2014-CA-7, 2014-Ohio-
2552, the court observed that " '[l]osing control and flipping an ATV is a foreseeable and
customary risk associated with the activity of driving or riding on an ATV.' " Id. at ¶ 14,
quoting Curtis v. Schmid, 5th Dist. No. 07 CAE 11 0065, 2008-Ohio-5239, ¶ 56. The
plaintiff argued that certain factors specific to the incident, including that he was driving
the ATV on a public roadway, made the risks he faced "greater than are customary in the
recreational activity of riding ATVs." Id. at ¶ 15. The court refused to address the
plaintiff's incident specific arguments, because "flipping off an ATV and getting injured
is a risk that is inherent in the recreational activity of riding an ATV." Id. at ¶ 16. The
Brumage court observed that, " '[w]hat causes the driver to lose control is better
addressed when determining whether the driver acted intentionally, [or] recklessly.' "
Id. at ¶ 16, quoting West v. Devendra, 7th Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 26. See
also Morgan v. Kent State at ¶ 22, 25.
{¶ 47} Accordingly, in analyzing the risks inherent to go-karting, we must focus
exclusively on the activity of go-karting, and not on the actions or omissions of the
No. 15AP-772 16
defendants in this case. See Crace at ¶ 25 (observing that, if the law treated participants
differently from nonparticipants, the primary assumption of the risk analysis would
shift "away from the activity and its inherent risks," and would "unnecessarily focus
upon the extent of the defendant's involvement and the defendant's classification as a
participant, non-participant, * * * sponsor, provider, or otherwise,* * * with no regard
for the inherent risks of the activity"). Appellants' contentions regarding the things the
defendants could have done to alter the McMillens' track for the benefit of spectators
essentially amount to claims that the various defendants were reckless. See Morgan v.
Church of Christ at ¶ 16.
{¶ 48} Additionally, appellants' arguments regarding the "risks to spectators" at
the McMillens' track improperly attempts to shift the focus of the analysis away from the
risks inherent in the activity. (Appellant's brief, at 20.) Because the primary assumption
of the risk analysis focuses on the risks inherent in the activity at issue, spectators and
participants are treated the same. Indeed, "spectators as well as participants 'must accept
from a participant conduct associated with that sport' or activity." Gentry at ¶ 10, quoting
Thompson at 104. See also Taylor v. Mathys, 3rd Dist. No. 14-04-32, 2005-Ohio-150,
¶ 10, citing Gentry at ¶ 6 (noting that primary assumption of the risk's "limitation on
liability extends to the spectators of a recreational activity as well as the participants");
Crace at ¶ 25. " '[T]hose entirely ignorant of the risks of a sport, still assume the risk * * *
by participating in a sport or simply by attending the game.' " Gentry 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).
{¶ 49} Focusing on the activity at issue herein, we observe that go-karting is a
recreational activity involving motorized go-karts which are propelled forward around a
racetrack by a driver. During a race, a go-kart driver will attempt to drive their go-kart
past the other go-karts in the race in order to be the first go-kart to cross the finish line.
The joy of go-karting derives from attempting to maintain control over one's go-kart
while maneuvering, at speed, around the go-kart track and the other go-karts present on
the track. Accordingly, the inherent risks of go-karting include running into other go-
karts on the track, or deviating from the track and running into any object present
around the track. See Loewenthal v. Catskill Funland, 237 A.D.2d 262, 263, N.Y.S.2d
No. 15AP-772 17
169 (1997) (where the plaintiff's "go-kart veered off its intended course, striking the wall
in the pit area head on," the court observed that, "[i]n riding the go-cart, the plaintiff
* * * assumed the risks inherent in the activity," which included that the "go-cart would
bump into objects"); Garnett v. Strike Holdings LLC, 131 A.D.3d 817, 820, N.Y.S.1st 786
(2015) (noting that "the operator of the track does not have a duty to protect the go-kart
rider from the inherent and foreseeable risk of being bumped by another go-kart").
Compare Jussila v. United States Snowmobile Assn., 556 N.W.2d 234, 237
(Minn.App.1996) (noting that "a snowmobile takes on a more dangerous character when
operated on a racetrack by competitors attempting to win races").
{¶ 50} Accordingly, the risk that a go-kart may veer off the track and strike any
object present nearby is a risk inherent to go-karting. As such, Mrs. Ochall assumed that
risk in the primary sense when she stood 10 to 12 feet away from the McMillens' go-kart
track while a go-kart race was in process.
{¶ 51} Appellants assert that the trial court erred "by conflating the duty analysis
under primary assumption of the risk with the social host duty of care in premises liability
cases." (Appellant's brief, at 27.) The trial court noted appellants' argument that "a risk is
not inherent if it can be eliminated with due care," but concluded that, because
"[d]efendants, as social hosts, did not have an additional duty to make adjustments to
the private, residential track, * * * the risk in question [was] a risk inherent to go-kart
racing on a private, barrier-less backyard track." (Decision & Entry at 5, 7-8.) Appellants
contend that the trial court's analysis improperly mixed "duty with breach." (Appellant's
brief, at 27.) We agree.
{¶ 52} The trial court erred in its primary assumption of the risk analysis because it
failed to ascertain the risks inherent in the activity of go-karting. Instead, the trial court
wrongly focused on the defendants, and the duty they owed to appellants, rather than
focusing on the activity at issue. See Schnetz at ¶ 30 (finding that the trial court erred by
concluding that primary assumption of the risk did not apply "to inmate claims against a
prison because a prison owes a duty of care to inmates in its custody and control," as such
a "holding shift[ed] the focus of the analysis away from the activity and its inherent risks
and improperly focuse[d] upon the extent of the defendant's involvement and the
defendant's classification").
No. 15AP-772 18
{¶ 53} Although the trial court erred by considering the defendants' duty under the
primary assumption of the risk analysis, this error does not amount to reversible error.
Pursuant to our de novo review, we have determined that an inherent risk of go-karting is
the risk that a go-kart will deviate from its intended course upon the track and strike any
object which may be present around the track. As such, absent evidence of reckless or
intentional conduct, primary assumption of the risk applies to the facts of this case and
defeats appellants' negligence claims. Accordingly, we have reached the same result as the
trial court, albeit for different reasons. See Phillips v. Dayton Power & Light Co., 93 Ohio
App.3d 111, 115 (2d Dist.1994) (noting that, since the reviewing court must independently
determine, as a matter of law, whether summary judgment was properly granted, "[a]
summary judgment based on a legally erroneous analysis of the issues must be affirmed if
the appellate court independently determines that upon the record summary judgment
should have been rendered as a matter of law, albeit for different reasons").
{¶ 54} Appellants assert that the trial court disregarded the two Ohio go-karting
cases, Goffe v. Mower, 2d Dist. No. 98-CA-49 (Feb. 5, 1999) and Reed v. Cassidy, 3d Dist.
No. 2-01-36 (Apr. 10, 2002), in reaching its summary judgment decision. The trial court
noted the cases, but correctly found the cases inapplicable to the present dispute. (See
Decision & Entry at 5-6.)
{¶ 55} In Reed the plaintiff was injured at a charity go-kart race being held on city
streets. The race organizers had placed a four-foot high fence and bales of hay around the
race perimeter to separate the sidewalk from the racetrack. The plaintiff was "initially
watching the race from a spectator area," but had moved to another area to watch the
race, which was still "protected by the orange fencing" but had "fewer hay bales." Id. Two
go-kart drivers collided during the race, causing one go-kart to veer off the track and
strike the plaintiff. The court stated that it was "not convinced that injury to a spectator
[was] the kind of risk so inherent to the sport of go-kart racing that the appellant could be
deemed to have consented to it." Id. The court noted that the plaintiff "testified that she
observed other accidents during go-kart races and that there had, in fact, been several
other accidents on the day she was hit." Id. The court concluded that simply observing
other go-karts run into each other did "not mean that injury to spectators as a result of
No. 15AP-772 19
karts leaving the track [was] inherent to racing," but stated that it "raise[d] a question of
fact as to whether such risk was obvious to appellant." Id.
{¶ 56} As Reed is a decision from the Third District Court of Appeals, it holds no
precedential value in this district. Furthermore, as the Reed court failed to engage in a
proper primary assumption of the risk analysis, we do not find the decision persuasive.
Reed did not attempt to ascertain the risks inherent to the activity of go-karting. Instead,
the court simply concluded that injury to spectators was not an inherent risk of go-
karting. In so concluding, the court treated spectators differently from participants, in
violation of Gentry. The Reed court also inappropriately considered the plaintiff's
subjective understanding of the risk, in further violation of Gentry.
{¶ 57} Unlike the present case which concerns a private, free, backyard go-kart
track, in Goffe the plaintiff was a business invitee at a commercial go-kart track. The
plaintiff was injured exiting her go-kart at the end of the ride when another driver
accidently accelerated and "struck a parked go-cart in the off-loading area of the track,"
which then "struck Ms. Goffe in the leg." Id. The plaintiff alleged defective design had
caused her injury because, at the end of the ride, a gate would funnel the go-karts "into a
confined pit area so that a runaway go-cart had no option but to strike go-carts in the
unloading area." Id. The court observed that "[o]ne who rides an amusement device
assumes the ordinary risks inherent in the ride, insofar as those risks are obvious and
necessary, but only so long as the device is properly designed and the operator has used
proper care in its construction and operation." Id., citing Pierce v. Gooding Amusement
Co., 55 Ohio Law. Abs. 556 (1949). The court concluded that the business had breached its
"duty of ordinary care to Ms. Goffe by desiging an amusement ride which created an
unreasonable danger that the rider would be injured while exiting the ride but before
reaching a place of safety." Id.
{¶ 58} Relying on Goffe, appellants contend that primary assumption of the risk
cannot apply in this matter, because defendants "enhanced the unusual risk to spectators
by operating a defective track." (Appellant's brief, at 23.) Appellants assert that
defendants "failed to design, build and operate the track to account for spectator safety by,
among other steps, moving the spectator area inside the track and elevating it." Id. at 24.
Appellants argue that the track was defective because defendants "built and maintained a
No. 15AP-772 20
'short chute' at the final high-banked turn to create faster go-kart speeds approaching the
spectator area." Id. However, there is no evidence in the record indicating that either the
short-chute or the high-banked turn created faster go-kart speeds, or that these aspects of
the track caused the accident.
{¶ 59} Brian McMillen explained that, in 2010-11, he "raised the elevation" on the
curve approaching that start/finish area in order to "control flooding from the pond and
the ground water." (B. McMillen Dep. at 135.) The alteration resulted in the track
"dropping three or four inches over that 30-40 feet" as a kart approached the
straightaway into the start/finish line. Id. at 149. Brian referred to the straightaway as a
"short chute," explaining that a "short chute" is just a "small piece of straightaway
between two turns." Id. at 150. Notably, Brian confirmed that this alteration did not
affect a driver's "ability to change speed or how they had to maneuver that part of the
track." Id. at 149.
{¶ 60} Hawn concluded that "it was mathematically possible for a kart to be driven
successfully through the high-banked curve at the south end of the track" approaching the
start/finish area "at full (maximum) speed," and explained that "[t]he laws of Newtonian
physics dictate that if a kart were to exceed the critical speed of the high-banked curve or
fail to maintain a traversable line through the curve, the kart will break tracation and
likely slide towards the outside of the curve beyond the apex." (Acc. Reconstruction
Report at 10, 13. ) Hawn stated that Doe's go-kart was travelling between 18 to 25 miles
per hour when it struck Mrs. Ochall, "which was consistent with the critical speed
calculations for the kart traversing the high-banked curve." Id. at 11. Thus, Doe did not
exceed the critical speed of the high-banked curve. Although Hawn referred to the high-
banked curve as the "fastest curve of the track," he did not find that the curve created
unreasonably fast go-kart speeds or that the curve would cause a driver to lose control of
their go-kart. Id. at 13.
{¶ 61} Indeed, Hawn concluded that the "design, layout, construction and overall
environment of the track facility (with the generous clear zone) was reasonably safe for
the 'operators of the karts.' " Id. at 17. Hawn also stated that the "the original track design
was in [his] opinion reasonably safe for the 'go-kart operators.' " (Emphasis sic.) Id. at
15. Thus, appellants own expert concluded that the design of the track was safe.
No. 15AP-772 21
Appellants have failed to demonstrate a genuine issue of material fact regarding whether
the track was designed defectively.
{¶ 62} Appellants' contention that the McMillens' track was defectively designed
because there was no infield, elevated, spectator platform, does not amount to an
argument that the track was designed defectively. An elevated viewing platform would not
be part of the track itself; rather, it would be a separate structure near the track.
Appellants' contention that defendants should have constructed a viewing platform for
spectators, or taken other actions for spectators, do not allege that the track itself was
designed defectively, but are essentially claims that the defendants were reckless by failing
to build a spectator platform.
{¶ 63} Based on the foregoing, we find that Mrs. Ochall primarily assumed the risk
of injury when she stood 10 to 12 feet away from the McMillens' go-kart track. Appellants'
first assignment of error is overruled.
V. SECOND ASSIGNMENT OF ERROR - RECKLESSNESS
{¶ 64} Appellants' second assignment of error asserts that the trial court erred in
finding no genuine issues of material fact regarding defendants' recklessness.
{¶ 65} An actor's conduct is reckless when the actor " 'does an act or intentionally
fails to do an act which it is his duty to the other to do, knowing or having reason to know
of facts which would lead a reasonable man to realize, not only that his conduct creates an
unreasonable risk of physical harm to another,' " but also " 'that such risk is substantially
greater than that which is necessary to make his conduct negligent.' " Marchetti at 96,
fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). "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." Thompson at 105.
{¶ 66} Thus, "[i]f the rules of a sport allow conduct intended to harm another
player, as they do in boxing or football, for example, it follows that those same rules
allow behavior that would otherwise give rise to liability for recklessness." Id.
Conversley, "any conduct which is characterized by the strong probability of harm that
recklessness entails, and which occurs outside the normal conduct and customs of the
No. 15AP-772 22
sport, may give rise to liability." Id. In assessing recklessness, courts must recognize the
"inverse relationship between duty and dangerousness," as the " 'quid pro quo of an
"assumed greater risk" is a diminished duty.' " Id., quoting Hansen v. Kynast, 38 Ohio
App.3d 58, 64 (5th Dist.1987).
{¶ 67} Appellants assert that the trial court "wrongly construed evidence regarding
Defendants' failure to warn Andrea Ochall about the track builder Brian McMillen's
design and rule prohibiting spectators in a light most favorable to [plaintiffs]."
(Appellant's brief, at 34.) Appellants assert that, construing the evidence in their favor,
there are genuine issues of material fact regarding whether McMillens and/or McNamers
disregarded Brian McMillen's rule and "knowingly failed to warn or inform Andrea Ochall
about the Brian McMillen's design and policy." Id. at 38.
{¶ 68} As noted above, Brian McMillen testified that he did not design the track to
account for spectators. (B. McMillen Dep. 169.) Brian explained that he "rarely" had
spectators at the track, but that when he did, he told them to "[s]tay up in the barn." Id. at
172, 175. However, Brian also did not enforce his no-spectator rule when he was at the
track. Brian noted that when the track was first built his "dad may come out or one of [his]
friends may come out and stand somewhere in that vicinity," of the paved area next to the
start/finish line, "and watch us turn a couple laps." Id. at 172. Brian stated that he had
never kicked any spectator of the paved area next to the start/finish line. Id. at 182-83.
{¶ 69} Sharon McMillen noted that Brian told her "[a] couple of years ago" that he
had a no-spectator rule when he was at the track, but she clarified that he never told her
that the track wasn't designed for spectators. (Feb. 10, 2015 Sharon McMillen Dep. at 104-
05. Sharon noted that, when she was out at the track, she would stand "[u]sually in the
grass out by the corner where the bench sits," explaining that's "just where we stand." Id.
at 100, 102. Sharon stated that she previously stood on the paved area next to the
start/finish line when Brian was also present at the track, and that he never told her to
move from that location. Id. at 130.
{¶ 70} Indeed, for adult spectators at the McMillens' go-kart track, there "was no
rule" regarding where they had to stand. Id. at 108-09. Sharon McMillen noted,
"[t]here's seven acres they can stand on. They can stand anywhere." (S. McMillen Depo.
108.) Sharon believed it was safe for people to stand on the paved area next to the
No. 15AP-772 23
start/finish line at the track, "[a]s long as they're watching what's going on." Id. at 102,
108.
{¶ 71} The McMillens, as the property owners who granted the McNamers
permission to bring the Ochalls upon their land, were the implied social hosts of the
Ochalls. See Estill v. Waltz, 10th Dist. No. 02AP-83, 2002-Ohio-5004, ¶ 32 (noting that,
to be classified as a social guest, "the evidence must show the host extended to the guest
an actual invitation, express or implied"). As social hosts, the McMillens owed their
guests the following duties: (1) to exercise ordinary care not to cause injury to their guests
by any act of the host or by any activities carried on by the host while the guest is on the
premises, and (2) to warn the guest of any condition of the premises which is known to
the host and which one of ordinary prudence and foresight in the position of the host
should reasonably consider dangerous, if the host has reason to believe that the guest
does not know and will not discover such dangerous condition. Scheibel v. Lipton, 156
Ohio St. 308 (1951), paragraph three of the syllabus. Accordingly, the McMillens had a
duty to warn the Ochalls of any dangerous condition on their premises which the
McMillens had reason to believe the Ochalls did not know about and could not discover.
{¶ 72} As the lack of barriers around the McMillens' track was readily apparent,
there was no dangerous condition about the track which the McMillens should have had
any reason to believe the Ochalls did not know about or could not discover. Indeed, Mrs.
Ochall saw go-karts driving off the track throughout the day, and admitted that she knew
that there "was no barrier in front of [her] * * * to protect [her] from getting hit by a car if
it left the track." (A. Ochall Dep. at 172-73.) Accordingly, the McMillens had no duty to
warn appellants about Brian McMillen's personal track rule. As such, viewing the
evidence in a light most favorable to the Ochalls, we are unable to find a genuine issue of
material fact regarding whether the McMillens intentionally failed to inform the Ochalls
about Brian's rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2
Restatement of the Law 2d, Section 500, at 587 (1965). As such, the McMillens were not
reckless by failing to inform appellants about Brian's rule.
{¶ 73} Regarding the McNamers, appellants assert that the McNamers were
reckless because they "knew of [Brian McMillen's] prohibition and failed to inform
guests." (Appellant's brief, at 36.) Liz McNamer stated that she could not recall if Brian
No. 15AP-772 24
McMillen ever told her about his no-spectator rule, noting that "[h]e could have told [her]
husband, but * * * [she didn't] recall." (L. McNamer Dep. at 66.)
{¶ 74} During Brian McMillen's deposition, counsel asked him if he ever told
"people, including the McNamers or anybody, that if you're not driving a go-kart, then
you better not be standing anywhere on this track, whether it's the access road, sitting
on that bench, anywhere on this asphalt period?" (B. McMillen Dep. at 175.) Brian
responded, stating:
Absolutely. Absolutely we've talked about that with the
McNamers, with Michael, their son, with my brother, myself,
my dad, we've all discussed the common sense rules of the
road that we're going to follow out here on this go-kart track.
Absolutely.
***
And, again, you know, it's not like we sat down and said, hey,
let's write a rule book for the track. I'm talking about general
guys hanging out in the garage, garage talk, hey, these are the
rules of the road we're going to follow. Again, we're not
putting together a commercial facility here. We're going –
we're putting together a little backyard toy here.
Id. at 175-76.
{¶ 75} When asked if he told the McNamers that he "didn't build this track for
there to be any bystanders. And that if you're not racing, no one is allowed to be standing
around watching people racing or in go-karts going around the track on any part of this
asphalt," Brian stated "[t]hat's just generally speaking what we have always gone with."
Id. at 177.
{¶ 76} Liz explained that everytime she had ever been to the track people would be
standing in the paved area adjacent to the start/finish line. (L. McNamer Dep. at 67.) Liz
also always stood in that area and believed it was safe to stand there as long as "you're
observing and – and paying attention and watching what's occurring." Id. at 56-57.
Porter similarly testified that whenever he had been to the track, people always stood on
the asphalt near the start/finish line. (J. Porter Dep. at 44.)
{¶ 77} To determine whether the McNamewrs were reckless in failing to inform
the Ochalls about Brian McMillen's personal track rule, we ask whether the McNamers
No. 15AP-772 25
intentionally failed to inform the Ochalls about Brian's rule when they had a duty to do so.
Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587
(1965). As noted, primary assumption of the risk " 'relieves a recreation provider from any
duty to eliminate the risks that are inherent in the activity.' " Lykins v. Fun Spot
Trampolines, 172 Ohio App. 3d 226, 2007-Ohio-1800, ¶ 34 (10th Dist.), quoting Whisman
v. Gator Invest. Properties, Inc., 149 Ohio App. 3d 225, 236 (1st Dist.2002).
{¶ 78} The parties do not direct us, and our independent research has failed to
produce, an Ohio case delineating the duty which a non-landowner, sponsor or organizer
of a free activity owes to the participants of the activity. Courts from other jurisdictions,
however, have held that "operators, sponsors and instructors in recereational activities
posing inherent risks of injury have no duty to eliminate those risks, but do owe
participants the duty not to unreasonably increase the risks of injury beyond those
inherent in the activity." Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148, 1162, 150 Cal. App. 3d
551 (2012).1 See also Saville v. Sierra College, 133 Cal. 4th 857, 872, 36 Cal. Rptr. 515
(2005) (noting that an "organizer of an activity is under a duty not to increase the risk of
injury inherent in the activity"); Estate of McNeil v. FreestyleMX.com, Inc., 177 F. Supp. 3d
1260 (S.D.Cal. 2016) (noting that the "organizer and promoter of the freestyle motocross
event" owed the plaintiff a limited duty of care, "breached only if they increased the risk
beyond that which is inherent to the activity itself"); Amezcua v. Los Angeles Harley-
Davidson, Inc., 200 Cal. 4th 217, 232, 234, 132 Cal. Rptr. 3d 567 (2011) (concluding that
the sponsor of the activity, had not "increased the inherent danger of riding in an
organized motorcycle ride," because "traffic slowing and other drivers not paying
1In Nalwa the plaintiff argued that sponsors of recreational activities should owe a greater duty to
participants. The court disagreed, holding as follows:
A rule imposing negligence duties on sponsors, organizers and operators
of recreational activities would encompass not only commercial companies
like defendant but also noncommercial organizations without extensive
budgets or paid staff. Such groups might not easily afford insurance to
cover injuries that are inherent risks of the activity; nor could they readily
collect large fees from participants to cover that cost. The primary
assumption of risk doctrine helps ensure that the threat of litigation and
liability does not cause such recreational activities to be abandoned or
fundamentally altered in an effort to eliminate or minimize inherent risks
of injury.
Nalwa at 1162.
No. 15AP-772 26
attention are inherent risks of riding in an organized motorcycle ride on public highways,"
and to close down the freeway in order to eliminate these risks "would alter the parade-
like nature of riding in a motorcycle procession on a public highway").
{¶ 79} Accordingly, as the organizer of the go-karting event that day, the
McNamers owed appellants the duty to not increase the risk of harm beyond the risks
inherent in the activity. Failing to inform appellants about Brian McMillen's rule did not
increase the risks inherent in the activity of go-karting, as it did not increase the risk that
go-karts would crash into one another, or that a driver would lose control of their go-kart
and deviate from the track. Accordingly, the McNamers did not have a duty to inform the
Ochalls about Brian McMillen's rule. Construing the evidence in appellants favor, we find
no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls
about Brian's rule when they had a duty to do so. Accordingly, appellants have failed to
demonstrate that the McNamers were reckless by failing to inform the Ochalls about
Brian McMillen's rule.
{¶ 80} Appellants next assert that the trial court "ignored factual issues regarding
Defendants' concealing the danger from Andrea Ochall by installing a bench to entice
her to congregate on the paved area next to the track not designed for spectators."
(Appellants' brief, at 38-39.) Mr. McMillen had placed a light, moveable, park style
bench on the back of the paved area adjoining the start/finish line. (S. McMillen dep. at
106.) Brian McMillen explained that the bench was for drivers to sit on following a race,
noting that, after a race, "you're tired, your back hurts, your legs are sore, you're
sweating. * * * A guy will sit on that bench and relax for a minute." (B. McMillen Dep. at
170.)
{¶ 81} Sharon McMillen agreed with counsel that someone might think "if there's
a bench around, that that may be a safe place to be because there's a bench where you
could sit." (S. McMillen Dep. at 106.) However, there is no evidence indicating that the
McMillens placed the bench there to "entice" people to congregate in that area. More
importantly, the bench did not conceal any danger from appellants. The bench did not
obscure appellants' ability to see the barrier-less nature of the track or the go-karts
driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on
the bench; rather, the evidence indicated that Mrs. Ochall "moved around quite a bit to
No. 15AP-772 27
take photographs." (J. Porter Dep. at 107.) Compare Kacsmarik v. Lakefront Lines
Arena, 8th Dist. No. 95981, 2011-Ohio-2553, ¶ 10, 13 (concluding that the "bench was
not the proximate cause of [plaintiff's] injuries," as the plaintiff was not "sitting on the
bench when she was injured" as she had "left the bench, [and] opened the ice rink
door").
{¶ 82} Construing the evidence in appellants' favor, we cannot find that the
McMillens knew or had reason to know of facts which would have lead them to realize
that placing a bench near their go-kart track created an unreasonable risk of physical
harm to another, or amounted to conduct substantially greater than negligent conduct.
Simply placing a bench by the track did not create an unreasonable risk of physical harm
to others, as the bench did not obsecure anyone's ability to appreciate the barrier-less
nature of the go-kart track.
{¶ 83} Appellants also state that Hawn concluded that Brian McMillen's 2010-11
alteration to the track, "enhanced the danger to spectators by creating greater risk go-
karts would lose control." (Acc. Reconstruction Report at 13-14.) (Appellant's brief, at
41.) Appellants assert that "[t]his remodeling and the enhanced risk were not known to
Andrea Ochall, whereas McMillens knew that they had made the track faster for go-karts
approaching the spectator area where they had placed the bench." (Appellant's brief, at
41.) Although appellants do not directly argue that the McMillens acted recklessly by
altering their track, we observe that the McMillens were not reckless in this regard, as
there is no evidence linking the 2010-11 alteration to an increased risk that a driver
would lose control of their go-kart.
{¶ 84} Hawn stated that the paved area next to the start/finish line, and "just
beyond the exit to the fastest curve of the track," would be a danger zone to persons afoot,
but only "if a driver should experience such a loss of control and deviate from the track."
(Acc. Reconstruction Report at 13.) Similarly, Hawn stated that the paved area next to the
track was dangerous for spectators, but only in the event that "a kart deviated from the
track, at speed, due to driver loss of control in the curve." Id. at 14. Thus, Hawn's opinion
that the paved area next to the start/finish line was unsafe for spectators was based on if a
driver should lose control of their go-kart. Hawn did not find that the elevation of the
curve, or that the straightaway itself, would cause a driver to lose control of their go-kart.
No. 15AP-772 28
Brian confirmed that the 2010-11 alteration did not affect a driver's "ability to change
speed or how they had to maneuver that part of the track." (B. McMillen Dep. at 149.)
{¶ 85} Furthermore, Hawn opined, and the record supports, that it was Doe's act of
"discarding an unwanted headband" which caused her to fail to "maintain steering control
[which] was a significant causative factor" of the accident. (Acc. Reconstruction Report,
14-15.) Thus, it was Doe's act of removing her hand from the steering wheel to remove her
headband from her face, and not the elevation of the high-banked curve, which caused the
accident.
{¶ 86} Appellants also state that "an easy, inexpensive precaution" for the
McMillens was to "relocate the spectator area to the inside of the track and raise the
elevation where their guests stood." (Appellant's brief, at 41.) Appellants do not directly
assert that the McMillens acted recklessly by failing to construct an elevated spectator
platform. Regardless, the McMillens were not reckless by failing to construct a spectator
platform, because they had no duty to do so. " 'There is no duty on the part of the host to
reconstruct or improve the premises for the purpose of making his house more
convenient or more safe for those accepting his hospitality, gratuitously extended. The
guest assumes the ordinary risks which attach to the premises.' " Scheibel at 315,
quoting 38 American Jurisprudence 778, Section 117.
{¶ 87} Appellants next assert that defendants concealed the "danger by failing to
educate themselves about safety or warn guests of known danger." (Appellant's brief, at
43.) Appellants observe that Sharon McMillen instructed drivers, "don't be bumping into
anybody," but assert that she was reckless because she did not know how fast the go-karts
traveled, wasn't aware of the go-kart's maintenance schedule, and did not follow the go-
kart manufacturer's height or age restrictions. Id. at 44-45. Appellants similarly assert
that Liz McNamer was reckless because she did not know the make or model of the go-
karts, did not know the go-kart manufacturer's age or height restrictions, and did not
know how fast the go-karts traveled. Id. at 45-46.
{¶ 88} Appellants, however, fail to explain what any of these facts have to do with
the accident. The accident did not result from unsafe go-kart operation; it occurred
because Doe's headband slipped into her eyes. See Thompson v. Park River Corp., 161
Ohio App. 3d 502, 2005-Ohio-2855 (1st Dist.), ¶ 43 (observing that, although the plaintiffs
No. 15AP-772 29
"presented evidence that the handrail was deteriorating and that a 1 to 50 instructor-to-
student ratio was too high to be considered safe, they presented no evidence that either of
these factors played even the slightest role in causing Eric's injury"). Appellants fail to
establish a genuine issue of material fact regarding whether the defendants intentionally
failed to educate themselves about go-kart safety when they had a duty to do so, or that
they intentionally failed to warn appellants about the dangers of go-karting when they had
a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section
500, at 587 (1965). Accordingly, the record fails to demonstrate that any of the defendants
acted recklessly by failing to educate themselves about safe go-kart operation or by failing
to warn guests of the dangers of go-karting.
{¶ 89} Appellants lastly assert that the trial court "construed evidence regarding
[Doe's] driving and supervision of her by Liz McNamer and James Porter in a light most
favorable to Defendants." (Appellant's brief, at 48.) Appellants note that, earlier in the
day before the accident, Doe drove off the track, and that "[o]ther children came partially
off the track as well." Id. at 48. McNamer went and spoke to Doe after she drove off the
track, and "cautioned her and advised her to be careful." (L. McNamer Dep. at 129.)
McNamer explained that "all the children had went off" the track that day, but that she
only spoke to Doe because she was Doe's "grandparent." Id. at 131. McNamer noted that,
"[n]o one else said anything to me that anyone was driving reckless or that [Doe] wasn't in
control." Id. Porter testified that Doe's driving that day was "[t]ypical for past driving and
typical of the driving of all of the other children who were racing that day." (J. Porter Dep.
at 105.) Porter stated that he never told his daughter, or anyone, to slow down. Id. at 152.
{¶ 90} Mrs. Ochall testified that Doe "had been asked numerous times to slow
down and watch her speed. * * * She was warned by her father, by Liz." (A. Ochall Dep. at
27.) Mrs. Ochall characterized Doe's driving as "out of control," because she had "gotten
off the track" and "was just driving aggressively." Id. at 45-46. Mr. Ochall stated that Doe
was "driving aggressively," by "[p]assing other cars." (R. Ochall Dep. at 53.) However,
Mrs. Ochall explained that she took no precautions for her own personal safety in light of
Doe's allegedly aggressive driving, because she "felt that [Doe's] grandmother and father
addressed the behavior with [Doe]." (A. Ochall Dep. at 48.)
No. 15AP-772 30
{¶ 91} Accordingly, construing the evidence in appellants' favor, Porter and
McNamer watched the children driving, all the children drove off the track that day, and
McNamer and Porter cautioned Doe about her driving. Although Mrs. Ochall
characterized Doe's driving as aggressive, she felt that McNamer and Porter adequately
addressed Doe's behavior by speaking to her. Appellants fail to demonstrate how Porter or
McNamer engaged in conduct which was substantially greater than negligent conduct by
keeping an eye on Doe and cautioning her.
{¶ 92} Appellants assert that the trial court "ignored the Ochalls' testimony that
[Doe] was driving aggressively." (Appellant's brief, at 50.) The trial court, however, did
not ignore this evidence. The court noted appellants' contention that Doe was driving
aggressively by "passing other karts and veering off the track." (Decision & Entry at 20.)
The trial court observed that Mr. Ochall admitted that "he passed other karts while
driving on the track that day," and that Doe "was not the only child to veer off the track
that day, as one of [apppellants'] children also veered off the track while driving." Id. at
21. The court concluded that there was no evidence that Doe's "actions prior to the
accident amounted to aggressive driving." Id.
{¶ 93} Indeed, appellants fail to make any connection between Doe's allegedly
aggressive driving and the accident. The record indicates only that it was an unfortunate
slip of Doe's headband, and Doe's attendant need to remove her hand from the wheel in
order to remove the headband from her face, which caused the accident. There is nothing
in the record indicating that Doe's alleged aggressive driving caused the accident. See
Thompson v. Park River Corp., 161 Ohio App. 3d 502, 2005-Ohio-2855, ¶ 43 (1st Dist.).
{¶ 94} Finally, Doe's act of removing her headband from her line of vision did not
amount to reckless conduct. Doe did not remove the headband with any conscious choice
of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the
track, and strike Mrs. Ochall. See West v. Devendra, 7th Dist. No. 11 BE 35, 2012-Ohio-
6092, ¶ 37, quoting 2 Restatement of the Law 2d, Torts, Section 500, Comment g (1965)
(noting that "reckless misconduct requires a conscious choice of a course of action, either
with knowledge of the serious danger to others involved in it or with knowledge of facts
which would disclose this danger to any reasonable man").
No. 15AP-772 31
{¶ 95} Because appellants fail to establish any genuine issues of material fact
regarding whether the defendants engaged in reckless misconduct, appellants' second
assignment of error is overruled.
VI. CONCLUSION
{¶ 96} The incident at the McMillens' go-kart track which caused Mrs. Ochall's
injury was, unquestionably, a terrible and tragic accident. However, every tragic accident
does not result in tort liability. Because Mrs. Ochall primarily assumed the risk of injury
when she stood 10 to 12 feet away from the McMillens' go-kart track, and no defendant
engaged in reckless or intentional misconduct, the trial court properly granted the
defendants' motions for summary judgment. Having overruled appellants' first and
second assignments of error, we affirm the judgment of the Franklin County Court of
Common Pleas. As we have overruled the appellants' assignments of error, the McMillens
withdraw their assignment of error on cross-appeal.
Judgment affirmed.
SADLER, J., concurs.
DORRIAN, P.J., concurs in and part dissents in part.
DORRIAN, P.J., concurring in part and dissenting in part
{¶ 97} I respectfully concur in part and dissent in part.
{¶ 98} I concur with the majority that primary assumption of the risk requires an
examination of the recreational activity or sport itself. For this reason, and pursuant to
Gentry v. Craycraft, 101 Ohio St. 3d 141, 2004-Ohio-379, ¶ 10, I also agree with the
majority that spectators and participants are to be treated the same and appellants'
arguments regarding the "risks to spectators" improperly attempt to shift the focus of the
analysis away from the risks inherent in the activity. (Lead opinion at ¶ 48.) Consistent
with this, I concur with the majority and am not persuaded by the Third District Court of
Appeals' decision in Reed v. Cassidy, 3d Dist. No. 2-01-36 (Apr. 10, 2002).
{¶ 99} I concur with the majority that the trial court erred when it conflated the
duty analysis under primary assumption of the risk with the social host duty of care under
premises liability.
{¶ 100} I concur with the majority that the trial court did not err when it
observed that "[a] risk is found to be ordinary or inherent to the recreational activity when
No. 15AP-772 32
it arises from conduct that is 'a foreseeable, customary part['] of the activity." (Emphasis
added.) (July 31, 2015 Decision at 4, quoting Gentry at ¶ 10.) (Lead opinion at ¶ 43.)
However, I would find further, notwithstanding the trial court's correct legal statement,
that the trial court erred by concluding that "foreseeable risks are inherent risks of
recreational activities" and in not conducting the additional analysis of whether the risk is
ordinary or customary to the game. (July 31, 2015 Decision at 7.) Given this court's three
part test in Santho v. Boy Scouts of Am., 168 Ohio App. 3d 27, 2006-Ohio-3656 (10th
Dist.), which requires that in order to be considered inherent, a risk be both ordinary and
foreseeable, I would interpret the term "customary" in this context as "ordinary." To
interpret "customary" as "common" or "foreseeable" would merge the doctrines of
primary and implied assumption of the risk.
{¶ 101} I concur with the majority that the Supreme Court of Ohio has held
that " '[t]o be covered under the * * * doctrine, the risk must be one that is so inherent to
the sport or activity that it cannot be eliminated.' " Horvath v. Ish, 134 Ohio St. 3d 48,
2012-Ohio-5333, ¶ 19, quoting Knoesky v. Wood Cty. Agricultural Soc., 164 Ohio App. 3d
839, 2005-Ohio-7009, ¶ 19 (6th Dist.). (Lead opinion at ¶ 45.) I would note further that
contrary to appellees' suggestion that courts do not typically conduct a detailed analysis of
whether a risk cannot be eliminated, a survey of Tenth District case law reveals that this
court adheres to this requirement. "If the activity is one that is inherently dangerous and
from which the risks cannot be eliminated, then a finding of primary assumption of risk is
appropriate." Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307 (June 12,
1997) (finding the plaintiff's "injuries occurred as a result of a commonly known danger
ordinary to the sport of thoroughbred horse racing"). See also Morgan v. Kent State
Univ., 10th Dist. No. 15AP-685, 2016-Ohio-3303, ¶ 13, 15, 25 (noting that, "by its very
nature, karate, as a martial art, is an inherently dangerous activity from which the risk of
harm cannot be eliminated"); Crace v. Kent State Univ., 185 Ohio App. 3d 534, 2009-
Ohio-6898, ¶ 35 (10th Dist.) (noting that in cheerleading, "the risk [of injury] is forever
present and may only be reduced to manageable levels. Manageable risks are nevertheless
risks. It necessarily follows that the risk of injury is incapable of being completely
eliminated"); Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No.
11AP-405, 2012-Ohio-453, ¶ 16 (affirming the trial court's finding "that hiking is a
No. 15AP-772 33
recreational activity to which the doctrine [of primary assumption of the risk] applies, and
hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated,
even more so with hiking at night"); Main v. Gym X-Treme, 10th Dist. No. 11AP-643,
2012-Ohio-1315, ¶ 9, 12-13 (noting "[t]he rationale behind the doctrine [of primary
assumption of the risk] is that certain risks are so intrinsic in some activities that the risk
of injury is unavoidable," and finding that "tripping, slipping, and falling are all normal
inherent risks" with " 'play time and gymnastic activities' "); Schnetz v. Ohio Dept. of
Rehab. & Corr., 195 Ohio App. 3d 207, 2011-Ohio-3927, ¶ 30, 49 (10th Dist.) (noting that
"[i]f that activity is one that is inherently dangerous and from which the risks cannot be
eliminated, a finding of primary assumption of the risk is appropriate" and finding that
"[i]njury resulting from colliding with another player on the field of play, even
accidentally, is an ordinary danger of the sport of football").
{¶ 102} I concur with the majority that to determine the risks that are so
inherent in an activity that they cannot be eliminated, a court must " 'focus[] exclusively
upon the activity itself.' " (Lead opinion at ¶ 45, quoting Schnetz at ¶ 28.) I would clarify
further that the contention that a risk must be one that is so inherent to the sport or
activity that it cannot be eliminated is appropriately considered in the context of the
ordinary or customary analysis. I would also suggest that in determining the same, a
court should consider the goal of the primary assumption of the risk doctrine as discussed
by the majority: " 'to strike a balance between encouraging vigorous and free participation
in recreational or sports activities, while ensuring the safety of the players.' " (Lead
opinion at ¶ 38, quoting Marchetti v. Kalish, 53 Ohio St. 3d 95, 99 (1990), and Ferrari v.
Grand Canyon Dories, 32 Cal. App. 4th 248, 253 (3d Dist.1995) (observing that the
"overriding consideration in the application of primary assumption of the risk is to avoid
imposing a duty which might chill vigorous participation in the implicated activity and
thereby alter its fundamental nature"); Yancey v. Superior Court, 28 Cal. App. 4th 558,
565 (5th Dist.1994) (noting that "[d]uty is constricted in such settings because the activity
involves inherent risks which cannot be eliminated without destroying the sport itself").)
{¶ 103} Finally, I concur with the majority's ultimate conclusion that the trial
court erred in its primary assumption of the risk analysis because it failed to ascertain the
No. 15AP-772 34
risks inherent in the activity of go-karting. I dissent, however, with the majority's
consideration and determination, in the first instance, of the same.
{¶ 104} Because the Supreme Court in Gallagher v. Cleveland Browns
Football Co., 74 Ohio St. 3d 427, 432 (1996), instructs that courts must proceed with
caution when contemplating whether primary assumption of the risk completely bars a
plaintiff's recovery and because of the great impact a ruling in favor of a defendant would
have, I would not determine the issue in the first instance on appeal. Rather, I would
remand this case to the trial court with instructions to consider whether the risk of a go-
kart veering off the track and striking objects/persons in its path meets the criteria that
"(1) the danger is ordinary to the game; (2) it is common knowledge that the danger
exists; and (3) the injury occurs as a result of the danger during the course of the game."
(Emphasis added.) Santho at ¶ 12. In considering whether such risk is ordinary to the
game, I would instruct the court to (1) focus on the activity of go-karting itself; and
(2) consider whether such risk can be eliminated without inhibiting vigorous and free
participation, fundamentally changing or destroying the activity of go-karting. Such
consideration necessarily involves an examination of the nature of the activity, the
purpose or goals of the activity, and the rules or customs of the activity, where applicable.
{¶ 105} Finally, I dissent from the majority's consideration of the second
assignment of error. Because I would reverse and remand this case for the trial court to
determine, in the first instance, whether primary assumption of the risk applies, I would
find to be moot the second assignment of error regarding whether the trial court erred in
holding appellees did not act recklessly.2
2I would note that appellants' argument, pursuant to Goffe v. Mower, 2d Dist. No. 98-CA-49 (Feb. 5, 1999),
that primary assumption of the risk cannot apply because appellees "enhanced" the risk by defective design
or operation, would be appropriately addressed when considering whether the exception of recklessness or
willfull or wanton conduct applies to application of primary assumption of the risk.