Price v. Decker

2014 Ohio 1125

• Court: Ohio Court of Appeals
• Decided: March 11, 2014
• Docket: 13CAE070058
• Status: Published

Opinion

[Cite as Price v. Decker, 2014-Ohio-1125.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

GERALD R. PRICE, ET AL : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiffs-Appellants : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13CAE070058 : THOMAS DECKER : : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 12CVC111322

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 11, 2013

APPEARANCES:

For Plaintiffs-Appellants: For Defendant-Appellee:

RICHARD D. BROWN DANIEL J. HURLEY WEAVER LAW OFFICES, LLC CRABBE, BROWN & JAMES LLP 3 S. High St. 500 S. Front St., Suite 1200 Canal Winchester, OH 43110 Columbus, OH 43215 Delaware County, Case No.13CAE070058 2

Delaney, J.

{¶1} Plaintiffs-Appellants Gerald R. and Louisa F. Price appeal the July 2, 2013

judgment entry of the Delaware County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶2} Dinneen Field, located in Westerville, Delaware County, Ohio, is used by

model airplane enthusiasts to file radio-controlled airplanes. Dinneen Field has a long

grass field that is used as a runway for the model airplanes to take off and land.

Adjacent to the grass runway are five square concrete flying pads upon which model

airplane operators stand to fly their airplanes. Around each concrete pad is a three-

sided protective fence angled around the pad for the operator to stand behind to fly the

airplane. Beyond the concrete flying pads is a grassy area that is bordered by a

protective fence. The area behind the fence is the “pit area.” The pit area has benches

for the model airplane operators to sit to work on their planes. Between the pit area and

the flights stations are large planter-type boxes for protection between the concrete

flying pads and the pit area.

{¶3} On September 4, 2009, Defendant-Appellee Thomas Decker was flying

his 67” Fusion X3 model airplane at Dinneen Field. Plaintiff-Appellant Gerald Price was

already at Dinneen Field. Price had previously expressed interest in flying Decker’s

model airplane. Decker invited Price to the concrete flying pad to fly his model airplane

and he handed Price the controls. As Price was flying the model airplane, Price said the

plane was hit with radio interference, causing the plane to tumble in the sky. Price

regained control of the plane and handed the controls back to Decker. Delaware County, Case No.13CAE070058 3

{¶4} Decker landed the plane and taxied it back to the concrete flying pad.

Decker and Price discussed what happened to the model airplane while it was flying.

During their discussion, the model airplane engine was idling. Price did not ask Decker

to turn off the engine of the model airplane. The conversation concluded and Price

turned to walk away. He heard the model airplane engine go full throttle. He turned and

saw the model airplane coming towards him. He could not move his left leg out of the

way in time and the model airplane propeller struck his left leg, causing severe

lacerations.

{¶5} Price and his wife, Plaintiff-Appellant Louisa F. Price filed a personal injury

complaint against Decker in the Franklin County Court of Common Pleas. The Franklin

County Court of Common Pleas transferred the action to the Delaware County Court of

Common Pleas. Price voluntarily dismissed the complaint. Price refiled the complaint,

alleging negligence and recklessness by Decker. Decker filed a motion for summary

judgment, arguing he was entitled to judgment as a matter of law based on the

recreational activity doctrine. The trial court granted Decker’s motion for summary

judgment on July 2, 2013.

{¶6} It is from this decision Price now appeals.

ASSIGNMENTS OF ERROR

{¶7} Price raises two Assignments of Error:

{¶8} “I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-

APPELLEE’S MOTION FOR SUMMARY JUDGMENT AND IN APPLYING THE

RECREATIONAL ACTIVITY DOCTRINE, AS THE RISKS FACED BY GERALD PRICE Delaware County, Case No.13CAE070058 4

WERE NOT FORESEEABLE AND CUSTOMARY TO THE ACT OF MODEL

AIRPLANE FLYING.

{¶9} “II. EVEN IF THE RECREATIONAL ACTIVITY DOCTRINE APPLIES IN

THIS CASE, THE ACTIONS OF DEFENDANT-APPELLEE CONSTITUTE RECKLESS

CONDUCT, OR, AT A MINIMUM, CREATE A QUESTION OF FACT FOR THE JURY

TO DECIDE, RENDERING SUMMARY JUDGMENT IMPROPER.”

ANALYSIS

Summary Judgment Standard of Review

{¶10} Price’s first and second Assignments of Error refer to the trial court’s grant

of summary judgment in favor of Decker. We refer to Civ.R. 56(C) in reviewing a motion

for summary judgment, which provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleading,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence in the pending case and written stipulations of fact,

if any, timely filed in the action, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a

matter of law. * * * A summary judgment shall not be rendered unless it

appears from such evidence or stipulation and only from the evidence or

stipulation, that reasonable minds can come to but one conclusion and

that conclusion is adverse to the party against whom the motion for

summary judgment is made, such party being entitled to have the

evidence or stipulation construed most strongly in the party's favor. Delaware County, Case No.13CAE070058 5

{¶11} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d

264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot

rest on the allegations or denials in the pleadings, but must set forth “specific facts” by

the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

{¶12} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

I. Recreational Activity Doctrine

{¶13} In Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), and

Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990), the Supreme Court of

Ohio concluded that individuals engaging in recreational or sports activities assume the

ordinary risks of the activity and cannot recover for injury unless the other participant's

actions were either intentional or reckless. In addition, the Court held the conduct must

be the foreseeable and customary part of the activity. Marchetti applies to all sporting

and recreational activities regardless of expectation of injury. Spangler v. Kehres, 107

Ohio App.3d 1, 3, 667 N.E.2d 991 (5th Dist.1995).

{¶14} In Zinn v. Cattell, 11th Dist. Ashtabula No. 93-A-1831, 1994 WL 102377

(Mar. 18, 1994), the Eleventh District Court of Appeals determined flying radio- Delaware County, Case No.13CAE070058 6

controlled model airplanes was a recreational activity. The plaintiff in Zinn was injured

when he was struck in the hand by the propeller from a radio-controlled model airplane

being operated by the defendant. Id. at 1. The parties were at the airfield where they

would operate their model airplanes. The incident occurred after the defendant had

landed his plane and was taxiing it to the pits. As the plaintiff was preparing his plane for

flight in the contiguous parking lot, the defendant’s plane inexplicably flew at the plaintiff,

injuring his hand. Id. at 1.

{¶15} The plaintiff argued on appeal that the defendant’s loss of control over the

model airplane was not a customary, foreseeable risk of the activity of flying model

airplanes. The court disagreed:

As a preliminary matter, we note that if there is any risk associated with

flying model airplanes, it would be the risk that an operating plane would

come in contact with another, potentially causing injury. We hold that the

loss of control over a model airplane is a foreseeable occurrence in the

activity of flying model airplanes.

Id. at 2.

{¶16} Price concedes in his appellate brief that flying model airplanes is a

recreational activity. He further concedes that liability for an injury caused by a model

airplane could be barred if the injury occurred while operating the plane under normal

conditions. In this case, however, Price argues the risk he faced was not under normal

conditions and was therefore outside the foreseeable and customary part of the activity

of flying model airplanes. He contends his injury was not a foreseeable and customary Delaware County, Case No.13CAE070058 7

risk in the activity in flying model airplanes because the injury occurred while the model

airplane was idling on the ground near the concrete flying pad.

{¶17} Price first contends the incident was outside the customary risk because

Decker violated the rules of Dinneen Field. Price argues Decker violated the rules of

Dinneen Field because Decker’s model airplane engine was idling while parked near

the concrete pad. Price states Decker should have shut the model airplane engine off.

Wesley McClanahan, a model airplane enthusiast who flies his planes at Dinneen Field,

testified it was against the rules of Dinneen Field to taxi an airplane past the concrete

pad into the grassy area prior to reaching the pit area. (McClanahan Depo., 19).

McClanahan testified that when the pilot lands the plane, the pilot is to taxi back from

whichever end of the field the operator is located, and then the pilot shuts the plane off

and carries it back. (McClanahan Depo., 19). It would be improper for a pilot to taxi his

plane toward the pit area after landing the plane and coming in. (McClanahan Depo.,

20). McClanahan also testified, however, that everybody taxied their model airplanes

into or toward the pit area at Dinneen Field. “We all taxi back to the pit area.”

(McClanahan Depo., 8-9). Kevin D. Kretschmer, another model airplane enthusiast who

witnessed the incident, testified as to the rules of Dinneen Field:

Q. Had you ever observed [Decker] taxiing his airplane improperly or in an

improper area?

A. No. The only thing that he would do is he would taxi his plane – we

have flight stations. So he would taxi his plane towards the flights stations

and pointed in between in times. But other than that, I don’t recall. Delaware County, Case No.13CAE070058 8

Q. And would you consider that to be improper taxiing between the flight

stations?

A. No. Well, most people don’t, but, again, I – I don’t – wouldn’t

necessarily consider it improper.

Q. Have you observed other people doing that –

A. Yes.

Q. – at the field?

(Kretschmer Depo., 9-10). Kretschmer was not aware of a rule of the field that

prohibited a pilot from taxiing a model airplane past the concrete flying pads towards the

pit area. (Kretschmer Depo., 22).

{¶18} Price next argues the incident was outside the foreseeable and

customary activity of model airplane flying because Decker failed to properly maintain

his airplane. Price testified in his deposition it was his opinion as an experienced model

airplane pilot that Decker failed to set or properly set the failsafe function on the plane.

The failsafe is a system built into the electronics of the model airplane transmitter that if

the transmitter and receiver lose communication, the model airplane would go to the

previous failsafe set condition. (Price Depo., 19). Price sets the throttle on his model

airplane to low throttle so if it loses control, it will drop to low throttle and will not travel a

great distance in the air or move on the ground. (Price Depo., 19-20). It was Price’s

opinion that the failsafe was not set on Decker’s model airplane because it did not drop

to low throttle when it experienced radio interference while Price was flying the airplane

and when the airplane went to full throttle while on the ground. (Price Depo., 51). Price

did not inspect Decker’s model airplane before or after the incident. (Price Depo., 78). Delaware County, Case No.13CAE070058 9

Kretschmer examined Decker’s plane after the incident but he did not check to see if the

failsafe function was set. (Kretschmer Depo., 12).

{¶19} The trial court determined there was no genuine issue of material fact the

incident was within the foreseeable and customary risk of flying a model airplane. We

agree. The case is about the loss of control of a model airplane, as discussed in Zinn v.

Cattell. Price argues the circumstances of this case, such as Decker’s violations of the

field rules and Decker’s alleged failure to set the failsafe functions, resulted in risks that

were outside the foreseeable and customary nature of model airplane flying. Our review

of the Civ.R. 56 evidence presented, considered in a light most favorable to Price, does

not create a genuine material of fact as to whether the loss of control of the model

airplane was within the ordinary risks.

{¶20} McClanahan and Kretschmer testified there might be a Dinneen Field rule

that model airplane pilots cannot taxi their planes toward the pit area, but they

witnessed pilots taxiing their planes towards the pit area. Further, in this case, the

accident did not occur while Decker was in the process of taxiing his plane toward the

pit area. Decker’s model airplane went full throttle and struck Price in the leg while the

plane was parked and engine idling near the concrete flying pad. Price did not present

any Civ.R. 56 evidence as to whether there is a Dinneen Field rule that the engine of

the model airplane must be turned off when the plane is not flying. Based on the Civ.R.

56 evidence presented as to the rules of Dinneen Field, a parked model airplane near

the concrete flying pads with engine idling does not present circumstances outside the

customary and foreseeable risk involved with the recreational activity of flying model

airplanes. Delaware County, Case No.13CAE070058 10

{¶21} As to the failsafe function on Decker’s model airplane, we agree with the

trial court that the Civ.R. 56 evidence presented creates no genuine issue of material

fact. Price testified it was his opinion that the failsafe was not set on Decker’s model

airplane. He speculated that the manner in which the model airplane performed in the

air and on the ground meant Decker did not properly set the failsafe function. Price did

not inspect Decker’s model airplane before or after the accident. Kretschmer examined

Decker’s model airplane after the accident but did not check the failsafe function.

{¶22} Marchetti applies to all sporting and recreational activities regardless of

expectation of injury. Spangler v. Kehres, 107 Ohio App.3d 1, 3, 667 N.E.2d 991 (5th

Dist.1995). The risk of flying model airplanes is that an operating plane may come in

contact with another, potentially causing injury. Zinn, supra at 2. We notice that Zinn did

not limit the recreational activity to only a “flying” model airplane – it highlighted the

inherent risk in an “operating” model airplane. In this case, the parties had just finished

flying Decker’s model airplane and taxied it near the concrete flying pad. The model

airplane was parked and the engine was idling while the parties discussed the model

airplane. At that point, the operating model airplane lost control. We find under these

factual circumstances, the loss of control of Decker’s operating model airplane was

within the foreseeable and customary risk of the recreational activity of flying model

airplanes.

{¶23} Price’s first Assignment of Error is overruled. Delaware County, Case No.13CAE070058 11

II. Recklessness

{¶24} Price next argues the trial court erred when it determined that Decker’s

conduct during the recreational activity of flying model airplanes was not reckless. We

disagree.

{¶25} As stated above, the Supreme Court of Ohio concluded that individuals

engaging in recreational or sports activities assume the ordinary risks of the activity and

cannot recover for injury unless the other participant's actions were either intentional or

reckless. Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990); Thompson v.

McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990)

{¶26} Reckless conduct is characterized by the conscious disregard of or

indifference to a known or obvious risk of harm to another that is unreasonable under

the circumstances and is substantially greater than negligent conduct. 2 Restatement of

the Law 2d, Torts, Section 500 (1965). See also Anderson v. Massillon, 134 Ohio St.3d

380, 983 N.E.2d 266, 2012–Ohio–5711, syllabus, reconsideration denied, 133 Ohio

St.3d 1511, 979 N.E.2d 1289, 2012–Ohio–6209 (distinguishing “willful,” “wanton,” and

“reckless” as different and distinct degrees of care). Kinnison v. Ohio State Univ., 10th

Dist. No. 13AP-501, 2013-Ohio-5715, ¶ 7. In considering whether the intentional or

reckless misconduct gives rise to liability, it must be understood in the context of the

rules of the sport. Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705, 707

(1990).

{¶27} Price stated in his deposition that he did not believe Decker hurt him

intentionally. (Price Depo., 51). Price argues Decker’s conduct in the operation of his

model airplane rose to the level of recklessness. Price’s arguments as to the operation Delaware County, Case No.13CAE070058 12

of the model airplane relate to Decker’s alleged failure to set the failsafe function and

Decker’s failure to turn off the model airplane’s engine while it was parked near the

concrete flying pad.

{¶28} We discussed Decker’s operation of the model airplane in our analysis of

whether the circumstances of the injury suffered by Price was within the foreseeable

and customary part of the recreational activity. Based on our analysis above, we find

Decker’s operation of his model airplane did not rise to the level of recklessness. The

model airplane was parked and idling by the concrete flying pad when the injury

occurred. While the rules of Dinneen Field may prohibit a pilot from taxiing a plane to

the pit area, Price did not present any Civ.R. 56 evidence that it was against Dinneen

Field rules to idle a model airplane near the concrete flying pad. Price also speculated

that Decker had failed to properly set the failsafe function on his model airplane. Price

did not inspect the plane. Kretschmer inspected the plane after the accident but did not

inspect the failsafe function. Under these facts, reasonable minds could only conclude

that Decker’s operation of the plane did not exhibit a conscious disregard of or

indifference to a known or obvious risk of harm to another that is unreasonable under

the circumstances and is substantially greater than negligent conduct.

{¶29} Price’s second Assignment of Error is overruled. Delaware County, Case No.13CAE070058 13

CONCLUSION

{¶30} The Assignments of Error of Plaintiffs-Appellants Gerald R. and Louisa F.

Price are overruled.

{¶31} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Farmer, J., concur.