Albright v. Eagles Nest Outfitters, Inc.

[Cite as Albright v. Eagles Nest Outfitters, Inc., 2020-Ohio-3046.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Peter Albright et al., :

Plaintiffs-Appellees, :

v. :

Eagles Nest Outfitters, Inc., :

No. 19AP-746

Defendant-Appellee, : (C.P.C. No. 18CV-02-1251)

and : (REGULAR CALENDAR)

Board of Education of the :

Dublin City School District,

:

Defendant-Appellant.

:

D E C I S I O N

Rendered on May 21, 2020

On brief: Allen Stovall Neuman Fisher & Ashton LLP,

Todd H. Neuman, and Jeffrey R. Corcoran, for appellees Tim

Albright, Cara Albright, and Peter Albright.

On brief: Raymond H. Decker, Jr., for appellant.

APPEAL from the Franklin County Court of Common Pleas

SADLER, P.J.

{¶ 1} Defendant-appellant, Board of Education of the Dublin City School District,

appeals from the decision and entry of the Franklin County Court of Common Pleas denying

its motion for summary judgment. For the reasons that follow, we affirm.

No. 19AP-746 2

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} In summer 2017, plaintiff-appellee Peter Albright was a rising sophomore at

Dublin Jerome High School in Dublin, Ohio. The morning of June 19, 2017, appellee

exchanged text messages with friends to see if anyone wanted to go enoing that afternoon.

"Enoing" or "hammocking" is an activity where the participants set up hammocks and

socialize. The group ultimately decided to go enoing in the wooded area behind Dublin

Jerome High School ("wooded area").

{¶ 3} The wooded area is part of the Dublin Jerome High School property and is

largely left undeveloped. In 2015, a bridge was constructed to facilitate access to the

wooded area. In 2017, a walking path was expanded in the woods for use as a cross-country

trail. Science teachers have regularly taken students in the wooded area as a part of

classroom activities. Through the course of discovery, it was determined that at least some

of the school board members and officials were aware of students enoing in the wooded

area.

{¶ 4} On June 19, 2017, appellee set up his hammock in what he considered a dense

area of the woods. At some point, more friends arrived, and one individual hooked his

hammock onto the same tree as appellee. The individual was in the hammock for only a

few moments when the tree collapsed. Appellee was struck by the tree causing severe injury

to appellee's back. Appellee was later transported to the hospital by ambulance and

diagnosed with six broken bones in his vertebra.

{¶ 5} On February 8, 2018, appellees filed a complaint against appellant and Eagles

Nest Outfitters, the manufacturer of the hammock. Appellant filed an answer with the trial

court on December 5, 2018.1 In its answer, appellant failed to include governmental or

recreational immunity as an affirmative defense. On July 9, 2019, appellant filed a motion

for summary judgment asserting governmental immunity under R.C. 2744.02 and

recreational immunity under R.C. 1533.181. On August 6, 2019, appellees filed a

memorandum contra arguing that appellant failed to assert governmental or recreational

immunity in its answer and therefore waived the affirmative defense. Appellee noted the

word "immunity" is not even used in the answer. (Aug. 6, 2019 Appellee's Memo. Contra

1Appellant argues that its answer was filed in March 2018 as evidenced by the certificate of service dated

March 8, 2018. Appellant contends that the answer was not docketed correctly due to a clerical error.

No. 19AP-746 3

at 8.) Appellees argued in the alternative that if appellant was able to assert the defense, it

was not entitled to immunity under either statute. A reply brief was filed on August 13,

2019. On September 4, 2019, Eagles Nest was dismissed with prejudice from this action.

{¶ 6} On October 2, 2019, the trial court issued its decision and entry denying

appellant's motion for summary judgment. The trial court did not address whether

appellant waived its right to assert immunity as a defense but concluded appellant was not

entitled to governmental immunity. The trial court reasoned "the construction and layout

of school grounds, choosing to leave a wooded area on the property and choosing to use it

for education and sports activities, was a discretionary choice. The choice not to remove

potentially hazardous trees from the woods was a maintenance decision and does not rise

to the level required for immunity." (Oct. 2, 2019 Decision & Entry at 7.)

{¶ 7} Appellant filed a timely appeal to this court.

II. ASSIGNMENTS OF ERROR

{¶ 8} Appellant assigns the following as trial court error:

[1.] The Trial Court Erred When it Denied Appellant's

Motion for Summary Judgment relative to Governmental

Immunity.

[2.] The Trial Court Erred When it Failed to Address

Appellant's Claim for Recreational Immunity in any regard.

III. STANDARD OF REVIEW

{¶ 9} Appellate review of summary judgment is de novo. Gabriel v. Ohio State

Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E.

Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When an appellate

court reviews a trial court's disposition of a summary judgment motion, it applies the same

standard as the trial court and conducts an independent review, without deference to the

trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One

Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992).

{¶ 10} Pursuant to Civ.R. 56(C), summary judgment is appropriate only under the

following circumstances: (1) no genuine issue of material fact remains to be litigated; (2) the

moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most

strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion,

that conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing

No. 19AP-746 4

Co., 54 Ohio St.2d 64, 66 (1978). "When seeking summary judgment on grounds that the

non-moving party cannot prove its case, the moving party bears the initial burden of

informing the trial court of the basis for the motion and identifying those portions of the

record that demonstrate the absence of a genuine issue of material fact on an essential

element of the non-moving party's claims." Lundeen v. Graff, 10th Dist. No. 15AP-32,

2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once the

moving party meets its initial burden, the nonmovant must set forth specific facts

demonstrating a genuine issue for trial. Dresher at 293.

IV. LEGAL ANALYSIS

{¶ 11} For clarity of discussion, we will address appellant's first and second

assignments of error together. Appellant argues the trial court erred in denying it

governmental immunity under R.C. 2744.02 and failed to consider whether appellant was

entitled to recreational immunity under R.C. 1533.181. Ordinarily, this court would review

properly preserved assignments of error considering whether appellant was entitled to

immunity under a de novo standard of review. Before undertaking a statutory immunity

analysis, however, we must examine the record to determine whether appellant preserved

immunity as an affirmative defense. For the foregoing reasons, we find that appellant

waived its right to assert either governmental or recreational immunity.

{¶ 12} "Under Ohio law, '[t]here are three ways to properly raise an affirmative

defense: (1) setting forth the defense in a prepleading motion pursuant to Civ.R. 12(B);

(2) affirmatively setting forth the defense in a responsive pleading pursuant to Civ.R. 8(C);

or (3) amending one's responsive pleading pursuant to Civ.R. 15 to include such a defense.' "

Brust v. Franklin Cty. Sheriff's Office, 10th Dist. No. 16AP-881, 2017-Ohio-9128, ¶ 19,

quoting Energy Wise Home Improvements, Inc. v. Rice, 7th Dist. No. 04-MA-178, 2005-

Ohio-2705, ¶ 21.

{¶ 13} This court has previously found that governmental immunity under R.C.

2744 provides a political subdivision with an affirmative defense. Ohio Bur. of Workers'

Comp. v. Shaffer, 10th Dist. No. 13AP-67, 2013-Ohio-4570, ¶ 12. Similarly, a political

subdivision may assert recreational user immunity under R.C. 1533.181 as an affirmative

defense. Brown v. Village of Lincoln Hts., 95 Ohio App.3d 149, 2011-Ohio-3551, ¶ 10 (1st

Dist.). The Supreme Court of Ohio has held that if a political subdivision fails to timely

No. 19AP-746 5

raise an affirmative defense, such as statutory immunity, the defense is waived. Supportive

Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-

2410, ¶ 19, citing Turner v. Cent. Local School Dist., 85 Ohio St.3d 95, 97-98 (1999).

{¶ 14} Ohio courts have regularly found that failure to timely raise immunity as an

affirmative defense constitutes waiver of the defense. See, e.g., Brown at ¶ 10 ("failure to

timely raise an affirmative defense, other than those listed in Civ.R. 12(B), either in the

answer or by amendment under Civ.R. 15 results in a waiver of the defense"); Eulrich v.

Weaver Bros., 3d Dist. No. 8-04-35, 2005-Ohio-5891, ¶ 13 (finding that the defendant

waived the affirmative defense of immunity by failing to plead the defense in its answer or

amended pleadings); Spence v. Liberty Twp. Trustees, 109 Ohio App.3d 357, 360 (4th

Dist.1996) (finding immunity under the statute was an affirmative defense that must be

pleaded or risk waiver of the defense); Reed v. Multi-Cty. Juvenile Sys., 7th Dist. No. 09

CO 27, 2010-Ohio-6602, ¶ 94 (concluding that employees were not entitled to summary

judgment having waived the defense of immunity by failing to raise it in their answer or

amended answer); Jontony v. Colegrove, 8th Dist. No. 98295, 2012-Ohio-5846, ¶ 16, 29

(affirming the decision of the trial court to deny the city leave to amend its answer to assert

immunity under R.C. 2744 reasoning a political subdivision should timely raise its

immunity defense to allow other litigants to devote its resources in litigating a case that is

potentially precluded by immunity); Carswell v. Akron, 9th Dist. No. 29321, 2019-Ohio-

4444, ¶ 13 (finding statutory immunity, including political subdivision immunity, is an

affirmative defense and must be asserted in a responsive pleading); Mossa v. W. Credit

Union, Inc., 84 Ohio App.3d 177, 181 (10th Dist.1992) (stating a political subdivision waives

its statutory immunity defense if it fails to timely raise the defense).

{¶ 15} The General Assembly intended the issue of immunity be resolved in the early

stages of the case in order to preserve resources for litigants:

"[D]etermination of whether a political subdivision is

immune from liability is usually pivotal to the ultimate

outcome of a lawsuit. Early resolution of the issue of whether

a political subdivision is immune from liability pursuant to

R.C. Chapter 2744 is beneficial to both of the parties. If the

appellate court holds that the political subdivision is immune,

the litigation can come to an early end, with the same outcome

that otherwise would have been reached only after trial,

resulting in a savings to all parties of costs and attorney fees.

No. 19AP-746 6

Alternatively, if the appellate court holds that immunity does

not apply, that early finding will encourage the political

subdivision to settle promptly with the victim rather than

pursue a lengthy trial and appeals. Under either scenario,

both the plaintiff and the political subdivision may save the

time, effort, and expense of a trial and appeal, which could

take years.

"* * * As the General Assembly envisioned, the determination

of immunity could be made prior to investing the time, effort,

and expense of the courts, attorneys, parties, and witnesses

pursuant to amendments made to R.C. 2744.02(C) and

2501.02."

(Emphasis sic.) Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, ¶ 25-26, quoting

Burger v. Cleveland Hts., 87 Ohio St.3d 188, 199-200 (1999) (Lundberg Stratton, J.,

dissenting).

{¶ 16} In the instant case, appellant has failed to assert either governmental or

recreational immunity as an affirmative defense in a prepleading motion to dismiss under

Civ.R. 12(B), a responsive pleading filed under Civ.R. 8(C), or by amendment under Civ.R.

15. Appellant raised immunity as a defense for the first time in its motion for summary

judgment. It is well established that an affirmative defense raised for the first time on

summary judgment is improper. Brust at ¶ 21; Midstate Educators Credit Union, Inc. v.

Werner, 10th Dist. No. 07AP-301, 2008-Ohio-641, ¶ 11 ("Ohio law prohibits a defendant

from asserting an affirmative defense for the first time in a motion for summary

judgment."). Because appellant has failed to timely assert immunity as an affirmative

defense, the defense is waived. Supportive Solutions at ¶ 19.

{¶ 17} Appellant argues it has not waived political subdivision immunity because

"defendants may wait to assert political subdivision status until [a] post-trial hearing."

(Appellant's Reply Brief at 2.) Appellant cites Jones v. MetroHealth Med. Ctr., 8th Dist.

No. 102916, 2017-Ohio-7329, to support its position that immunity can be resolved during

a post-trial proceeding.

{¶ 18} Appellant's reliance on Jones is misguided. In Jones, the Eighth District

Court of Appeals considered in part whether the trial court erred in holding a post-trial

hearing to determine the statutory offset, and the collateral source rule applies to a political

subdivision. The Jones court upheld the constitutionality of statutory cap on noneconomic

damages against political subdivisions and that the trial court did not err in conducting a

No. 19AP-746 7

post-trial hearing to determine the political subdivision's right to statutory offset under R.C.

2744.05.

{¶ 19} Jones is distinct from the present case as it does not concern whether a

political subdivision is immune from liability but the application of a political subdivision's

right to a statutory offset. "When a political subdivision is found liable to pay damages

caused by any injury resulting from an act or omission in connection with a governmental

or proprietary function, R.C. 2744.05(B)(1) permits the court to offset from those damages

future collateral benefits received by the claimant." Id. at ¶ 24. Concluding that Jones

stands for the proposition that a political subdivision may assert governmental or

recreational immunity for the first time during a post-trial proceeding to avoid liability

would contradict well-established precedent across Ohio. Considering all the above, we

find appellant's argument unpersuasive.

{¶ 20} Because appellant waived its right to assert governmental or recreational

immunity, we agree with the trial court's denial of appellant's motion for summary

judgment, albeit on other grounds. Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96 (1990)

("a reviewing court is not authorized to reverse a correct judgment merely because

erroneous reasons were assigned as the basis thereof"); O'Neal v. State, 10th Dist. No.

19AP-260, 2020-Ohio-506, ¶ 20 (an appellate court must affirm the trial court's judgment

if correct on other grounds). As such, we decline to resolve whether the trial court was

ultimately correct in concluding appellant was not entitled to statutory immunity. We find

the trial court did not err when it denied appellant's motion for summary judgment

regarding governmental or recreational immunity because appellant waived both theories

of statutory immunity by failing to timely assert either defense.

{¶ 21} Accordingly, appellant's first and second assignments of error are overruled.

V. CONCLUSION

{¶ 22} Having overruled appellant's first and second assignments of error, we affirm

the judgment of the Franklin County Court of Common Pleas on other grounds.

Judgment affirmed.

BROWN and KLATT, JJ., concur.

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