[Cite as Wagner v. Kretz, 2017-Ohio-8517.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
JOHN E. WAGNER, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 1-17-24
v.
DANIEL KRETZ, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court Trial Court No. CV2016 0278
Judgment Affirmed
Date of Decision: November 13, 2017
APPEARANCES:
Gordon D. Evans for Appellants, John & Linda Wagner
J. Alan Smith for Appellee, City of Lima
Christopher W. Carrigg for Appellee, Daniel Kretz Case No. 1-17-24
ZIMMERMAN, J.
{¶1} Plaintiff-Appellants John and Linda Wagner (collectively referred to as
“Appellants”) appeal the Allen County Common Pleas Court’s Judgment Entry
granting summary judgment in favor of Defendant-Appellees Daniel Kretz
(“Kretz”) and the City of Lima (collectively referred to as “Appellees”) and
dismissing Appellants’ Complaint. On appeal, Appellants assert that the trial court
erred by determining a grant of summary judgment was appropriate under the
Doctrine of Primary Assumption of Risk. For the reasons that follow, we affirm the
ruling of the Allen County Common Pleas Court.
Factual Background
{¶2} On May 26, 2014, Appellant John Wagner (“John”) was riding on a
parade float representing the Allen County Patriots, as part of a local Memorial Day
Parade. The parade float represented a military funeral. The float was constructed
upon an aluminum flatbed trailer, and featured a fake casket draped in the American
flag; a wrought iron tripod with a flower arrangement; and six wooden folding chairs
upon which “mourners” could sit. John Wagner was responsible for the float’s
design and provided the wrought iron tripod, the flower arrangement, and the six
(6) wooden folding chairs used by parade participants to sit upon while riding on
the float. The casket and wrought iron tripod were strapped down to the trailer bed,
while the wooden folding chairs were not secured to the trailer bed.
-2- Case No. 1-17-24
{¶3} The float was towed by a pick-up truck operated by Kretz, who, when
after the parade concluded, commenced to return the float to the starting location of
the parade on North Elizabeth Street in Lima. Appellants, and other members of
the Allen County Patriots, remained on the float for the return trip. While driving
on North Elizabeth Street, Kretz’s truck hit a four-foot long by six-foot wide defect
in the road, resulting in those on the float falling off their chairs and/or the float.
John’s fall (from the float) resulted in serious injuries, wherein he incurred
approximately $200,000 in medical bills.
Procedural Background
{¶4} On May 17, 2016, Appellants filed a complaint for injuries against
Kretz, Tom Ahl Dealership, the City of Lima, Dominion East Ohio Gas Company,
Jim’s Excavating, and John Does 1-10, in the Allen County Court of Common Pleas.
Specifically, Appellants alleged that Kretz negligently operated the truck pulling the
parade float; that Kretz was acting within the course and scope of his employment
with Tom Ahl Dealership, making them liable under the doctrine of Agency by
Estoppel; that the City of Lima, Ohio created the defect/pot hole on the road in
question and/or failed to properly maintain the road which made the road defective
and/or dangerous for use; that Dominion East Ohio Gas Company created the pot
hole/defect on the road in question and failed to repair it; that Jim’s Excavating
created the pot hole/defect in question, and failed to repair it; and finally, that Linda
-3- Case No. 1-17-24
Wagner, because of the accident on the parade float, had lost the comfort, care,
services, and consortium of her husband, John. (Doc. No. 1). All defendants filed
an answer to Appellants’ Complaint. One of the named defendants, Dominion East
Ohio Gas Company, filed a cross-claim against the City of Lima. In turn, the City
of Lima filed a cross-claim against Dominion East Ohio Gas Company, Kretz, and
Jim’s Excavating. (Doc. Nos. 8, 9, 10, 11, 13, 16, 17, 18, 19, 20).
{¶5} On January 23, 2017, Dominion East Ohio Gas Company voluntarily
dismissed its cross-claim against the City of Lima. (Doc. No. 58). On January 30,
2017, the City of Lima voluntarily dismissed its cross-claim against Dominion East
Ohio Gas Company. (Doc. No. 59). Further, and also on January 30, 2017,
Appellants voluntarily dismissed Dominion East Ohio Gas Company and Jim’s
Excavating as defendants. (Doc. Nos. 60, 61). On February 1, 2017, Dominion
East Ohio Gas Company voluntarily dismissed its cross-claim against Kretz. (Doc.
No. 62).
{¶6} On April 3, 2017, Tom Ahl Dealership and the City of Lima filed
motions for summary judgment with briefs in support in the trial court. (Doc. Nos.
76-78). Kretz joined Tom Ahl Dealership, in part, in its motion for summary
judgment. (Doc. No. 79). On April 13, 2017, Appellants filed a memorandum
contra to the City of Lima’s Motion for summary judgment, to which the City of
-4- Case No. 1-17-24
Lima replied to on April 25, 2017. (Doc. No. 81). On April 27, 2017, Appellants
voluntarily dismissed Tom Ahl Dealership as a party defendant.
{¶7} On May 19, 2017, the Allen County Common Pleas Court issued its
decision pursuant to Civ.R. 56, granting summary judgment to the two remaining
defendants, City of Lima and Kretz. (Doc. No. 94). Specifically, the trial court
found that Appellants’ claim was barred under the doctrine of primary assumption
of the risk, finding that the Appellants participated in an inherently dangerous
activity when riding on a parade float. (Id. at 7). From this entry Appellants timely
appeal and present the following assignment of error for our review:
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED BY DETERMINING A GRANT OF SUMMARY JUDGMENT WAS APPROPRIATE UNDER THE DOCTRINE OF PRIMARY ASSUMPTION OF RISK.
Appellant’s First Assignment of Error
{¶8} In their sole assignment of error, Appellants assert that the trial court
erred by determining that John Wagner primarily assumed the risk of injury by
participating on a parade float. Specifically, Appellants argue that the trial court
incorrectly ruled that riding on a parade float in a Memorial Day Parade was an
inherently dangerous activity. For the reasons that follow, we disagree.
-5- Case No. 1-17-24
Standard of Review
{¶9} An appellate court reviews a trial court’s decision on a motion for
summary judgment de novo. Hancock Fed. Credit Union v. Coppus, 2015-Ohio-
5312, 54 N.E.3d 806, ¶ 15 (3rd Dist.). Trial courts may grant a motion for summary
judgment 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 that
conclusion is adverse to the party against whom the motion for summary judgment
is made.” Hamilton v. Hector, 117 Ohio App.3d 816, 819, 691 N.E.2d 745 (3rd
Dist.1997). Additionally, “‘upon appeal from summary judgment, the reviewing
court should look at the record in the light most favorable to the party opposing the
motion.’” Id. quoting Campbell v. Hosp. Motor Inns, Inc., 24 Ohio St.3d 54, 58,
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[Cite as Wagner v. Kretz, 2017-Ohio-8517.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
JOHN E. WAGNER, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 1-17-24
v.
DANIEL KRETZ, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court Trial Court No. CV2016 0278
Judgment Affirmed
Date of Decision: November 13, 2017
APPEARANCES:
Gordon D. Evans for Appellants, John & Linda Wagner
J. Alan Smith for Appellee, City of Lima
Christopher W. Carrigg for Appellee, Daniel Kretz Case No. 1-17-24
ZIMMERMAN, J.
{¶1} Plaintiff-Appellants John and Linda Wagner (collectively referred to as
“Appellants”) appeal the Allen County Common Pleas Court’s Judgment Entry
granting summary judgment in favor of Defendant-Appellees Daniel Kretz
(“Kretz”) and the City of Lima (collectively referred to as “Appellees”) and
dismissing Appellants’ Complaint. On appeal, Appellants assert that the trial court
erred by determining a grant of summary judgment was appropriate under the
Doctrine of Primary Assumption of Risk. For the reasons that follow, we affirm the
ruling of the Allen County Common Pleas Court.
Factual Background
{¶2} On May 26, 2014, Appellant John Wagner (“John”) was riding on a
parade float representing the Allen County Patriots, as part of a local Memorial Day
Parade. The parade float represented a military funeral. The float was constructed
upon an aluminum flatbed trailer, and featured a fake casket draped in the American
flag; a wrought iron tripod with a flower arrangement; and six wooden folding chairs
upon which “mourners” could sit. John Wagner was responsible for the float’s
design and provided the wrought iron tripod, the flower arrangement, and the six
(6) wooden folding chairs used by parade participants to sit upon while riding on
the float. The casket and wrought iron tripod were strapped down to the trailer bed,
while the wooden folding chairs were not secured to the trailer bed.
-2- Case No. 1-17-24
{¶3} The float was towed by a pick-up truck operated by Kretz, who, when
after the parade concluded, commenced to return the float to the starting location of
the parade on North Elizabeth Street in Lima. Appellants, and other members of
the Allen County Patriots, remained on the float for the return trip. While driving
on North Elizabeth Street, Kretz’s truck hit a four-foot long by six-foot wide defect
in the road, resulting in those on the float falling off their chairs and/or the float.
John’s fall (from the float) resulted in serious injuries, wherein he incurred
approximately $200,000 in medical bills.
Procedural Background
{¶4} On May 17, 2016, Appellants filed a complaint for injuries against
Kretz, Tom Ahl Dealership, the City of Lima, Dominion East Ohio Gas Company,
Jim’s Excavating, and John Does 1-10, in the Allen County Court of Common Pleas.
Specifically, Appellants alleged that Kretz negligently operated the truck pulling the
parade float; that Kretz was acting within the course and scope of his employment
with Tom Ahl Dealership, making them liable under the doctrine of Agency by
Estoppel; that the City of Lima, Ohio created the defect/pot hole on the road in
question and/or failed to properly maintain the road which made the road defective
and/or dangerous for use; that Dominion East Ohio Gas Company created the pot
hole/defect on the road in question and failed to repair it; that Jim’s Excavating
created the pot hole/defect in question, and failed to repair it; and finally, that Linda
-3- Case No. 1-17-24
Wagner, because of the accident on the parade float, had lost the comfort, care,
services, and consortium of her husband, John. (Doc. No. 1). All defendants filed
an answer to Appellants’ Complaint. One of the named defendants, Dominion East
Ohio Gas Company, filed a cross-claim against the City of Lima. In turn, the City
of Lima filed a cross-claim against Dominion East Ohio Gas Company, Kretz, and
Jim’s Excavating. (Doc. Nos. 8, 9, 10, 11, 13, 16, 17, 18, 19, 20).
{¶5} On January 23, 2017, Dominion East Ohio Gas Company voluntarily
dismissed its cross-claim against the City of Lima. (Doc. No. 58). On January 30,
2017, the City of Lima voluntarily dismissed its cross-claim against Dominion East
Ohio Gas Company. (Doc. No. 59). Further, and also on January 30, 2017,
Appellants voluntarily dismissed Dominion East Ohio Gas Company and Jim’s
Excavating as defendants. (Doc. Nos. 60, 61). On February 1, 2017, Dominion
East Ohio Gas Company voluntarily dismissed its cross-claim against Kretz. (Doc.
No. 62).
{¶6} On April 3, 2017, Tom Ahl Dealership and the City of Lima filed
motions for summary judgment with briefs in support in the trial court. (Doc. Nos.
76-78). Kretz joined Tom Ahl Dealership, in part, in its motion for summary
judgment. (Doc. No. 79). On April 13, 2017, Appellants filed a memorandum
contra to the City of Lima’s Motion for summary judgment, to which the City of
-4- Case No. 1-17-24
Lima replied to on April 25, 2017. (Doc. No. 81). On April 27, 2017, Appellants
voluntarily dismissed Tom Ahl Dealership as a party defendant.
{¶7} On May 19, 2017, the Allen County Common Pleas Court issued its
decision pursuant to Civ.R. 56, granting summary judgment to the two remaining
defendants, City of Lima and Kretz. (Doc. No. 94). Specifically, the trial court
found that Appellants’ claim was barred under the doctrine of primary assumption
of the risk, finding that the Appellants participated in an inherently dangerous
activity when riding on a parade float. (Id. at 7). From this entry Appellants timely
appeal and present the following assignment of error for our review:
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED BY DETERMINING A GRANT OF SUMMARY JUDGMENT WAS APPROPRIATE UNDER THE DOCTRINE OF PRIMARY ASSUMPTION OF RISK.
Appellant’s First Assignment of Error
{¶8} In their sole assignment of error, Appellants assert that the trial court
erred by determining that John Wagner primarily assumed the risk of injury by
participating on a parade float. Specifically, Appellants argue that the trial court
incorrectly ruled that riding on a parade float in a Memorial Day Parade was an
inherently dangerous activity. For the reasons that follow, we disagree.
-5- Case No. 1-17-24
Standard of Review
{¶9} An appellate court reviews a trial court’s decision on a motion for
summary judgment de novo. Hancock Fed. Credit Union v. Coppus, 2015-Ohio-
5312, 54 N.E.3d 806, ¶ 15 (3rd Dist.). Trial courts may grant a motion for summary
judgment 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 that
conclusion is adverse to the party against whom the motion for summary judgment
is made.” Hamilton v. Hector, 117 Ohio App.3d 816, 819, 691 N.E.2d 745 (3rd
Dist.1997). Additionally, “‘upon appeal from summary judgment, the reviewing
court should look at the record in the light most favorable to the party opposing the
motion.’” Id. quoting Campbell v. Hosp. Motor Inns, Inc., 24 Ohio St.3d 54, 58,
493 N.E.2d 239 (1986).
Negligence and Primary Assumption of the Risk
{¶10} “A successful negligence claim requires the plaintiff to prove that the
defendant owed a duty.” Cave v. Burt, 4th Dist. Ross No. 03CA2730, 2004-Ohio-
3442, ¶ 14. The existence of a duty is a question of law for the court to decide. Id.
{¶11} However, “[p]rimary assumption of the risk is applied to cases where
there is no duty owed by the defendant to the plaintiff.” Booth v. Walls, 3rd Dist.
Henry No. 7-12-23, 2013-Ohio-3190, ¶ 48. “Whether to apply primary assumption
-6- Case No. 1-17-24
of the risk is a matter of law for the court to decide.” Id. Since “‘a successful
primary assumption of risk defense means that the duty element of negligence is not
established as a matter of law, the defense prevents the plaintiff from even making
a prima facie case.” Id. quoting Wolfe v. Bison Baseball, Inc., 10th Dist. Franklin
No. 09AP-905, 2010-Ohio-1390, ¶ 21 quoting Gallagher v. Cleveland Browns
Football Co., 74 Ohio St.3d 427, 432, 1996-Ohio-320, 659 N.E.2d 1232 (1996).
{¶12} “In order to succeed on a primary assumption of the risk defense, it
must be shown that (1) the danger is ordinary to the activity; (2) there is common
knowledge that the danger exists; and (3) that the injury occurs as result of the
danger during the course of the activity.” Id. at ¶ 49 citing Santho v. Boy Scouts of
Am., 168 Ohio App.3d 27, 2006-Ohio-3656, 857 N.E.2d 1255, ¶ 12 (10th Dist.).
Courts have adopted this doctrine on the basis of “the notice that certain risks are so
inherent in some activities that they cannot be eliminated.” Id. quoting Collier v.
Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist.1987).
Finally, “primary assumption of the risk has nothing to do with [an Appellant’s]
conduct.” Cremeans v. Willmar Henderson Mfg. Co., 3rd Dist. Union No. 14-85-5,
1989 WL 98426, * 1 quoting Mima v. City of Akron, 31 Ohio App.3d 124, 125, 508
N.E.2d 974 (9th Dist.1986).
{¶13} While Appellants attempt to frame the issue before the Court as
“whether the activity of participating in a Memorial Day parade is inherently
-7- Case No. 1-17-24
dangerous,” we find that the proper issue before us is whether sitting on an
unsecured wooden chair on a moving aluminum flatbed trailer is an inherently
dangerous activity to which primary assumption of the risk may apply.
Danger is Ordinary to the Activity
{¶14} Under the first prong of the primary assumption of risk defense, we
must determine whether or not the danger is ordinary to the activity. Similar to the
facts in the case before us, in Lawrence v. Toledo Terminal R. Co., the Plaintiff sat
upon an inverted bucket which was located in the left rear corner of a trailer (being
towed by a truck) containing a load of furniture. Lawrence v. Toledo Terminal R.
Co., 154 Ohio St. 335, 336, 96 N.E.2d 7 (1950). As the truck and trailer approached
a set of railroad tracks, the Plaintiff noticed an oncoming train and stood up. Id.
From this position the Plaintiff either jumped or was thrown from the trailer in the
path of the train, and his legs were crushed.1 Id.
{¶15} Akin to the facts set forth in Lawrence, John Wagner was sitting on an
unsecured wooden folding chair on a flatbed trailer being towed by a truck that
could “easily overturn and also be likely to slide about on the floor of the trailer.2”
Id. at 339. The logical nexus of a chair overturning and/or sliding about a moving
1 While we are aware that the Plaintiff’s injury in Lawrence occurred from a standing position, the Ohio Supreme Court did analyze the inherent danger in sitting upon an unsecured apparatus on a moving trailer. 2 While the Lawrence decision preceded tort reform in Ohio, we find that the type of activity and the analysis regarding the danger that could result from participation in said activity (sitting on an unsecured bucket that had the potential to slide and overturn) pertinent to the facts at hand.
-8- Case No. 1-17-24
flatbed trailer presents the potential for a fall, which is exactly what happened (to
John) in this case. Accordingly, we find that a risk of falling is a danger ordinary to
the activity of sitting on an unsecured chair while riding on an aluminum flatbed
trailer that is being towed by a truck. Thus, we find the first prong of the primary
assumption of the risk test is satisfied herein.
Common Knowledge that the Danger Exists
{¶16} In analyzing the second prong of the primary assumption of the risk
test, we must determine whether it is common knowledge that a potential for danger
exists when sitting on an unsecured wooden chair when riding on a towed flat-bed
trailer. John Wagner’s testimony reveals his awareness of the potential that
unsecured items on the moving trailer could tip or fall over, as evidenced by this
exchange:
Q. (Cross-Examination by Attorney Fitzgerald) And, in fact, you brought the spray of flowers; correct?
A. (John Wagner) Yes.
Q. And you said that you had to tie that flower arrangement down on the float?
A. No. Someone else tied down the wrought iron stand that it was on.
Q. That, that the flowers were on?
A. Yes, right.
Q. Well why would they do that?
-9- Case No. 1-17-24
A. Attorney Evans: Objection, speculation.
Q. No.
A. Attorney Evans: You can answer if you know.
Q. Why do you think they did that? I apologize, go ahead.
A. Why do I think so?
Q. Yes.
A. They were probably afraid it would tip over.
(John E. Wagner Dep., 11/09/2016 Tr. at 243).
{¶17} Furthermore, it is common knowledge that a flatbed trailer is neither
designed nor built to transport people, only secured objects. Thus, a person is put
in danger when sitting on an unsecured chair on a flatbed trailer that is being towed.
Accordingly, the second prong of the primary assumption of the risk test is satisfied.
Injury Occurs as a Result of the Danger During the Course of the Activity
{¶18} The third part to the primary assumption of the risk test involves the
question of whether the claimed injury occurred during the course of engaging in
the participated activity. In this case there is no dispute that John Wagner’s injuries
occurred as a result of being thrown off the trailer, and such fall took place during
the course of the activity in which he participated.
-10- Case No. 1-17-24
{¶19} While we are sympathetic to Mr. Wagner, we find that the three prongs
of the primary assumption of the risk test have been satisfied in this case.
{¶20} Accordingly, we hold that the act of sitting on an unsecured wooden
folding chair on an aluminum flatbed trailer being towed by a pickup truck is an
inherently dangerous activity in which Appellant John Wagner assumed the risk of
injury. And, under the defense of primary assumption of the risk in this case, the
Appellees owed no duty to John Wagner. Therefore, as a matter of law, Appellees
are not liable for the injuries incurred by John Wagner resulting from his fall from
the flatbed trailer.
{¶21} Thus, the summary judgment decision of the trial court was proper.
Appellants sole assignment of error is therefore overruled.
{¶22} Having found no error prejudicial to the Appellants herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
PRESTON, P.J. and SHAW, J., concur.
/jlr
-11-