Horvath v. Ish

2011 Ohio 2239, 954 N.E.2d 196, 194 Ohio App. 3d 8
CourtOhio Court of Appeals
DecidedMay 11, 2011
Docket25442
StatusPublished
Cited by4 cases

This text of 2011 Ohio 2239 (Horvath v. Ish) 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
Horvath v. Ish, 2011 Ohio 2239, 954 N.E.2d 196, 194 Ohio App. 3d 8 (Ohio Ct. App. 2011).

Opinions

Belfance, Judge.

{¶ 1} Appellants, Angel and Eugene Horvath, appeal the summary judgment ruling granted in favor of appellees, David Ish and his parents, Annette and David Ish, by the Summit County Court of Common Pleas. We reverse.

BACKGROUND

{¶ 2} On March 6, 2007, Angel Horvath was skiing at Boston Mills Ski Resort with her husband, Eugene Horvath. Fourteen-year-old David Ish was also at Boston Mills, snowboarding with his brother and cousins. While Angel was skiing down one of the hills at the resort, David cut across the hill from the snowboarding area. In doing so, he collided with Angel from behind. Angel suffered serious, permanent injuries as a result of the collision.

{¶ 3} The Horvaths filed a complaint against David and his parents, alleging that David had acted negligently, carelessly, recklessly, willfully, and wantonly, causing him to collide with Angel. The Horvaths also named Boston Mills Ski Resort, Inc., and Peak Resorts, Inc., in a subsequent amended complaint. Boston Mills and Peak Resorts were dismissed after the trial court granted their motion for judgment on the pleadings.

[10]*10{¶ 4} On April 19, 2010, the Ishes filed a motion for summary judgment. In support of the motion, the Ishes argued that Angel had assumed the risk of colliding with another skier, that the danger of such a collision was open and obvious, and that the Revised Code does not create a statutory duty between skiers. The Horvaths opposed the motion, but the trial court granted the motion on May 18, 2010.

{¶ 5} The Horvaths have appealed the trial court’s decision, assigning two errors for our review.

STANDARD OF REVIEW

{¶ 6} This court reviews a trial court’s ruling on a motion for summary judgment de novo and applies the same standard as the trial court. Chuparkoff v. Fanners Ins. of Columbus, Inc., 9th Dist. No. 22712, 2006-Ohio-3281, 2006 WL 1751219, at ¶ 12. Pursuant to Civ.R. 56(C), summary judgment is appropriate when “(1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.” State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448, 663 N.E.2d 639.

{¶ 7} The moving party has the burden of demonstrating that no genuine issues of material fact exist. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. The burden then shifts to the nonmoving party to provide evidence showing that a genuine issue of material fact does exist. Id. at 293. Pursuant to Civ.R. 56(E), the nonmoving party may not simply rest on the allegations of its pleadings; it must provide the court with evidentiary material, such as affidavits, written admissions, and/or answers to interrogatories, to demonstrate a genuine dispute of fact to be tried. See also Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735, 600 N.E.2d 791.

ASSIGNMENTS OF ERROR

Assignment of Error I

The Trial Court erred in granting summary judgment in favor of Appellees Ish when it concluded that Revised Code Chapter 4169 did not apply to causes of action between skiers.

{¶ 8} In their first assignment of error, the Horvaths argue that R.C. 4169.08(C) imposes duties upon skiers owed to other skiers and that David violated these duties, thereby making him liable to the Horvaths for the injuries [11]*11caused to Angel. The Ishes counter that the statute does not impose duties between skiers; rather, the duties described in R.C. 4169.08 are owed by a skier to a ski-area operator.

{¶ 9} We begin by noting that even though David was snowboarding, he fits within the definition of “skier” provided by the statute. See R.C. 4169.01(A) (“ ‘Skier’ means any person who is using the facilities of a ski area * * * for the purpose of skiing, which includes, without limitation, sliding or jumping on snow or ice on skis, a snowboard, sled, tube, snowbike, toboggan, or any other device”).

{¶ 10} R.C. 4169.08 is entitled “Skiing inherently hazardous; limitation of liability; duties of operator” and appears in the R.C. Chapter governing skiing safety. Subsection (A) recognizes that siding is an inherently dangerous activity and that a skier assumes the risk and liability of injury and damage that arises from the inherent dangers of skiing. R.C. 4169.08(A). The legislature has included a nonexhaustive list of some of the inherent risks associated with skiing; however, collisions with other skiers is not one of the risks specifically enumerated. See id. Further, R.C. 4169.08(A) relieves a ski-area operator from liability so long as the ski-area operator complies with applicable statutes. R.C. 4169.08(B) outlines the “legal responsibilities of a ski area operator to a skier.” R.C. 4169.08(B). Finally, R.C. 4169.08(C) lists a skier’s responsibilities:

A skier shall have the following responsibilities:

(1) To know the range of the skier’s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier’s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;
(2) To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall.

In addition, R.C. 4169.09 states that “[a] * * * skier is liable for injury, death, or loss to person or property caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter.”

{¶ 11} No Ohio courts have interpreted the above statutes as creating a statutory cause of action between skiers. Nor have any courts in this state held that the responsibilities enumerated in R.C. 4169.08(C) are owed to ski-area operators but not to skiers, as the Ishes have suggested. Thus, the interpretation of this statute is a matter of first impression. If the language of the statute is unambiguous, we must apply the clear meaning of the words used according to [12]*12the rules of grammar and common usage. Roxane Laboratories, Inc. v. Tracy (1996), 75 Ohio St.3d 125, 127, 661 N.E.2d 1011; R.C. 1.42. If, however, the language is ambiguous, susceptible of more than one reasonable interpretation, we may interpret the meaning of the statute. State v. Myers, 9th Dist. Nos. 3260-M and 3261-M, 2002-Ohio-3195, 2002 WL 1376036, at ¶ 15.

{¶ 12} Here, the trial court found that based on the language of the statute, R.C. 4169.08 was inapplicable to collisions between skiers. In examining the plain language of the statute, we find that the trial court erred in its determination.

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Related

Horvath v. Ish
2012 Ohio 5333 (Ohio Supreme Court, 2012)
Horvath v. Ish
2011 Ohio 2239 (Ohio Court of Appeals, 2011)

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Bluebook (online)
2011 Ohio 2239, 954 N.E.2d 196, 194 Ohio App. 3d 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horvath-v-ish-ohioctapp-2011.