Ochall v. McNamer, 10th Dist. No. 15AP-772, 2016-Ohio-8493
Dec 29, 2016OUTCOME: win
Ochall v. McNamer, Franklin C.P. No. 14 CV 005498 (July 31, 2015); affirmed, Ochall v. McNamer, 10th Dist. No. 15AP-772, 2016-Ohio-8493. Plaintiff allegedly suffered a severe spinal cord injury afte ... r an eleven-year-old child struck her with a go-kart during a race with other children on a private backyard go-kart track. Plaintiff was standing near the edge of the track taking pictures of the children when this one child driver lost control. Plaintiff filed suit against: the couple who invited plaintiff to the event, the child, the child's parents, the track owners, and several companies which were alleged to have been involved in the track design or construction. Defendants successfully argued that this go-kart race was a recreational activity and thus, the the plaintiff's claim was barred by the doctrine of primary assumption of risk under Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116. At common law, a plaintiff’s assumption of the risk stood as an absolute bar to his recovery. Anderson v. Ceccardi, 6 Ohio St.3d 110, 451 N.E.2d 780 (1983). With the enactment of former R.C. 2315.19, Ohio's original comparative negligence statute, the defense of implied assumption of risk merged with the defense of contributory negligence. Anderson at syllabus. However, primary assumption of risk did not merge with contributory negligence. Gallagher v. Cleveland Browns Football Co, 74 Ohio St.3d 427, 431, 659 N.E.2d 1232 (1996). Primary assumption of risk arises where the defendant owes no duty to the plaintiff. It is a defense of extraordinary strength and it acts as a complete bar to a plaintiff’s recovery. Gallagher at 431.
