assumption of risk doctrine in Ohio

1996However, now, under R.C. 2315.19, if a plaintiffs conduct constitutes both contributory negligence and assumption of risk, continued adherence to the differentiation of the doctrines can lead to the anomalous situation where a defendant can circumvent the comparative negligence statute entirely by asserting the assumption of risk defense alone.” 6 Ohio St.3d at 113 , 6 OBR at 173, 451 N.E.2d at 783 .

1996However, now, under R.C. 2315.19, if a plaintiffs conduct constitutes both contributory negligence and assumption of risk, continued adherence to the differentiation of the doctrines can lead to the anomalous situation where a defendant can circumvent the comparative negligence statute entirely by asserting the assumption of risk defense alone.” 6 Ohio St.3d at 113 , 6 OBR at 173, 451 N.E.2d at 783 .

2023Id. {¶55} “When 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 were either reckless or intentional.” Marchetti v. Kalish, 53 Ohio St.3d 95 , 559 N.E.2d 699 (1990). {¶56} The primary assumption of risk doctrine defense relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity, because such risks cannot be eliminated.

2023Id. {¶55} “When 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 were either reckless or intentional.” Marchetti v. Kalish, 53 Ohio St.3d 95 , 559 N.E.2d 699 (1990). {¶56} The primary assumption of risk doctrine defense relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity, because such risks cannot be eliminated.

2025Id. {¶ 17} In reaching this decision, this court further noted that, while the Ohio Supreme Court has not had the opportunity to weigh in on this precise issue, "other courts -9- Madison CA2025-03-010 of appeal have extended the primary assumption of risk doctrine to non-participant defendants." Id. at ¶ 24, citing as support Ochall v. McNamer, 2016-Ohio-8493 (10th Dist.); Drury v. Blackston, 2015-Ohio-4725 (3d Dist.); Curtis v. Schmid, 2008-Ohio-5239 (5th Dist.); Santho v. BSA, 2006-Ohio-3656 (10th Dist.); Rees v. Cleveland Indians Baseball Co., 2004-Ohio-6112 (8th Dist.); Bundschu v. Naffah,

2018Ochall v. McNamer , 2016-Ohio-8493 , 79 N.E.3d 1215 , ¶ 34 ; Morgan v. Kent State Univ. , 2016-Ohio-3303 , 54 N.E.3d 1284 , ¶ 12 ; Santho v. Boy Scouts of Am. , 168 Ohio App.3d 27 , 2006-Ohio-3656 , 857 N.E.2d 1255 , ¶ 12 (10th Dist.).

2019Franklin No. 81AP-548, 1981 Ohio App. LEXIS 12836 , * 3-4 (Dec. 22, 1981), quoting Masters v. The New York Central Rd Co., 147 Ohio St. 293 (1947), paragraph four of the syllabus.

1987We do not believe that the General Assembly intended such a result in its enactment of R.C. 2315.19 * * *.” Id. at 113 , 6 OBR at 173, 451 N.E. 2d at 783.

2025Therefore, the trial court made no findings on Herman’s assertions. {¶51} No exceptional circumstances exist in this case which would require the application of the plain error doctrine “to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings.” Goldfuss, 79 Ohio St.3d at 122 .

2025Id. {¶ 17} In reaching this decision, this court further noted that, while the Ohio Supreme Court has not had the opportunity to weigh in on this precise issue, "other courts -9- Madison CA2025-03-010 of appeal have extended the primary assumption of risk doctrine to non-participant defendants." Id. at ¶ 24, citing as support Ochall v. McNamer, 2016-Ohio-8493 (10th Dist.); Drury v. Blackston, 2015-Ohio-4725 (3d Dist.); Curtis v. Schmid, 2008-Ohio-5239 (5th Dist.); Santho v. BSA, 2006-Ohio-3656 (10th Dist.); Rees v. Cleveland Indians Baseball Co., 2004-Ohio-6112 (8th Dist.); Bundschu v. Naffah,

2025Id. {¶ 17} In reaching this decision, this court further noted that, while the Ohio Supreme Court has not had the opportunity to weigh in on this precise issue, "other courts -9- Madison CA2025-03-010 of appeal have extended the primary assumption of risk doctrine to non-participant defendants." Id. at ¶ 24, citing as support Ochall v. McNamer, 2016-Ohio-8493 (10th Dist.); Drury v. Blackston, 2015-Ohio-4725 (3d Dist.); Curtis v. Schmid, 2008-Ohio-5239 (5th Dist.); Santho v. BSA, 2006-Ohio-3656 (10th Dist.); Rees v. Cleveland Indians Baseball Co., 2004-Ohio-6112 (8th Dist.); Bundschu v. Naffah,

2023Simmons v. Quarry Golf Club, 2016-Ohio-525 , 60 N.E.3d 454 , ¶ 20 (5th Dist.).

2018Morgan , 2016-Ohio-3303 , 54 N.E.3d 1284 , at ¶ 12 ; Santho v. Boy Scouts of Am. , 168 Ohio App.3d 27 , 2006-Ohio-3656 , 857 N.E.2d 1255 , ¶ 12 (10th Dist.). " 'To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.' " Horvath v. Ish , 134 Ohio St.3d 48 , 2012-Ohio-5333 , 979 N.E.2d 1246 , ¶ 19, quoting Konesky v. Wood Cty.

2018Ochall v. McNamer , 2016-Ohio-8493 , 79 N.E.3d 1215 , ¶ 34 ; Morgan v. Kent State Univ. , 2016-Ohio-3303 , 54 N.E.3d 1284 , ¶ 12 ; Santho v. Boy Scouts of Am. , 168 Ohio App.3d 27 , 2006-Ohio-3656 , 857 N.E.2d 1255 , ¶ 12 (10th Dist.).

2018Morgan , 2016-Ohio-3303 , 54 N.E.3d 1284 , at ¶ 12 ; Santho v. Boy Scouts of Am. , 168 Ohio App.3d 27 , 2006-Ohio-3656 , 857 N.E.2d 1255 , ¶ 12 (10th Dist.). " 'To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.' " Horvath v. Ish , 134 Ohio St.3d 48 , 2012-Ohio-5333 , 979 N.E.2d 1246 , ¶ 19, quoting Konesky v. Wood Cty.

2018Morgan , 2016-Ohio-3303 , 54 N.E.3d 1284 , at ¶ 12 ; Santho v. Boy Scouts of Am. , 168 Ohio App.3d 27 , 2006-Ohio-3656 , 857 N.E.2d 1255 , ¶ 12 (10th Dist.). " 'To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.' " Horvath v. Ish , 134 Ohio St.3d 48 , 2012-Ohio-5333 , 979 N.E.2d 1246 , ¶ 19, quoting Konesky v. Wood Cty.

2011A federal court found, “The fact that the plaintiff is a prisoner at a federal institution does not work to alter the application of the assumption of risk doctrine.” Id. at 463 .

2005Rail Corp. v. Gottshall (1994), 512 U.S. 532, 542-543 , 114 S.Ct. 2396 , 129 L.Ed.2d 427 . {¶ 17} Although the FELA is not a workers’ compensation statute, in that some showing of fault is required, id. at 543 , 114 S.Ct. 2396 , 129 L.Ed.2d 427 , “the special features of this statutory negligence action * * * make it significantly different from the ordinary common-law negligence action.” Rogers v. Missouri Pacific RR.

2005Rail Corp. v. Gottshall (1994), 512 U.S. 532, 542-543 , 114 S.Ct. 2396 , 129 L.Ed.2d 427 . {¶ 17} Although the FELA is not a workers’ compensation statute, in that some showing of fault is required, id. at 543 , 114 S.Ct. 2396 , 129 L.Ed.2d 427 , “the special features of this statutory negligence action * * * make it significantly different from the ordinary common-law negligence action.” Rogers v. Missouri Pacific RR.

2005Co. (1990), 68 Ohio App.3d 460, 462 , 590 N.E.2d 1332 .

2005Co. (1990), 68 Ohio App.3d 460, 462 , 590 N.E.2d 1332 .

2003Plaintiff's second and third assignments of error concern the doctrine of primary assumption of risk, as a matter of law, and the trial court's application of this doctrine to a statutorily imposed duty and to the facts of the case. {¶ 30} Under R.C. 4511.21 (A), "[n]o person shall operate any motor vehicle * * * in and upon any street or highway at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead." In Pond v. Leslein (1995), 72 Ohio St.3d 50 , 52 , the court observed that "Ohio case law has consistently held that a person violates the a

2003Ctr. (2001), 142 Ohio App.3d 682 , 688 . {¶ 34} See, also, Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427 , 431-432 , reconsideration denied, 75 Ohio St.3d 1412 (discussion of primary assumption of risk).

2003Ctr. (2001), 142 Ohio App.3d 682 , 688 . {¶ 34} See, also, Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427 , 431-432 , reconsideration denied, 75 Ohio St.3d 1412 (discussion of primary assumption of risk).

2003Co. (2000), 88 Ohio St.3d 27 , 31 . {¶ 58} In this case, the uninsured coverage agreement of Marcum's automobile insurance policy provides that "[Colonial] will pay compensatory damages, including derivative claims, which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury suffered by an insured person." (Marcum Insurance Policy at 5.) {¶ 59} However, as discussed above, because plaintiff cannot establish the duty element of her negligence claim due to the application of the doctrine of primary assumption of risk, p