Kelly v. Roscoe

925 N.E.2d 1006, 185 Ohio App. 3d 780
CourtOhio Court of Appeals
DecidedAugust 14, 2009
DocketNo. 08 MA 176
StatusPublished
Cited by2 cases

This text of 925 N.E.2d 1006 (Kelly v. Roscoe) 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
Kelly v. Roscoe, 925 N.E.2d 1006, 185 Ohio App. 3d 780 (Ohio Ct. App. 2009).

Opinion

Waite, Judge.

{¶ 1} Appellant, Kaitlin Kelly, a minor, by and through her mother and next friend, Cindy Clark, appeals the summary judgment entered against her and in favor of appellees, Scott and Dawn Roscoe, by the Mahoning County Court of Common Pleas in this negligence action. Appellant broke her leg while playing on a trampoline with two other children at a Fourth of July party hosted by appellees. Because the record does not contain any evidence to support the [782]*782conclusion that appellant’s injuries were the result of anything other than the ordinary risks associated with using a trampoline with other children, the judgment of the trial court is affirmed.

Facts

{¶ 2} Several depositions are on file in this case and provide a fairly replete factual record. On July 4, 2007, appellant, who was seven years old at the time, and her parents, Cindy Clark and Donald Kelly, were guests at a Fourth of July party hosted by appellees. Appellees have a trampoline, which Kelly described as “older-style,” in their back yard. When asked to explain what he meant by the characterization, Kelly said, “When they first came out with the trampoline, it was more of a hard bounce to it. The netting wasn’t as flexible as they do them now. It was like more of a — like a harder bounce, like tighter. It was tight.” Appellees placed a sliding board with a ladder next to the trampoline so that the ladder portion of the slide could be used to climb onto the trampoline.

{¶ 3} Appellant admitted that her parents told her that she was not permitted to use the trampoline that day and that they had told her on prior occasions that she was not permitted to use it. Kelly said that he did not want appellant on the trampoline because it had no net around it and because he did not like her to use it at the same time as the older children. Nevertheless, appellant used the trampoline three times that day.

{¶ 4} The first and second time she was on the trampoline with Nicky and Michael. Clark saw appellant on the trampoline the second time and insisted that she get off. Clark then explained to Michael that he was too big to be on the trampoline with “the little ones.” The third time, when appellant’s injury occurred, she was on the trampoline with Nicky and Alyssa. According to Kelly, Nicky is appellant’s age and Alyssa is a little older.

{¶ 5} Despite her parents’ admonitions that day and in the past, appellant approached them separately to ask permission to use the trampoline prior to using it the second and third time. Each time, both of her parents said “no.” She admitted that she first ascertained that her parents were not around before getting on the trampoline the third time. Kelly and Clark conceded that they were not watching her when she was on the trampoline with Nicky and Alyssa.

{¶ 6} Appellant was on the trampoline for a short time when, as she described it, Alyssa “bounced [her] up.” Appellant landed on her left leg, which emitted an audible crack. Appellant provided the only testimony regarding the circumstances surrounding her injury.

{¶ 7} After the accident, Clark testified, she asked Nicky and Alyssa to describe how appellant had been injured, but “[t]hey both looked white as a ghost” and neither could say what had happened.

[783]*783{¶ 8} Clark and Kelly took appellant to St. Elizabeth’s Hospital, where she was diagnosed with a fractured femur. On September 27, 2007, appellant, through her mother, filed the complaint in this action, asserting that she had been injured as a result of appellees’ “negligent supervision of the trampoline.” On November 13, 2007, appellees filed their answer and a third-party complaint against Clark for contribution, alleging that she had failed to properly supervise appellant.

{¶ 9} On April 28, 2008, appellees filed a motion for summary judgment based upon the Ohio Supreme Court’s holding in Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116. In that case, the court held that a plaintiff injured as a participant or a spectator in a sport or recreational activity, regardless of his age or his ability to appreciate the inherent risks, must demonstrate reckless or intentional conduct on the part of the defendant in order to recover damages. Id. at syllabus.

{¶ 10} On July 25, 2008, appellant filed her brief in opposition. She argued that the doctrine of primary assumption of the risk applied in Gentry should not apply in this case, because the risk she encountered was not inherent in the activity of jumping on a trampoline. She further argued that Gentry’s standard of “reckless or intentional” was inapplicable in the case sub judice and that the trial court should apply the ordinary negligence standard.

{¶ 11} On August 4, 2008, the trial court granted summary judgment, finding that “the Defendants [sic] motion for summary judgment is well taken, and there is no genuine issue of fact that exists; and therefore, the Defendants are entitled to judgment as a matter of law.” This timely appeal followed.

Standard of Review

{¶ 12} An appellate court conducts a de novo review of a trial court’s decision to grant summary judgment, using the same standards as the trial court, as set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Before summary judgment can be granted, the trial court must determine that (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 the evidence most strongly in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267. When a court considers a motion for summary judgment, the facts must be taken in the light most favorable to the nonmoving party. Id.

{¶ 13} “[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element [784]*784of the nonmoving party’s claim.” (Emphasis sic.) Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, 662 N.E.2d 264. If the moving party carries its burden, the nonmoving party has the reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, in the face of a properly supported motion for summary judgment, the nonmoving party must produce some evidence that suggests that a reasonable factfinder could rule in that party’s favor. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 386, 701 N.E.2d 1023.

Law

{¶ 14} To establish a claim of negligence in Ohio, a plaintiff must show the existence of a duty, a breach of that duty, and injury directly and proximately resulting from a breach of the duty. Menifee v.

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Cite This Page — Counsel Stack

Bluebook (online)
925 N.E.2d 1006, 185 Ohio App. 3d 780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-roscoe-ohioctapp-2009.