Crace v. Kent State University

924 N.E.2d 906, 185 Ohio App. 3d 534
CourtOhio Court of Appeals
DecidedDecember 29, 2009
DocketNo. 08AP-1080
StatusPublished
Cited by25 cases

This text of 924 N.E.2d 906 (Crace v. Kent State University) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crace v. Kent State University, 924 N.E.2d 906, 185 Ohio App. 3d 534 (Ohio Ct. App. 2009).

Opinion

Connor, Judge.

{¶ 1} Appellants, Angela, Robert, and Rhonda Crace, appeal the decision of the Ohio Court of Claims granting judgment to appellee, Kent State University (“KSU”), after a bench trial on the bifurcated issue of KSU’s liability. The trial court granted judgment to KSU after finding that the defense of primary assumption of the risk barred appellants’ negligence and loss-of-consortium claims. For the reasons that follow, we affirm the decision of the trial court.

{¶ 2} On February 12, 2001, Angela was a junior at KSU and was a member and captain of KSU’s varsity cheerleading team. During the team’s practice on that date, the KSU coach, Lenee Buchman, assigned participants to positions in a maneuver known as the Big K.

{¶ 3} The Big K was essentially a human pyramid that consisted of a base, a middle layer/base, and flyers. Additionally, spotters were positioned on the ground to catch the flyers when they came down. The pyramid was two and one-half people high and had the highest degree of difficulty permitted by the NCAA.

{¶ 4} Angela and several other members of the KSU team had performed the Big K successfully in the previous season. However, several other members of the KSU team had not performed nor even seen the Big K before the team attempted it on February 12, 2001. Indeed, KSU’s team included cheerleaders with varying levels of experience and expertise.

{¶ 5} On February 12, 2001, Buchman assigned Angela to the position of a flyer. The first two attempts at the mount failed, which resulted in Angela falling from around 15 feet in the air. After each of these two failed attempts, Angela’s front spotter caught her when she fell. Before the third attempt, Buchman substituted Detrick Cobbin as Angela’s rear spotter. Cobbin had neither seen nor participated in the Big K prior to February 12, 2001.

{¶ 6} According to Cobbin, before the third attempt, he told Buchman that he was uncomfortable performing as a spotter in the Big K. According to Buchman, this statement never occurred.1

{¶ 7} It is undisputed, however, that Cobbin participated in the third attempt, which again failed. As a result, Angela again fell from around 15 feet in the air. When she came down, Cobbin failed to catch her. Instead, he panicked, shielded [538]*538his eyes, and moved out of the way. As a result, Angela’s fall was unbroken and caused catastrophic injuries, including immediate paraplegia.

{¶ 8} Accordingly, appellants filed this suit against KSU alleging claims of negligence and loss of consortium based upon Buchman’s conduct. The bifurcated issue of KSU’s liability proceeded to a bench trial on July 24, 2006. On November 12, 2008, the trial court issued a decision granting judgment to KSU. Appellants timely appealed and raise the following assignments of error:

1. The trial court erred in granting judgment to the appellee as a matter of law with regard to [the] application of the doctrine of primary assumption of [the] risk.
2. The trial court erred in granting judgment to the appellee with regard to its application of the standard of reckless or intentional conduct being necessary with regard to this cause of action.
3. The trial court’s decision was contrary [to] and in disregard of the manifest weight of the evidence^] and [the trial court] erred in granting judgment for the appellee, by [determining] that the appellant faded to prove negligence and/or reckless conduct, by the appellee’s agent.

{¶ 9} We will initially address appellants’ first and second assignments of error, which relate to the trial court’s application of the primary-assumption-of-the-risk defense to the circumstances of this matter. The issues therefore regard whether Angela assumed the risk of injury by participating in varsity cheerleading at KSU.

{¶ 10} It is well settled that Ohio law recognizes three separate types of the defense of assumption of the risk: express, primary, and implied. Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008-Ohio-1421, 2008 WL 802722, ¶ 6, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116, ¶ 11; see also Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 431, 659 N.E.2d 1232.

{¶ 11} Express assumption of the risk applies when parties expressly agree to release liability. Ballinger at ¶ 7; see also Zigler v. Avco Corp., 165 Ohio App.3d 319, 2005-Ohio-6130, 846 N.E.2d 547, ¶ 18, citing Prosser & Keeton, The Law of Torts (5th Ed.1984), 496, Section 68. Although Angela and her parents signed an informed-consent form before each KSU cheerleading season, these forms did not contain any exculpatory language releasing KSU from liability. Indeed, KSU makes no legitimate argument to the contrary. As a result, express assumption of the risk does not apply to the instant matter. Instead, the issue is whether the trial court erred by applying primary assumption of the risk.

[539]*539{¶ 12} Ohio courts routinely apply primary assumption of the risk to cases involving sporting events and recreational activities. Id. at ¶ 8, citing Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 6 OBR 170, 451 N.E.2d 780. The applicability of the primary-assumption-of-the-risk defense presents an issue of law for the court to decide. Gallagher at 435, 659 N.E.2d 1232. We therefore review the trial court’s decision to apply the defense de novo. Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1996), 76 Ohio St.3d 521, 523, 668 N.E.2d 889, citing Indus. Energy Consumers of Ohio Power Co. v. Pub. Util. Comm. (1994), 68 Ohio St.3d 559, 563, 629 N.E.2d 423.

{¶ 13} Under primary assumption of the risk, a person assumes the inherent risks of the recreational activity and cannot recover for injuries unless another person acted recklessly or intentionally. Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, 857 N.E.2d 1255, ¶ 12; see also Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus. The rationale is that certain risks are so inherent in some activities that the risk of injury is unavoidable. Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 37, 518 N.E.2d 1226; see also Aber v. Zurz, 175 Ohio App.3d 385, 2008-Ohio-778, 887 N.E.2d 381, ¶ 10, quoting Lykins v. Fun Spot Trampolines, 172 Ohio App.3d 226, 2007-Ohio-1800, 874 N.E.2d 811, ¶ 34.

{¶ 14} The Supreme Court of Ohio has further described the underlying rationale. See Thompson v. McNeill (1990), 53 Ohio St.3d 102, 559 N.E.2d 705:

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Bluebook (online)
924 N.E.2d 906, 185 Ohio App. 3d 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crace-v-kent-state-university-ohioctapp-2009.