recreational activity doctrine in Ohio

2021In other words, “where injuries stem from ‘conduct that is a foreseeable, customary’ part of the [recreational] activity,’ the defendant ‘cannot be held liable for negligence because no duty is owed to -9- Case No. 8-20-44 protect the victim from that conduct.’” Ochall v. McNamer, 2016-Ohio-8493 , 79 N.E.3d 1215 , ¶ 41 (10th Dist.), Gentry v. Craycraft, 101 Ohio St.3d 141 , 2004-Ohio- 379, 802 N.E.2d 1116, ¶ 6 , quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104 , 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 , 983 N.E.2d 266 .

2019Union No. 14-04-32, 2005-Ohio-150, ¶ 10 , -13- Case No. 7-18-27 citing Gentry at ¶ 6, citing Thompson v. McNeill, 53 Ohio St.3d 102 (1990), paragraphs one and two of the syllabus, abrogated on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 . {¶22} “‘The rationale [for the recreational activity doctrine] is that certain risks are so inherent in some activities that the risk of injury is unavoidable.’” Ochall at ¶ 34 , quoting Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.1987). “‘[O]nly those risks directly associated with the

2021“The court must thus construe all evidence and resolve all doubts in favor of the non-moving party * * *.” Webster v. Shaw, 2016-Ohio-1484 , 63 N.E.3d 677 , ¶ 8 (3d Dist.). {¶15} Under the recreational activity doctrine, “individuals [who] engage in recreational or sports activities * * * 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), syllabus.

2021“The court must thus construe all evidence and resolve all doubts in favor of the non-moving party * * *.” Webster v. Shaw, 2016-Ohio-1484 , 63 N.E.3d 677 , ¶ 8 (3d Dist.). {¶15} Under the recreational activity doctrine, “individuals [who] engage in recreational or sports activities * * * 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), syllabus.

2021In other words, “where injuries stem from ‘conduct that is a foreseeable, customary’ part of the [recreational] activity,’ the defendant ‘cannot be held liable for negligence because no duty is owed to -9- Case No. 8-20-44 protect the victim from that conduct.’” Ochall v. McNamer, 2016-Ohio-8493 , 79 N.E.3d 1215 , ¶ 41 (10th Dist.), Gentry v. Craycraft, 101 Ohio St.3d 141 , 2004-Ohio- 379, 802 N.E.2d 1116, ¶ 6 , quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104 , 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 , 983 N.E.2d 266 .

2021In other words, “where injuries stem from ‘conduct that is a foreseeable, customary’ part of the [recreational] activity,’ the defendant ‘cannot be held liable for negligence because no duty is owed to -9- Case No. 8-20-44 protect the victim from that conduct.’” Ochall v. McNamer, 2016-Ohio-8493 , 79 N.E.3d 1215 , ¶ 41 (10th Dist.), Gentry v. Craycraft, 101 Ohio St.3d 141 , 2004-Ohio- 379, 802 N.E.2d 1116, ¶ 6 , quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104 , 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 , 983 N.E.2d 266 .

2021In other words, “where injuries stem from ‘conduct that is a foreseeable, customary’ part of the [recreational] activity,’ the defendant ‘cannot be held liable for negligence because no duty is owed to -9- Case No. 8-20-44 protect the victim from that conduct.’” Ochall v. McNamer, 2016-Ohio-8493 , 79 N.E.3d 1215 , ¶ 41 (10th Dist.), Gentry v. Craycraft, 101 Ohio St.3d 141 , 2004-Ohio- 379, 802 N.E.2d 1116, ¶ 6 , quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104 , 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 , 983 N.E.2d 266 .

2019Franklin No. 15AP-772, 2016-Ohio-8493, ¶ 34 , quoting Morgan v. Ohio Conference of the United Church of Christ, 10th Dist.

2019Union No. 14-04-32, 2005-Ohio-150, ¶ 10 , -13- Case No. 7-18-27 citing Gentry at ¶ 6, citing Thompson v. McNeill, 53 Ohio St.3d 102 (1990), paragraphs one and two of the syllabus, abrogated on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 . {¶22} “‘The rationale [for the recreational activity doctrine] is that certain risks are so inherent in some activities that the risk of injury is unavoidable.’” Ochall at ¶ 34 , quoting Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.1987). “‘[O]nly those risks directly associated with the

2019Union No. 14-04-32, 2005-Ohio-150, ¶ 10 , -13- Case No. 7-18-27 citing Gentry at ¶ 6, citing Thompson v. McNeill, 53 Ohio St.3d 102 (1990), paragraphs one and two of the syllabus, abrogated on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 . {¶22} “‘The rationale [for the recreational activity doctrine] is that certain risks are so inherent in some activities that the risk of injury is unavoidable.’” Ochall at ¶ 34 , quoting Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.1987). “‘[O]nly those risks directly associated with the

2019“It is clear that courts generally extend primary assumption of the risk to relieve liability of owners, operators, and sponsors of recreational activities.” Crace, 185 Ohio App.3d 534 , 2009-Ohio-6898 , at ¶ 20, citing Wilson v. Lafferty Volunteer Fire Dept., 7th Dist.

2010Rather, the court held that “being struck by a bicycle rider is not a foreseeable or customary risk of walking.” Moreover, the Tenth Appellate District recently acknowledged in Crace v. Kent State Univ., 185 Ohio App.3d 534 , 2009-Ohio-6898 , 924 N.E.2d 906, ¶ 21-26 , that despite its previous holding in Evans , based on the Ohio Supreme Court’s decision in Gentry v. Craycraft, 101 Ohio St.3d 141 , 2004-Ohio-379 , 802 N.E.2d 1116 , the defense of primary assumption of the risk can be applicable in cases where even a nonparticipant in a recreational or sports activity is injured. {¶ 15} Appella

2021“The court must thus construe all evidence and resolve all doubts in favor of the non-moving party * * *.” Webster v. Shaw, 2016-Ohio-1484 , 63 N.E.3d 677 , ¶ 8 (3d Dist.). {¶15} Under the recreational activity doctrine, “individuals [who] engage in recreational or sports activities * * * 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), syllabus.

2019Franklin No. 11AP-643, 2012-Ohio-1315 , ¶ 15, citing Schnetz v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 207 , 2011-Ohio-3927 , ¶ 47.

2019Union No. 14-04-32, 2005-Ohio-150, ¶ 10 , -13- Case No. 7-18-27 citing Gentry at ¶ 6, citing Thompson v. McNeill, 53 Ohio St.3d 102 (1990), paragraphs one and two of the syllabus, abrogated on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 . {¶22} “‘The rationale [for the recreational activity doctrine] is that certain risks are so inherent in some activities that the risk of injury is unavoidable.’” Ochall at ¶ 34 , quoting Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.1987). “‘[O]nly those risks directly associated with the

2019To be covered under the recreational activity doctrine, “‘the risk must be one that is so inherent to the * * * activity that it cannot be eliminated.’” Id., quoting Konesky v. Wood Cty.

2019Union No. 14-04-32, 2005-Ohio-150, ¶ 10 , -13- Case No. 7-18-27 citing Gentry at ¶ 6, citing Thompson v. McNeill, 53 Ohio St.3d 102 (1990), paragraphs one and two of the syllabus, abrogated on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 . {¶22} “‘The rationale [for the recreational activity doctrine] is that certain risks are so inherent in some activities that the risk of injury is unavoidable.’” Ochall at ¶ 34 , quoting Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.1987). “‘[O]nly those risks directly associated with the

2019Union No. 14-04-32, 2005-Ohio-150, ¶ 10 , -13- Case No. 7-18-27 citing Gentry at ¶ 6, citing Thompson v. McNeill, 53 Ohio St.3d 102 (1990), paragraphs one and two of the syllabus, abrogated on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 . {¶22} “‘The rationale [for the recreational activity doctrine] is that certain risks are so inherent in some activities that the risk of injury is unavoidable.’” Ochall at ¶ 34 , quoting Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.1987). “‘[O]nly those risks directly associated with the

2019“Whether a genuine issue exists is answered by the following inquiry: [d]oes the evidence present ‘a sufficient disagreement to require submission to a jury’ or is it ‘so one-sided that one party must prevail as a matter of law[?]’” Id., quoting Anderson at 251-252 . {¶20} We turn first to Whalen’s argument that the trial court erred by concluding that the recreational activity doctrine barred her negligence claims against T.J.

2019Union No. 14-04-32, 2005-Ohio-150, ¶ 10 , -13- Case No. 7-18-27 citing Gentry at ¶ 6, citing Thompson v. McNeill, 53 Ohio St.3d 102 (1990), paragraphs one and two of the syllabus, abrogated on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 . {¶22} “‘The rationale [for the recreational activity doctrine] is that certain risks are so inherent in some activities that the risk of injury is unavoidable.’” Ochall at ¶ 34 , quoting Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.1987). “‘[O]nly those risks directly associated with the

2003Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 , 570 N.E.2d 1095 , paragraph three of the syllabus (Celotex v. Catrett [1986], 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 , approved and followed). {¶ 9} Plaintiff first argues that the trial court erred in granting summary judgment to Vinch based on the recreational activity rule announced in Marchetti, supra. In Marchetti , the plaintiff brought a negligence claim against a neighborhood playmate who injured her while the two were engaged in a game of “kick the can” with other neighborhood children.

2003Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 , 570 N.E.2d 1095 , paragraph three of the syllabus (Celotex v. Catrett [1986], 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 , approved and followed). {¶ 9} Plaintiff first argues that the trial court erred in granting summary judgment to Vinch based on the recreational activity rule announced in Marchetti, supra. In Marchetti , the plaintiff brought a negligence claim against a neighborhood playmate who injured her while the two were engaged in a game of “kick the can” with other neighborhood children.

2003Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 , 570 N.E.2d 1095 , paragraph three of the syllabus (Celotex v. Catrett [1986], 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 , approved and followed). {¶ 9} Plaintiff first argues that the trial court erred in granting summary judgment to Vinch based on the recreational activity rule announced in Marchetti, supra. In Marchetti , the plaintiff brought a negligence claim against a neighborhood playmate who injured her while the two were engaged in a game of “kick the can” with other neighborhood children.

2003Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 , 570 N.E.2d 1095 , paragraph three of the syllabus (Celotex v. Catrett [1986], 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 , approved and followed). {¶ 9} Plaintiff first argues that the trial court erred in granting summary judgment to Vinch based on the recreational activity rule announced in Marchetti, supra. In Marchetti , the plaintiff brought a negligence claim against a neighborhood playmate who injured her while the two were engaged in a game of “kick the can” with other neighborhood children.