Milbert v. Wells Twp. Haunted House, Inc.

[Cite as Milbert v. Wells Twp. Haunted House, Inc., 2016-Ohio-5643.]

STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

ELIZABETH DANIELLE MILBERT, ) CASE NO. 15 JE 0023

)

PLAINTIFF-APPELLEE, )

)

VS. ) OPINION

)

WELLS TOWNSHIP HAUNTED )

HOUSE, INC., et al. )

)

DEFENDANTS-APPELLANTS. )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common

Pleas of Jefferson County, Ohio

Case No. 14-CV-443

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Scot McMahon

Balgo & Kaminski, L.C.

52171 National Road, Suite 4

St. Clairsville, Ohio 43950

For Defendants-Appellants: Atty. Gregory Beck

Atty. Andrea Ziarko

Baker, Dublikar, Beck, Wiley & Mathews

400 South Main Street

North Canton, Ohio 44720

JUDGES:

Hon. Carol Ann Robb

Hon. Cheryl L. Waite

Hon. Mary DeGenaro

Dated: September 2, 2016

[Cite as Milbert v. Wells Twp. Haunted House, Inc., 2016-Ohio-5643.]

ROBB, J.

{¶1} This is an appeal of the Jefferson County Common Pleas Court’s

decision denying the motion for summary judgment filed by the defendants Wells

Township Haunted House, Inc. and Wells Township Board of Trustees. The

township claims political subdivision immunity in the premises liability suit filed by the

plaintiff Elizabeth Milford. Specifically, the township asserts there was no evidence

its employees were negligent in performing the proprietary function of operating a

haunted house.

{¶2} However, in addition to operating the haunted house, the township

designed and constructed a swinging coffin ride which ejected the plaintiff after the

coffin lid opened prematurely. The township admitted this failure was due to a bolt

which became loose. The plaintiff submitted an affidavit wherein a safety consultant

opined the lid opening was foreseeable due to the use of an ungraded eye bolt and

the design by which the release mechanism traveled across the eye bolt securing the

lid. Reasonable minds could differ on the question of whether a township employee

negligently designed and constructed the ride which resulted in a hazardous

condition. Therefore, the trial court’s denial of the township’s request for summary

judgment is upheld.

STATEMENT OF THE CASE

{¶3} The township owned and operated a haunted house containing three

swinging coffin rides. The coffin rides were designed and constructed by the

township. Upon being led to the second floor of the house, two to three participants

would enter the ride by lying side-by-side in a large “coffin.” The lid was then closed

and secured via an eye bolt. The coffin was lowered through the floor by gravity to

the first floor. The ride ended with the coffin in an upright position, at which point a

ride operator was to open the lid. On October 19, 2012, the plaintiff was riding in a

coffin when the lid opened prematurely.

{¶4} On October 2, 2014, the plaintiff filed a negligence suit against the

defendants for injuries sustained when she fell from the coffin to the floor. The

complaint alleged the defendants: failed to use reasonable care to provide

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reasonably safe premises for its invitees; allowed a dangerous condition to exist due

to inadequate construction, design, and maintenance of the coffin ride; knew or

should have known a dangerous condition existed; and failed to warn of or correct

the danger. The answer asserted political subdivision immunity among other

defenses.

{¶5} On August 5, 2015, the defendants filed a motion for summary

judgment. They submitted the affidavit of the township’s police captain who was the

attraction’s director at the time of the accident. At that time, the haunted house was

run by the township’s recreational department and operated by volunteers. He

reported that Wells Township Haunted House, Inc. was not formed until a year after

the plaintiff’s accident; he is the agent of this non-profit corporation formed to help

local youth programs.

{¶6} The police captain attested the ride was inspected directly before and

after each ride, no defects or dangers were found prior to the plaintiff’s accident, and

neither the township nor its employees knew of any defects or dangers prior to the

accident. He noted there were no prior accidents in the weeks the ride had been

open, during which hundreds of daily participants experienced the ride. He explained

that an inspection conducted after the accident showed “a bolt was loosened slightly,

which caught on the lid as the ride was being released.”

{¶7} In seeking political subdivision immunity, the township’s motion for

summary judgment acknowledged: operation of the haunted house was a proprietary

rather than a government function; and there is an exception to immunity if the harm

was caused by the negligence of its employees in the performance of proprietary

functions. In arguing there was no negligence, the township argued it had no duty as

the injury was not foreseeable. The township urged there was no evidence it had

actual or constructive knowledge of the circumstances causing the lid to open

prematurely.

{¶8} Regarding Wells Township Haunted House, Inc., the motion asserted

the corporation should be dismissed from the lawsuit as it did not exist at the time of

the accident. In addition to the affidavit of the police captain explaining the

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corporation was formed subsequent to the accident; the articles of incorporation were

attached. The plaintiff’s response did not address the latter argument, but at the oral

hearing, plaintiff’s counsel agreed Wells Township Haunted House, Inc. could be

dismissed from the suit.

{¶9} On the topic of duty owed, the plaintiff agreed the township had the duty

to its invitees to exercise ordinary care in maintaining reasonably safe premises, to

warn of latent and hidden dangers of which it knew or should have known, and to

refrain from negligent activities. In countering the claimed lack of knowledge or

notice, the plaintiff pointed out the township designed and constructed the coffin ride,

knew how it worked, and knew the coffin’s release mechanism (which started the

ride) traveled across the eye bolt used to secure the lid. To the contrary, the plaintiff

could not know these facts as she was led to the second floor of a dark house and

placed in a coffin with no chance to study whether the safety devices were adequate.

The plaintiff concluded that factual questions clearly remained as to whether the lid

failure was foreseeable and the design/construction was negligent.

{¶10} The plaintiff submitted the affidavit of a safety analyst and consultant,

who explained he was a specialist on the safety and operation of amusement

attractions. He inspected the coffin ride and spoke to the police captain, who

designed the ride. The consultant opined the use of ungraded eye bolts in the design

and construction was negligent as graded eye bolts were needed for this type of load

bearing usage. He said it was foreseeable an ungraded eye bolt could lead to a lid

failure such as the one here. The consultant additionally opined it was negligent to

design and construct the ride so the release mechanism traveled across the eye bolt

securing the door. He concluded the township should have foreseen the release

mechanism could catch the eye bolt securing the door which would loosen it and

cause the lid to open.

{¶11} On September 22, 2015, the trial court denied the motion for summary

judgment, finding there remained genuine issues of material facts. The township filed

a timely notice of appeal. Although Wells Township Haunted House, Inc. is listed on

the brief as an appellant, they are not included in the notice of appeal which provides:

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“defendant, Wells Township Board of Trustees, hereby appeals [from the judgment]

“which denied defendant’s motion for summary judgment asserting immunity * * *.”

This may relate to assignment of error number two, which is discussed first.

ASSIGNMENT OF ERROR TWO: CORPORATE DEFENDANT

{¶12} The second assignment of error provides:

“THE TRIAL COURT ERRED BY FAILING TO DISMISS THE WELLS

TOWNSHIP HAUNTED HOUSE, INC. WHEN THE CORPORATION DID NOT EXIST

AT THE TIME OF THE ACCIDENT.”

{¶13} The township points to the undisputed affidavit explaining that Wells

Township Haunted House, Inc. did not exist at the time of the October 2012 accident

and the attached articles of incorporation showing this entity’s formation in June

2014. At the summary judgment hearing, the plaintiff agreed the township was the

appropriate party and the “corporation formed after this accident could be dismissed

from this lawsuit. It seems appropriate.” As no dismissal entry was thereafter filed by

the plaintiff and the trial court denied summary judgment without remedying this

issue, the township asks this court to dismiss Wells Township Haunted House, Inc.

as a party. Appellee’s response brief does not address this contention.

{¶14} An order denying a political subdivision the benefit of an alleged

immunity from liability is a final order. R.C. 2744.02(C). Although the denial of

summary judgment is not appealable in the standard case, the denial of summary

judgment can be appealed where it denies the political subdivision the benefit of

immunity. Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶

27. This is true even if the order makes no Civ.R. 54(B) determination where it would

otherwise be required. Sullivan v. Anderson Twp., 122 Ohio St.3d 83, 2009-Ohio-

1971, 909 N.E.2d 88, ¶ 12-13.

{¶15} However, an order denying a motion predicated on some other defense

does not deny the benefit of immunity and is not a final, appealable order even

though it arose along with a political subdivision's immunity claim. Riscatti v. Prime

Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶

19. For instance, the denial of a motion raising the statute of limitations for actions

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against a political subdivision was not immediately appealable by a political

subdivision even though it was appealed along with a judgment denying a motion

seeking immunity, which latter motion was immediately appealable. Id. at ¶ 12-14,

19-20.

{¶16} The only order subject to immediate appeal in this case was the one

denying the benefit of immunity. The court’s failure to address a request to dismiss

the corporate defendant, who did not exist at the time of the plaintiff’s injury, is not an

order denying the benefit of immunity. Even though the issue arose along with the

political subdivision’s immunity claim, it is not immediately appealable. We therefore

cannot address this issue at this time. This assignment of error is overruled.

{¶17} Before addressing the immunity assignment of error, we set forth the

general law applicable to this case.

GENERAL LAW: SUMMARY JUDGMENT & IMMUNITY

{¶18} Civ.R. 56 must be construed in a manner that balances the right of the

non-movant to have a jury try claims and defenses that are adequately based in fact

with the right of the movant to demonstrate, prior to trial, that the claims and defenses

have no factual basis. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850

N.E.2d 47, ¶ 11, citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986). Summary judgment can be granted when there remains no

genuine issue of material fact and when reasonable minds can only conclude the

moving party is entitled to judgment as a matter of law. Civ.R. 56(C).

{¶19} In determining whether there exists a genuine issue of material fact to

be resolved at trial, the court is to consider the evidence and all reasonable

inferences to be drawn from the evidence in the light most favorable to the non-

movant. See, e.g., Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883

N.E.2d 1060, ¶ 11. Doubts are to be resolved in favor of the non-movant. Leibreich

v. A.J. Refrig., Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993). A court “may

not weigh the proof or choose among reasonable inferences.” Dupler v. Mansfield

Journal Co., 64 Ohio St.2d 116, 121, 413 N.E.2d 1187 (1980).

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{¶20} The movant has the initial burden to show that no genuine issue of

material fact exists. Byrd, 110 Ohio St.3d 24 at ¶ 10, citing Dresher v. Burt, 75 Ohio

St.3d 280, 294, 662 N.E.2d 264 (1996). The non-moving party then has a reciprocal

burden. Id. The non-movant’s response, by affidavit or as otherwise provided in

Civ.R. 56, must set forth specific facts showing that there is a genuine issue for trial

and may not rest upon mere allegations or denials in the pleadings. Civ.R. 56(E).

{¶21} “The material issues of each case are identified by substantive law.”

Byrd, 110 Ohio St.3d 24 at ¶ 12. “Only disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Id., quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We consider the propriety of granting

summary judgment under a de novo standard of review. Comer v. Risko, 106 Ohio

St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.

{¶22} Political subdivision immunity involves a three-tiered statutory analysis

evaluating: (1) the general grant of immunity in division (A) of R.C. 2744.02; (2) the

exceptions in division (B) of R.C. 2744.02, which strip the political subdivision of

immunity; and (3) the defenses to liability, such as those in R.C. 2744.03, which

reinstate the stripped immunity. Elston v. Howland Local Schools, 113 Ohio St.3d

314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10-13. In general, “a political subdivision is

not liable in damages in a civil action for injury, death, or loss to person or property

allegedly caused by any act or omission of the political subdivision or an employee of

the political subdivision in connection with a governmental or proprietary function.”

R.C. 2744.02(A)(1).

{¶23} The pertinent exception to this general grant of immunity provides:

“political subdivisions are liable for injury, death, or loss to person or property caused

by the negligent performance of acts by their employees with respect to proprietary

functions of the political subdivisions.” R.C. 2744.02(B)(2). The parties agree the

operation of the haunted house involved a proprietary, rather than a government,

function. See R.C. 2744.01(G)(1)(b) (the function is not listed as a government

function and “is one that promotes or preserves the public peace, health, safety, or

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welfare and that involves activities that are customarily engaged in by

nongovernmental persons.”)

{¶24} The application of this exception is the sole issue in this case; the

question of whether the township was entitled to immunity depends upon whether an

employee negligently performed an act that caused the plaintiff’s injury. Essentially,

the issue is the same as is presented in a regular negligence case alleging premises

liability in the design, construction, and maintenance of a property feature.

{¶25} In order to prevail on a claim of negligence, the plaintiff must establish

the existence of a duty, the breach of that duty, and an injury proximately resulting

from the breach of duty. Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77,

472 N.E.2d 707 (1984). Under the law of negligence, a defendant's duty to a plaintiff

depends upon the foreseeability of injury to a person in the plaintiff's position and the

relationship between the parties. Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642,

645, 597 N.E.2d 504 (1992). Injury is foreseeable if a reasonably prudent person

would have anticipated an injury was likely to result from the performance or

nonperformance of an act. Menifee, 15 Ohio St.3d at 77. “Once the existence of a

duty is found, a defendant must exercise that degree of care which an ordinarily

careful and prudent person would exercise under the same or similar circumstances.”

Huston v. Konieczny, 52 Ohio St.3d 214, 217, 556 N.E.2d 505 (1990).

{¶26} When negligence is alleged in the context of premises liability, the

applicable duty is defined by the relationship between the landowner and the plaintiff,

such as invitee, licensee, or trespasser. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d

120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 10. A business invitee enters upon the

premises of another, by invitation, express or implied, for some purpose which is

beneficial to the owner. Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611

(1986) (whereas a licensee enters by permission or acquiescence for his own

pleasure or benefit without invitation).1

1 As the township recognizes, the plaintiff’s complaint says she was an invitee. Although the

township’s summary judgment motion set forth law on both an invitee and a licensee, the township did

not contest the plaintiff’s status as an invitee. Evidence attached to their motion shows the haunted house

invited participants to enter and charged admission for entry.

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{¶27} The premises owner or operator is not the insurer of an invitee’s safety.

Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203-204, 480 N.E.2d 474

(1985). The mere happening of an accident does not give rise to a presumption of

the owner’s negligence. Parras v. Std. Oil Co., 160 Ohio St. 315, 319, 116 N.E.2d

300 (1953).

{¶28} Still, business invitees are owed a duty of ordinary care in maintaining

the premises in a reasonably safe condition so they are not unnecessarily and

unreasonably exposed to danger. Paschal, 18 Ohio St.3d at 203. “[T]he obligation of

reasonable care is a full one, applicable in all respects, and extending to everything

that threatens the invitee with an unreasonable risk of harm.” Perry v. Eastgreen

Realty Co., 53 Ohio St.2d 51, 52, 372 N.E.2d 335 (1978) (“The obligation extends to

the original construction of the premises, where it results in a dangerous condition.”).

{¶29} The invitee has three alternative avenues of demonstrating a premises

liability negligence case: (1) the defendant or an employee negligently created the

hazard; (2) the defendant or an employee had actual knowledge of the hazard and

neglected to remove it promptly or give adequate warning of its presence; or (3) the

defendant or an employee had constructive knowledge of the hazard, such as where

it existed for a sufficient length of time to reasonably justify an inference that the

failure to correct the matter or warn against it was attributable to a want of ordinary

care. Anaple v. Standard Oil Co., 162 Ohio St. 537, 541, 124 N.E.2d 128 (1955).

See also Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589, 49 N.E.2d 925

(1943).

ASSIGNMENT OF ERROR ONE: IMMUNITY

{¶30} The first assignment of error contends:

“THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO FIND

WELLS TOWNSHIP BOARD OF TRUSTEES WAS IMMUNIE FROM APPELLEE’S

CLAIMS AND ENTITLED TO SUMMARY JUDGMENT WHEN TOWNSHIP HAD NO

NOTICE OF A DANGEROUS CONDITION ON ITS PROPERTY AND APPELLEE’S

ACCIDENT WAS UNFORESEEABLE.”

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{¶31} In discussing duty, the township says a reasonable person would not

have anticipated an injury was likely to result, stating “there is no duty to guard when

there is no danger reasonably to be apprehended.” See Hetrick v. Marion-Reserve

Power Co., 141 Ohio St. 347, 359, 48 N.E.2d 103, 109 (1943) (“Precaution is a duty

only so far as there is reason for apprehension.”). The township insists it was

unforeseeable that a bolt would become loose, asserting the imposition of liability in

this case would make the township the insurer of its property.

{¶32} The township asserts it only had a duty to conduct reasonable

inspections and points to its evidence that its employees inspected the coffin ride

between rides and found no defects. The township then states it had no duty to

inspect for a loose bolt after each ride. The township notes there were no previous

incidents regarding the ride. The township generally concludes there was no

employee negligence and claims the plaintiff cannot demonstrate the township had

superior, actual, or constructive knowledge of the circumstances causing the coffin lid

to open prematurely.

{¶33} Regarding the latter claim, the plaintiff emphasizes the township both

designed and constructed this ride and knew what safety mechanisms it chose to

employ in the design and construction. In viewing the design, the plaintiff urges one

can clearly see the release mechanism was built so that it travels across the eye bolt

which secures the lid. She points out that she was led into a dark room prior to being

put in the coffin and had no opportunity to protect against this danger. She

concludes foreseeability is a genuine issue of material fact.

{¶34} In the reply brief, the township suggests the safety consultant

improperly set forth an opinion regarding a legal standard and states the expert

cannot create a duty where none exists. The township focuses on the police

captain’s affidavit stating no defects were discovered in the inspections occurring

before and after every ride. The township characterizes this as a premises liability

case for failure to warn and suggests that negligent design and construction,

although alleged in the complaint, are not at issue because this is not a product

liability case.

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{¶35} However, a premises liability case is not limited in such fashion. A

proprietor’s duty to the invitee does not merely involve “a failure to warn against

latent defects of which the owner knew or should have known.” The cases applying

this language, preface the test with a statement such as: “due to a hazardous

condition not created by the proprietor or his employees * * *.” See, e.g., Presley v.

City of Norwood, 36 Ohio St.2d 29, 31, 303 N.E.2d 81 (1973) (emphasis added).

{¶36} For instance, where a defendant stacked up heavy wooden posts

without utilizing a restraining device to protect its invitees, it was emphasized that the

proprietor or his employee created the hazardous condition, as opposed to the typical

slip-and-fall case involving an evaluation of actual or constructive notice of a latent

defect not created by the proprietor. Kemper v. Builder's Square, Inc., 109 Ohio

App.3d 127, 136, 671 N.E.2d 1104 (2d Dist.1996). The Second District found

reasonable minds could reach different conclusions on whether the failure to employ

a restraining device (to prevent the posts from toppling onto an invitee) violated the

duty of ordinary care. Id. at 134-135 (“the alleged negligence was [the defendant's]

failure to employ any restraining device to prevent the four-foot posts on an upper

shelf from toppling forward and striking a customer, a reasonably foreseeable

contingency.”)

{¶37} The Tenth District has pointed out that if the defendant negligently

placed a doormat in a controversial position, the knowledge or notice options are

irrelevant (and established by the placement in any event). See, e.g., Tandy v. St.

Anthony Hosp., 10th Dist. No. 88AP-551 (Nov. 29, 1988), citing Stephens v. Akron

Palace Theatre, 53 Ohio App. 434, 437 (1936) (“as to defects in instrumentalities

furnished or maintained by the owner, his knowledge, actual or implied, is not a

necessary predicate of negligence on his part.”) In two Supreme Court cases, a

proprietor’s treatment of its floor (with a substance intended for the treatment of

floors) was not negligent by the mere application of the substance. See Boles v.

Montgomery Ward & Co., 153 Ohio St. 381, 92 N.E.2d 9 (1950); J. C. Penny Co. v.

Robison, 128 Ohio St. 626, 633-634, 193 N.E. 401 (1934). However, the plaintiff

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could have established a breach of the duty of ordinary care if there was some

indication the substance was improperly applied. See id.

{¶38} Where the hazard is created by a negligent act of the defendant or the

defendant’s employees, the actual or constructive knowledge options to premises

liability are irrelevant. See Anaple, 162 Ohio St. at 541 (whereas: if the defendant’s

act created the hazard but was not negligent or if a third person created the hazard,

then actual or constructive knowledge are required). The case law establishes that if

there is evidence the hazard was the result of a negligent act of the defendant or his

employee, then the defendant is not entitled to judgment as a matter of law on the

grounds that he lacked actual or constructive knowledge of the hazardous condition

that ended up resulting from the prior negligent act.

{¶39} The ride was designed to be used by invitees in a haunted house, and it

was used for the purpose constructed. An injury to a participant of such a ride was

foreseeable in the absence of a reliable mechanism to keep the lid shut during

movement and a design that would reasonably prevent that mechanism from failing.

The defendant had a “full” duty to exercise ordinary and reasonable care for the

protection of its invitees entering the premises. Perry, 53 Ohio St.2d at 52-53. One

aspect of that duty was to refrain from injuring a visitor as a result of the defendant’s

own negligent activities. Id. In designing and constructing the ride for use of its

invitees, the defendant was required to exercise the degree of care which an

ordinarily careful and prudent person would exercise under the same or similar

circumstances. See, e.g., Huston, 52 Ohio St.3d at 217.

{¶40} The affidavit submitted by the township stated that a loose bolt caught

on the lid as the coffin was being released; that inspections were conducted between

rides; and that no defects were discovered prior to the plaintiff’s accident. The

township’s affidavit made no mention of design and construction of this ride. The

affidavit submitted by plaintiff in response pointed out the township designed the ride

and constructed the ride. This case is not merely about a failure to notice a loose

bolt between rides. The township through its employee designed and constructed a

swinging coffin ride for haunted house participants to ride. In designing and

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constructing the ride to be used by its invitees, the township had the obligation to use

ordinary care in those initial stages of design and construction, not merely in the

operation of the ride later. Whether reasonable care was exercised in the design and

construction of the swinging coffin ride remains a question of material fact.

{¶41} In response to the request for summary judgment, the plaintiff

submitted the affidavit of a safety consultant who personally inspected the ride. He

provided some factual observations about the ride’s design and construction:

ungraded eye bolts were used instead of graded eye bolts; and the release

mechanism traveled across the eye bolt which secured the coffin lid. As to the initial

observation, the safety consultant opined that graded eye bolts were needed for load

bearing usage and it was foreseeable the use of ungraded eye bolts could lead to a

failure such as the one occurring here. He also expressed it was foreseeable, from

the designed path of travel, that the release mechanism could catch the eye bolt

which secured the door, loosen that bolt, and cause the lid to open.

{¶42} The affidavit raises a genuine issue of material fact as to whether the

ride was properly designed and constructed, an issue the township seems to avoid.

The affidavit outlined two perceived flaws in the ride’s design and construction.

Contrary to the township’s suggestion, the affidavit was not an improper attempt to

create a legal duty where none existed (merely because it used the word “negligent”

after describing the designed travel path and the use of ungraded eye bolts). See

Evid.R. 704 (testimony in the form of an opinion or inference otherwise admissible is

not objectionable solely because it embraces an ultimate issue to be decided by the

trier of fact).

{¶43} The plaintiff did not merely respond with an assertion that the ride failed

and thus there must have been negligence. Rather, it appears she provided some

evidence from which a reasonable person could conclude the design created an

unreasonable risk of harm to invitees. The failure of a hazard to manifest itself earlier

does not necessarily mean a ride was designed and constructed with ordinary care.

{¶44} In sum, this court finds the township failed to establish it was entitled to

judgment as a matter of law on the topic of whether there was negligence in the

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design and/or construction of the ride. We must view the evidence and all

reasonable inferences in the light most favorable to the plaintiff as the non-movant.

See, e.g., Jackson, 117 Ohio St.3d 328 at ¶ 11. Doubts must be resolved in favor of

the non-movant. Leibreich, 67 Ohio St.3d at 269. It appears reasonable minds could

differ as to whether the defendant exercised ordinary care in designing and building

this swinging coffin ride for the use of its invitees. This assignment of error is

overruled, and the trial court’s decision, denying the township’s motion for summary

judgment, is affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.