Deutsch v. Birk

937 N.E.2d 638, 189 Ohio App. 3d 129
CourtOhio Court of Appeals
DecidedAugust 2, 2010
DocketNo. CA2010-01-003
StatusPublished
Cited by8 cases

This text of 937 N.E.2d 638 (Deutsch v. Birk) 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
Deutsch v. Birk, 937 N.E.2d 638, 189 Ohio App. 3d 129 (Ohio Ct. App. 2010).

Opinion

Bressler, Judge.

{¶ 1} Plaintiff-appellant, Todd Deutsch, appeals a decision of the Clermont County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Michaela Birk.1

{¶ 2} On June 10, 2007, Suzanne Birk was rollerblading on the Little Miami "Bike Trail, and her minor daughter, appellee, Michaela, was riding her bicycle. Appellant was also riding his bicycle on the trail that day. At one point, appellee noticed that her mother had stopped at a lemonade stand near the path. Appellee stopped her bicycle, got off of it, and began to cross the path. When appellee did so, she pushed the bicycle into appellant’s path, causing appellant to fall from his bicycle and sustain serious injuries.

{¶ 3} Appellant filed causes of actions against both appellee and appellee’s mother, seeking damages for his injuries. However, appellant voluntarily dismissed his cause of action against appellee’s mother. Appellee moved for summary judgment, and the trial court granted her motion, finding that she and appellant were both engaged in a recreational activity and that appellant’s claim of negligence was precluded as a matter of law. Appellant appeals the trial court’s decision, raising the following assignment of error.

{¶ 4} “The trial court erred to the prejudice of the plaintiff-appellant in granting the motion of defendant, Michaela Birk, for summary judgment.”

{¶ 5} In his assignment of error, appellant argues that appellee’s negligence was the proximate cause of his injuries. Appellant claims that bicyclists are required to comply with R.C. 4511.01 through 4511.99 and R.C. 4513.01 through 4513.37. Appellant also argues that any traffic law that applies to vehicles also applies to cyclists while riding on a roadway or path set aside for the exclusive use of bicycles.

{¶ 6} Summary judgment is a procedural device used to end litigation when there are no issues in a case requiring a trial. Bergman Group v. OSI Dev., Ltd., Butler App. No. CA2009-12-080, 2010-Ohio-3259, 2010 WL 2723150, ¶ 13. Summary judgment is proper when (1) there are no genuine issues of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) [132]*132reasonable minds can only come to a conclusion adverse to the nonmoving party, construing the evidence most strongly in that party’s favor. Civ.R. 56(C).

{¶ 7} A trial court’s decision on summary judgment is reviewed de novo. Id.; Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. In applying the de novo standard, a reviewing court is required to “ ‘us[e] the same standard that the trial court should have used, and * * * examine the evidence to determine whether as a matter of law no genuine issues exist for trial.’ ” Bravard v. Curran, 155 Ohio App.3d 713, 2004-0hio-181, 803 N.E.2d 846, ¶ 9, quoting Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 383, 701 N.E.2d 1023. In reviewing a trial court’s decision granting or denying a motion for summary judgment, an appellate court must review the court’s decision independently, without any deference to the court’s judgment. Bravard, citing Burgess v. Tackas (1998), 125 Ohio App.3d 294, 295, 708 N.E.2d 285.

{¶ 8} Negligence claims require the showing of a duty owed, a breach of that duty, and an injury proximately caused by the breach. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-0hio-4210, 773 N.E.2d 1018, ¶ 22. “The existence of a duty is fundamental to establishing actionable negligence, without which there is no legal liability.” Adelman v. Timman (1997), 117 Ohio App.3d 544, 549, 690 N.E.2d 1332. Determination of whether a duty exists is a question of law for the court to decide. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265.

{¶ 9} Appellant’s reliance on the applicability of R.C. 4511.01 through 4511.99 and R.C. 4513.01 through 4513.37 is misplaced. According to R.C. 4511.52(A), “Sections 4511.01 to 4511.78, 4511.99, and 4513.01 to 4513.37 of the Revised Code that are applicable to bicycles apply whenever a bicycle is operated upon any highway or upon any path set aside for the exclusive use of bicycles.” It is undisputed that the pathways that make up the Little Miami Bike Trail are used for various activities, including biking, walking, jogging, skateboarding, rollerblading, and horseback riding. Accordingly, we decline to extend the applicability of these statutes to this case.

{¶ 10} Next, appellant argues that the trial court incorrectly found that appellee is not liable because both parties were engaged in a recreational activity when the incident occurred. Further, appellant argues that recreational-activity immunity for negligence is limited to participants who are jointly engaged in a common recreational activity.

{¶ 11} In Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus, the Ohio Supreme Court held, “Where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions [133]*133were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.” “This rule has its genesis in the doctrine of primary-assumption of the risk and is based on the rationale that a participant to a sporting event or recreational activity accepts the risks associated with the sport or activity.” Pope v. Willey, Clermont App. No. CA2004-10-077, 2005-Ohio-4744, 2005 WL 2179317, ¶ 8, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116, ¶ 10-11.

{¶ 12} The limitation of liability for negligence during recreational activities is based on the notion that some risks are so inherent in an activity that the risks cannot be eliminated. Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 431, 659 N.E.2d 1232; Whisman v. Gator Invest. Properties, Inc. (Apr. 12, 2002), 149 Ohio App.3d 225, 776 N.E.2d 1126. By choosing to participate in an activity, the participant implicitly accepts those risks. Gentry at ¶ 1; Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 37, 518 N.E.2d 1226; Cave v. Burt, Ross App. No. 03CA2730, 2004-Ohio-3442, 2004 WL 1465730. The types of risks associated with the activity are those that are foreseeable and customary risks of the sport or recreational activity. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104-106, 559 N.E.2d 705.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Baldwin v. Church of God of Trenton
2024 Ohio 1726 (Ohio Court of Appeals, 2024)
Wolf v. Kaplan
2021 Ohio 2447 (Ohio Court of Appeals, 2021)
McBride v. Butler
2018 Ohio 1251 (Ohio Court of Appeals, 2018)
Ochall v. McNamer
2016 Ohio 8493 (Ohio Court of Appeals, 2016)
Estate of Smith v. Western Brown Local School Dist.
2015 Ohio 154 (Ohio Court of Appeals, 2015)
Tallarigo v. Dryden
2013 Ohio 5496 (Ohio Court of Appeals, 2013)
Tarantino v. Cavaliers Operating Co., L.L.C.
2012 Ohio 2636 (Ohio Court of Appeals, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
937 N.E.2d 638, 189 Ohio App. 3d 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deutsch-v-birk-ohioctapp-2010.