Opinion
2019-01190JD
12-08-2023
SHAE EICHELE Plaintiff v. CLEVELAND STATE UNIVERSITY Defendant
Robert Van Schoyck, Magistrate Judge.
DECISION
LISA L. SADLER, Judge.
{¶1} Plaintiff, Shae Eichele, brought this action alleging gross negligence/ recklessness and negligent hiring, supervision, retention, and training claims against Defendant, Cleveland State University. The case was tried before a Magistrate. On March 10, 2023, the Magistrate issued a Decision, in which he recommended judgment in favor of Defendant.
{¶2} Plaintiff timely filed her Objections to the Magistrate's Decision that are now before the Court for consideration. A full transcript of the proceedings has been provided. For the reasons set forth below, the Court overrules Plaintiffs Objections, in part, and sustains Plaintiffs Objections, in part.
Standard of Review
{¶3} "A party may file written objections to a magistrate's decision within fourteen days of the filing of the decision * * *." Civ.R. 53(D)(3)(b)(i). Objections "shall be specific and state with particularity all grounds for objection." Civ.R. 53(D)(3)(b)(ii). "An objection to a factual finding, whether or not specifically designated as a finding of fact * * *, shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding * * *." Civ.R. 53(D)(3)(b)(iii).
{¶4} The court "shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). In reviewing the objections, the court does not act as an appellate court but rather conducts "a de novo review of the facts and conclusions in the magistrate's decision." Ramsey v. Ramsey, 10th Dist. Franklin No. 13AP-840, 2014-Ohio-1921, ¶¶ 16-17. However, "[i]f an objecting party fails to submit a transcript or affidavit, the trial court must accept the magistrate's factual findings and limit its review to the magistrate's legal conclusions." Triplett v. Warren Corr. Inst, 10th Dist. Franklin No. 12AP-728, 2013-Ohio-2743, ¶ 13. "Whether or not objections are timely filed, a court may adopt or reject a magistrate's decision in whole or in part, with or without modification." Civ.R. 53(D)(4)(b).
Factual Background and Procedural History
{¶5} Plaintiff began cheerleading at a young age. Plaintiff participated in competitive cheerleading through high school and coached cheerleading and gymnastics for several years. Plaintiff suffered a left ankle injury in late 2011 while cheerleading, which resulted in surgery in 2012. After returning to competitive cheerleading later in 2012, Plaintiff reinjured her left ankle in 2015, which resulted in a second surgery. Plaintiff believed she regained full functionality in her ankle after the injuries but stated that she experienced intermittent pain.
{¶6} Plaintiff participated primarily as a flyer during competitive cheerleading, which is the role of top position during stunts, as opposed to bases who are positioned on the bottom. Some stunts require a flyer to be tossed in the air and caught by the bases. Stunts range in difficulty and the degree of risk a flyer experiences increases with more advanced stunts. While scaling back participation in competitive cheering, Plaintiff continued cheering on her high school team until her high school graduation in 2017. After high school graduation, Plaintiff enrolled at Cleveland State University and attended its cheerleading team tryouts. Defendant's cheerleading team performs modern cheerleading routines, which are akin to acrobatic sports because the routines include tumbling and stunting. Plaintiff successfully made Defendant's cheerleading team and attended an instructional camp with her teammates.
(Dr. Gerald S. George Trial Deposition Transcript, p. 14:1-7 ("Most people believe that cheerleading is, is nocuous at best and holds low risk. And this is true in its initial, original forms. But once cheerleading transitioned to what we call acro sport, which is tumbling and the lifting and turning of people in the air, it takes on a totally different profile.")).
{¶7} Defendant's cheerleading team was coached by Shelly Hanna, fka Richele Prest, from 2015 to 2021, which was a part-time job that supplemented her primary employment with cheerleading camps and apparel company, Varsity Brands. Hanna cheered in high school, including competitively, and cheered for five years at Kent State University during football and basketball games. She also cheered in a nationally competitive team. Prior to being hired by Defendant, Hanna taught cheerleading, including stunting, to young children up to high school and college students as a part of various cheerleading organizations. Hanna was hired after an interview process highlighting her background and experience by Defendant's athletic department administrators, including her supervisor, Assistant Athletic Director of Marketing and Promotions, Brandon Longmeier.
Hanna's surname was Prest during the events that comprise this case. The Court will use Hanna for consistency with the March 10, 2023 Decision of the Magistrate.
{¶8} Defendant's cheerleading team is comprised of volunteer non-varsity athletes, as the program is not recognized as a National College Athletic Association (NCAA) sport, but is supported by Defendant's athletic department. Defendant's sports medicine staff oversees general safety procedures within the athletic department, including Associate Head Athletic Trainer, Max Benton. Hanna was previously safety certified, but did not renew the certification and Defendant did not require the certification as part of her employment. While employed with Defendant, Hanna prioritized her training and experience in cheerleading and teaching over specific cheerleading safety programs and manuals, including American Association of Cheer Coaches and Administrators (AACCA) and NCAA.
{¶9} Upon being selected as a member of the cheerleading team, Plaintiff completed the required paperwork and medical "Pre-Participation Evaluation." Plaintiff self-reported her previous left ankle injuries, noting she had been instructed by her surgeon to always tape the ankle after the 2012 injury. Plaintiff also informed Hanna of her ankle injury history and her wishes to refrain from flying. Defendant had a physician review the medical forms and evaluate Plaintiff, who was then cleared to participate with the cheerleading team with no restrictions. Either Plaintiff or Benton would tape plaintiffs ankle prior to each practice.
{¶10} Plaintiff primarily served as a base on Defendant's cheerleading team, but did participate in different stunts as a flyer. In December 2017, Plaintiff was injured while participating as a flyer during practice, which resulted in her receiving x-rays, unrelated to her left ankle. The x-rays came back negative.
{¶11} The injury at issue here arose from a fall during a two-hour practice on January 10, 2018. In preparation for a halftime performance at an upcoming basketball game, the cheerleading team was practicing a rewind stunt, which is an advanced stunt. The rewind stunt involves two bases on the side and a spotter in the back with the flyer launched in the air to perform a backflip before being caught in a standing position by the bases.
{¶12} The team generally worked in stunt groups. Plaintiff throughout the season had been primarily a member of a stunt group as a base with Lindsay Arter as the other base, Katie Turocy as the spotter, and Bree Kovalkevich as the flyer However, at the January 10, 2018 practice, Hanna initially substituted Lexi Spraggins for Bree Kovalkevich as the flyer After failed attempts with Spraggins as the flyer, Hanna had Plaintiff substitute in as the flyer for Spraggins Plaintiff recalled telling Hanna that "if they drop me, this isn't going to end well for me," to which Plaintiff stated Hanna responded by grabbing the shoulders of the bases and saying "girls, don't drop her" Hanna also positioned additional spotters around the group After two unsuccessful attempts where Plaintiff fell on her knees on the mat, Plaintiff recalled Hanna demanding them to try again Hanna disputes she demanded Plaintiff to continue Arter, while her memory was foggy, concurred that Hanna was not demanding. On the third attempt, Plaintiff suffered the injury at issue when her left foot hit the mat and her taped left ankle rolled outward causing the ankle bone to hit the mat. Plaintiff recalled being in immediate pain and believed she had "blown out" her left ankle.
{¶13} Defendant filed a Motion for Summary Judgment, which the Court denied in its January 19, 2022 Entry. The Court determined that a genuine issue of material fact existed as to whether Plaintiff waived Defendant's liability under the Exit Appraisal Agreement and whether Plaintiff voluntarily assumed the risk of her injury. (January 19, 2022 Entry, pp. 5; 7).
{¶14} After presentation of evidence at the bench trial and post-trial briefing, the Magistrate held that Defendant was not liable for Plaintiff's injury. The Magistrate found that Defendant failed to meet its burden that Plaintiff did not abide by the Exit Appraisal Agreement and thus did not waive her claims against Defendant related to her cheerleading injury. (March 10, 2023 Decision of the Magistrate, pp. 27-28). The Magistrate concluded that the primary assumption of the risk doctrine applied to Plaintiffs injury because her risk of injury was inherent to cheerleading and, as such, Plaintiff could not recover unless her injury resulted from the recklessness of Defendant. (March 10, 2023Decision of the Magistrate, pp. 28-30). The Magistrate found Defendant's conduct did not rise to the high standard of recklessness. (March 10, 2023 Decision of the Magistrate, pp. 30-35). The Magistrate then extended his application of the doctrine of primary assumption of the risk and concluded that it barred Plaintiff from recovering on her negligence-based hiring, supervision, retention, or training claim. (March 10, 2023 Decision of the Magistrate, pp. 35-36).
Defendant did not file objections related to the Magistrate's finding that Plaintiff did not waive her claims.
{¶15} On March 15, 2023, Plaintiff filed a Request for Findings of Fact and Conclusions of Law pursuant to Civ.R. 52, Civ.R. 53(D)(3)(a)(ii), and L.C.C.R. 24(B)(1) prior to filing her Objections, which the Magistrate denied in his March 17, 2023 Order of the Magistrate stating that "the decision contains sufficient detail to allow plaintiff to frame objections and to allow the court to independently review those objections."
Plaintiff's Objections
{¶16} Plaintiff timely filed extensive objections, both enumerated and non-enumerated, to the Magistrate's Decision, including to the Magistrate's findings of fact and conclusions of law. In places, Plaintiff's Objections are both repetitive and not stated with particularity as required by Civ.R. 53(D)(3)(b)(ii). However, the Court will address what it can determine as specific objections stated with particularity.
{¶17} Initially, Plaintiff objects to the Magistrate's March 17, 2023 Order denying her Request for Findings of Fact and Conclusions of Law. Plaintiff then enumerates six objections, with subparts, to the Magistrate's findings of fact under "Summary of Objections to Findings of Fact," but adds a footnote stating "[additional and more particularized objections as to fact and law to the extent not included in the summary's non-exhaustive list are identified and outlined in the argument sections below." (Plaintiff's Objections, pp. 3-6; 3 fn. 2). Plaintiff enumerates six more objections to the Magistrate's findings of fact under "Summary of Objections to Critical Facts the Magistrate Failed to Consider," but adds the same footnote referenced above. (Plaintiff's Objections, pp. 6; 6 fn. 10). Plaintiff enumerates four objections to the Magistrate's conclusions of law under "Summary of Objections to the Magistrate's Conclusions of Law," again adding the same footnote referenced above. (Plaintiff's Objections, pp. 7-10; 7 fn. 17). Plaintiff also objects in separate subsections to the following: the Magistrates alleged disregard of her expert's, "Dr. Gerald George PhD," testimony (Plaintiff's Objections, pp. 18-19; 33-34); "Damages" (Plaintiff's Objections, pp. 25-27); the Magistrate's denial of Plaintiff's "Motion to Strike Testimony of Defendant's Liability Expert Nick Langenderfer" (Plaintiff's Objections, pp. 27-31); "the Magistrate Erred by Failing to Find Defendant's Admission Determined Liability" (Plaintiff's Objections, pp. 31-37); and the Magistrate's failure to find for Plaintiff on her "Negligent Hiring, Supervision and Training" claim (Plaintiff's Objections, pp. 17-18; 38-39).
March 17, 2023 Order of the Magistrate
{¶18} On March 15, 2023, Plaintiff timely filed her Request for Findings of Fact and Conclusions of Law pursuant to Civ.R. 52, Civ.R. 53(D)(3)(a)(ii), and L.C.C.R. 24(B)(1) in response to the March 10, 2023 Decision of the Magistrate. The Magistrate denied Plaintiff's request in his March 17, 2023 Order of the Magistrate. Plaintiff now objects to the Magistrate's Order concluding that the Decision contained "sufficient detail to allow plaintiff to frame objections and allow the court to independently review those objections." (Plaintiff's Objections, pp. 2-3, citing March 17, 2023 Order of the Magistrate).
{¶19} An objection is not the proper procedural method to challenge a magistrate's order. See Civ.R. 53(D). Objections are reserved for challenges to magistrate decisions. See Civ.R. 53(D)(3)(b). Rather, a motion to set aside is the proper way to challenge a magistrate's order. See Civ.R. 53(D)(2)(b). Because Plaintiff failed to file a proper motion to set aside, and instead challenged the March 17, 2023 Order of the Magistrate in her Objections, the Court OVERRULES as moot Plaintiffs objection related to the March 17, 2023 Order of the Magistrate.
Motion to Strike Testimony of Defendant's Liability Expert Nick Langenderfer
{¶20} Plaintiff alleges that the trial objection and motion to strike Defendant's expert Nick Langenderfer was timely and "Langenderfer completely failed to offer his alleged 'opinions' in this matter to a reasonable degree of certainty-or its equivalent." (Plaintiff's Objections, p. 29). Plaintiff did not object, however, to Langenderfer being considered an expert witness.
{¶21} During the trial, Defendant elicited the testimony of cheerleading expert, Nick Langenderfer. Langenderfer is a former collegiate cheerleader and collegiate cheerleading coach at the University of Toledo. Similarly situated to Defendant, University of Toledo, although a Division I NCAA university, does not sponsor cheerleading as an NCAA recognized varsity sport. At the conclusion of Langenderfer's testimony on direct and cross-examination, and after he was released as a witness, Plaintiff's counsel objected and moved to strike Langenderfer's testimony. After post-trial briefing, the Magistrate overruled the objection and denied the motion to strike deeming the motion to strike to be untimely under Evid.R. 103(A)(1) and because "the minimal opinion testimony by Langenderfer was expressed with sufficient certainty that it cannot be seen as mere speculation." (March 10, 2023 Decision of the Magistrate, pp. 22-23, fn. 2).
{¶22} The Court finds that Plaintiff did timely bring the trial objection and motion to strike pursuant to Civ.R. 103(A)(1) and that the Magistrate's reliance on Hyams is misguided. See generally Hyams v. Cleveland Clinic Found., 2012-Ohio-3945, 976 N.E.2d 297. In Hyams, a waiver of the admissibility of testimony occurred "under the specific facts of [that] case" because the issue was brought up only after the expert witness, who was testifying in person, returned to his residence that was out of state. Id. ¶¶ 19-20. Here, however, Defendant's expert was testifying via Zoom and could have been recalled had the objection been sustained at that time. Accordingly, Plaintiffs objection as to the timeliness of the trial objection is SUSTAINED.
{¶23} "Ohio courts require expert opinions in civil cases to rise to the level of probabilities before being admitted under Evid.R. 702." State v. Lang, 129 Ohio St.3d, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 81, citing Stinson v. England, 69 Ohio St.3d 451, 633 N.E.2d 532 (1994), paragraph one of the syllabus. Probability means "greater than fifty percent likelihood." See Stinson at paragraph one of the syllabus. Probability is a "condition precedent to the admissibility of expert opinion" and, as such, "relates to the competence of such evidence and not its weight." See Jeffrey v. Marietta Mem. Hosp., 10th Dist. Franklin Nos. 11AP-492, 11AP-502, 2013-Ohio-1055, 2013-Ohio-1055, ¶ 47, citing Stinson at 455. "The admissibility of expert testimony does not turn on an expert witness' use of particular 'magic words.'" See Claris, Ltd. v. Hotel Dev. Servs., LLC, 10th Dist. Franklin Nos. 16AP-685, 16AP-727, 2018-Ohio-2602, 104 N.E.3d 1076, ¶ 33, citing Rhodes v. Firestone Tire & Rubber Co., 10th Dist. Franklin No. 08AP-314, 2008-Ohio-4898, ¶ 11. But, when taken in its entirety, "the expert's testimony must equate to an expression of probability when viewed in its entirety." Id., citing Rhodes at ¶ 11; see also id., citing Shumaker v. Oliver B. Cannon & Sons, 28 Ohio St.3d 367, 369, 504 N.E.2d 44 (1986) ("Expert testimony that does not meet the probability threshold constitutes mere speculation.").
{¶24} Upon independent review of the evidence, Langenderfer's testimony was expressed via probability and not speculation. Langenderfer's limited expert testimony was elicited as an expert on coaching collegiate cheerleading programs. While absent of magic words of probability, the Court finds that Langenderfer's testimony ultimately shows an expression of probability on liability, specifically that Defendant's conduct cannot be deemed reckless as he saw no safety concerns within Defendant's cheerleading program. Accordingly, the Court OVERRULES Plaintiff's objection that the Magistrate erred by not striking Langenderfer's trial testimony.
Objections to Findings of Fact
{¶25} Plaintiffs objections regarding the Magistrate's findings of fact are based primarily on the Magistrate stating facts in a manner Plaintiff believes to be inaccurate. Plaintiff also believes the Magistrate "failed to consider" or "disregarded" many "critical facts."
The Court is basing its review of Plaintiff's Objections to findings of fact on the following sections of Plaintiff's Objections: "Summary of Objections to Finding of Fact" (Plaintiff's Objections, pp. 3-6; fn. 2-9); "Summary of Objections to Critical Facts the Magistrate Failed to Consider" (Plaintiff's Objections, p. 6 fn. 10-16; 6); "Dr. Gerald George, PhD," which is repeated in its entirety later in the Objections (Plaintiff's Objections, pp. 18-19; fn. 68-79; pp. 33-34; fn. 101-112).
{¶26} In his Decision, the Magistrate offered a summary of the facts presented at trial and referenced evidence he found credible and persuasive in his analysis of the legal issues. Findings of fact are inherently different than a summary of testimony. See State ex rel. Papin v. Huddle, 10th Dist. Franklin No. 76AP-470, 1977 Ohio App. LEXIS 8215, *4-5 (Nov. 29, 1977) ("Inasmuch as referee's findings * * * are essentially a summary of evidence, rather than findings of fact from the evidence, they are rejected by this court.").
{¶27} Upon independent review, the first twenty-seven pages of the March 10, 2023 Decision of the Magistrate are a summary of all witness testimony established by the parties for trial labeled "Summary of Testimony." The Magistrate's findings of fact appear in the "Law & Analysis" section beginning on page twenty-seven of the March 10, 2023 Decision of the Magistrate and "forms an adequate basis to decide" the narrow legal issues presented. See Slosser v. Supance, 10th Dist. Franklin No. 20AP-15, 2021-Ohio-319, ¶ 14 ("[I]f a review of the magistrate's decision recites the facts and legal conclusions and, when considered with the rest of the record, the decision forms an adequate basis to decide the issues on appeal, it substantially complies with Civ.R. 53."). A magistrate's decision can include all findings of fact and conclusions of law under a single heading as long as there is sufficient detail to frame objections and allow the Court to review them in the absence of separately captioned sections. See McNeilan v. Ohio State Univ. Med. Ctr., 10th Dist. Franklin No. 10AP-472, 2011-Ohio-678, ¶¶ 42-44.
As previously stated, objections "shall be specific and state with particularity all grounds for objection." Civ.R. 53(D)(3)(b)(ii). Although Plaintiff's "summary of objections" sections include subparts identifying individual issues with the Magistrate's summation of the facts, these subparts are largely one sentence statements or, in some cases, sentence fragments for which Plaintiff offers little argument or explanation. Under Civ.R. 53, "objections must be more than 'indirectly addressed': they must be specific." In re A.V., 10th Dist. Franklin No. 05AP-789, 2006-Ohio-3149, ¶ 22, quoting Young v. Young, 9th Dist. Summit No. 22891, 2006-Ohio-2274, ¶ 5.
{¶28} Plaintiff contends error with the Magistrate's subjective description of certain facts, and asserts the Magistrate fails to include specific facts in the analysis of his Decision. The Magistrate, as the trier of fact in a bench trial, is free to rely on the facts he deems most relevant and material to the issues at hand and free to disregard some evidence and rely on other evidence, in part, in whole, or any deviation in between. See Siegel v. Univ. of Cincinnati College of Med., 2015-Ohio-441, 28 N.E.3d 612, ¶ 12 (10th Dist.) (Any "suggestion that a magistrate * * * is incapable of deciding the facts and weighing the credibility of witnesses, lacks merit.").
{¶29} When a court independently reviews objections to a magistrate's decision, a court may give weight to a magistrate's assessment of witness credibility in view of a magistrate's firsthand exposure to the evidence. See id. "'Although the trial court may appropriately give weight to the magistrate's assessment of witness credibility in view of the magistrate's firsthand exposure to the evidence, the trial court must still independently assess the evidence and reach its own conclusions.'" Sweeney v. Sweeney, 10th Dist. Franklin No. 06AP-251, 2006-Ohio-6988, ¶ 15, citing DeSantis v. Soller, 70 Ohio App.3d 226, 233, 590 N.E.2d 886 (10th Dist.1990).
{¶30} Upon independent review of the evidence, it is apparent to the Court that the Magistrate considered and did not disregard the facts that Plaintiff draws issue to, rather the Magistrate reached a different conclusion, or applied a different weight to the facts, than Plaintiff wishes for purposes of a determination on her case. Accordingly, the Court OVERRULES Plaintiff's enumerated objections and subparts under the "Summary of Objections to Finding of Fact," "Summary of Objections to Critical Facts the Magistrate Failed to Consider," and "Dr. Gerald George, PhD" subheadings.
Objections to Conclusions of Law
{¶31} Plaintiff's objections related to the Magistrate's conclusions of law are based primarily on the Magistrate's analysis of assumption of the risk, both inherent and recklessness components, and negligent hiring, supervision, and training. Under Plaintiff's "Summary of Objections to the Magistrate's Conclusion of Law," she enumerates four specific objections where the Magistrate erred: (1) by finding that Plaintiffs injury was inherent to cheerleading; (2) in focusing on "[Plaintiff's actions and subjective knowledge related to Defendant's primary assumption of the risk defense" in the Summary of Testimony section of the Magistrate's Decision; (3) by finding that Defendant was not reckless; and (4) by assessing "Defendant's primary assumption of the risk defense under an implied or secondary assumption of the risk analysis that is not at issue in this matter." (Plaintiff's Objections, pp. 7-10). Plaintiff further objects that the Magistrate erred by not finding Hanna's testimony raised to the level of a judicial admission of liability in the subsection labeled "The Magistrate Erred by Failing to Find Defendant's Admission Determined Liability." (Plaintiff's Objections, pp. 31-38). Plaintiff also objects that the Magistrate erred by not finding Defendant negligently hired, supervised, and trained Hanna and the Magistrate erred by applying by extension the primary assumption of the risk analysis to this claim in the subsection labeled "Negligent Hiring, Supervision and Training." (Plaintiff's Objections, pp. 17-18; 38-39). The Court will handle these objections out of their presented order.
Judicial Admissions of Liability by Hanna
{¶32} Plaintiff contends that the Court needs to look no further than Hanna's testimony for evidence proving Defendant's recklessness in this case. (Plaintiff's Objections, pp. 27; 37 ("[W]hile there is a plethora of evidence of recklessness in this matter leading to [Plaintiff's] tragic injury, this Honorable Court need look no further than the admissions made, multiple times, by [Hanna] - and completely ignored by the Magistrate.")). Plaintiff believes the Magistrate erred by not finding parts of Hanna's testimony amounted to a judicial admission of liability for recklessness. (Plaintiff's Objections, pp. 31-38).
The March 10, 2023 Decision of the Magistrate does not specifically find portions of Hanna's testimony as a judicial admission or not.
{¶33} Plaintiff references specific portions of Hanna's trial testimony and argues that each portion constitutes judicial admissions of recklessness disregarded by the Magistrate. (Plaintiff's Objections, pp. 31-32, citing Trial Transcript, pp. 86:1-87:2; 91:13-93:16; 93:17-20; 96; 97-99; 698-703). Specifically, Plaintiff cites that Hanna's testimony elicits the following: Hanna agrees that it was not best practice for a cheerleading coach to have a cheerleader participate in a stunt if they do not want to participate (Trial Transcript, pp. 86:7-87:2); Hanna had prior conversations with Plaintiff regarding her injuries and knowledge that Plaintiff did not want to be a flyer (Trial Transcript, pp. 91:13-93:20); Hanna had Plaintiff step in as a flyer, but qualified that she did not order or demand Plaintiff step in (Trial Transcript, pp. 93:21-94:5); and Hanna agreed that placing Plaintiff in a position to perform a stunt she did not want to perform carried an increased risk, but later stated there is always risk when learning new skills. (Trial Transcript, pp. 98:24-99:4; 701:17-703:11).
{¶34} As it relates to testimony, "[a] judicial admission is a distinct and unequivocal statement, made by a party or a party's counsel during a judicial proceeding, which acts as a substitute for evidence at trial." In re Regency Vill., 10th Dist. Franklin No. 11AP-41, 2011-Ohio-5059, ¶ 32, citing Haney v. Law, 1st Dist. Hamilton No. C-070313, 2008-Ohio-1843, ¶ 7. Moreover, the statement must also be "by intention, an act of waiver relating to the opponent's proof of the fact, and not merely a statement of assertion or concession, made for some independent purpose." (Internal citations omitted) Cuckler v. Admr. Bur. of Workers' Comp., 4th Dist. Ross No. 16CA3551, 2017-Ohio-1469, ¶ 16, quoting Teagle v. Lint, 9th Dist. Summit No. 18425, 1998 Ohio App. LEXIS 1560, 11 (Apr. 15, 1998). "While a judicial admission may arise from a statement of material and competent fact, no such admission results from a statement of a legal conclusion." In re Regency Vill., at ¶ 32, citing Faxon Hill Constr. Co. v. United Brotherhood of Carpenters & Joiners, 168 Ohio St. 8, 151 N.E.2d 12 (1958), paragraph one of the syllabus; In re Teleglobe Communications Corp. 493 F.3d 345, 377 (3rd Cir.2007) ("'[Judicial admissions] must be statements of fact that require evidentiary proof, not statements of legal theories.'"); Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 394 (6th Cir.2007) ("statement did not constitute judicial admissions because they were 'statements regarding * * * interpretation of the law given the facts of the case.'").
As it relates to pleadings, "[t]o operate as a judicial admission, an allegation in a pleading must be an unequivocal allegation of a material and competent fact and not a meme statement of a legal conclusion." Faxon Hill Constr. Co. v. United Brotherhood of Carpenters & Joiners, 168 Ohio St. 8, 151 N.E.2d 12 (1958), paragraph one of the syllabus.
{¶35} Initially, the Court notes that judicial admissions have been found to amount to admissions of liability in negligence actions. See, e.g., Kennedy v. Univ. of Cincinnati Hosp., 10th Dist. Franklin No. 94API09-1333, 1995 Ohio App. LEXIS 1309 (Mar. 30, 1995). Plaintiffs reliance on Kennedy is misplaced as it is based on a judicial admission in a negligence analysis, in which the defendant in Kennedy conceded to negligence in a motion to vacate the trial date by stating "[t]he Defendant admits that its agents and/or employee fell below the requisite standard of care * * *." Id. at 5-6. Negligence based claims look directly at a defendant's deviation of a standard of care. See McNeilan, 2011 -Ohio-678, at ¶ 47, quoting Golec v. Fairview Gen. Hosp., 139 Ohio App.3d 788, 795, 745 N.E.2d 1082 (8th Dist.2000) ("'Where there is no deviation from the applicable standard of care, there can be no finding of negligence.'"). However, as will be discussed, Plaintiff's case requires a recklessness analysis, which is a higher standard than negligence. See Thompson v. McNeill, 53 Ohio St.3d 102, 104-105, 559 N.E.2d 705 (1990), abrogated on other grounds ("* * * not only that the conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent"). The Court cannot find, and Plaintiff did not cite, any cases where a judicial admission of liability was found in cases involving recklessness.
{¶36} The Court is not tasked with determining if recklessness can ever be found by judicial admission, but rather can recklessness be found in this case from Hanna's testimony. A recklessness analysis, which considers unreasonable risk under the circumstances, is less conducive to liability being established entirely from judicial admission during testimony. Because the analysis of recklessness incorporates the circumstances involved, the Court does not find that Hanna's testimony in this case constitutes judicial admission of recklessness, whether it be the portions cited by Plaintiff or Hanna's testimony in full. Moreover, Hanna's statements referenced by Plaintiff are not distinct and unequivocal statements. Hanna's testimony as a whole provides additional admissible evidence for the Court to weigh in making an overall determination on recklessness and is subject to interpretation. Plaintiff's concession in her Objections to Hanna "back pedaling on her admission" is indicative of the statement not being truly distinct and unequivocal. (See Plaintiffs Objections, p. 31). As such, the Court must review and interpret Hanna's entire testimony in context with the other admissible evidence to be weighed in this case.
{¶37} Upon independent review of the evidence, the higher standard of recklessness in this case is not proven by judicial admission from Hanna's testimony. Accordingly, the Court OVERRULES Plaintiffs objection that the Magistrate erred by failing to find Defendant's admission determined recklessness liability.
Primary Assumption of the Risk
{¶38} Ohio courts recognize three types of assumption of the risk defenses: express, primary, and implied. Ballinger v. Leaniz Roofing, Ltd., 10th Dist. Franklin No. 07AP-696, 2008-Ohio-1421, ¶ 6, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116, ¶ 11. "Whether to apply the defense of primary assumption of the risk presents an issue of law for the court to determine." Peterson v. Martyn, 10th Dist. Franklin No. 17AP-39, 2018-Ohio-2905, ¶ 31. "Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case." Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431-432, 659 N.E.2d 1232 (1996).
{¶39} Courts have recognized cheerleading as a sport or activity to which the primary assumption of the risk doctrine may apply. See Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906, ¶ 36 (10th Dist.); Wolfe v. AmeriCheer, Inc., 10th Dist. Franklin No. 11AP-550, 2012-Ohio-941, ¶ 14; Brown v. Harris, 2d Dist. Montgomery No. 27069, 2017-Ohio-2607, ¶ 21; O'Neill v. Univ. of Akron, Ct. of Cl. No. 2006-06795, 2009-Ohio-5456, ¶ 12. "Under the doctrine of primary assumption of the risk, 'a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.'" Al-Jahmi v. Ohio Athletic Comm., 10th Dist. Franklin No. 20AP-321, 2022-Ohio-2296, ¶ 64, quoting Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. Franklin No. 11AP-405, 2012-Ohio-453, ¶ 13.
{¶40} The doctrine of primary assumption of the risk extends to participants and non-participants alike, including, "to relieve liability of owners, operators, and sponsors of recreational activities." Ochall v. McNamer, 2016-Ohio-8493, 79 N.E.3d 1215, ¶ 35 (10th Dist.). The Tenth District Court of Appeals has "expressly held that negligent supervision is not an exception to the doctrine of primary assumption of the risk." Main v. Gym X-Treme, 10th Dist. Franklin No. 11AP-643, 2012-Ohio-1315, ¶ 15, citing Schnetz v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 207, 2011-Ohio-3927, 959 N.E.2d 554, ¶ 47 (10th Dist). As such, primary assumption of the risk can "relieve a university of liability based upon one of its coaches in a cheerleading practice." Crace at ¶ 26. Therefore, as in other cheerleading cases, the proper analysis determines first, if injury due to a fall is an inherent risk in cheerleading, and then, if so, did the coach act recklessly or intentionally. See, e.g., Crace at ¶ 27.
Inherent Risk & Gross Negligence/Recklessness
{¶41} Plaintiff concedes that cheerleading is a recreational activity, but asserts that the evidence supports the finding that Defendant acted recklessly and Plaintiffs risk of injury under Hanna's decision-making was not inherent to cheerleading. (Plaintiffs Objections, pp. 23; 36).
Plaintiff makes no objection that the Magistrate erred by failing to find Hanna acted intentionally, and independent review of the evidence does not show Hanna acted intentionally, so the Court's review is limited to recklessness.
{¶42} "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. Agricultural Soc, 164 Ohio App.3d 839, 2005-Ohio-7009, 844 N.E.2d 408, ¶ 19 (6th Dist). "The rationale is that certain activities present risks so inherent that the possibility of injury is unavoidable." Maiorana v. Walt Disney Co., 10th Dist. Franklin No. 20AP-207, 2021-Ohio-4530, ¶ 33. "Where the risk at issue is not inherent, then a negligence standard applies." Horvath at ¶ 19. For Defendant "[t]o succeed on a primary assumption of risk defense, it must be shown that: '(1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game." Al-Jahmi at ¶ 67, quoting Santho v. Boy Scouts of Am., 168 Ohio App.3d, 2006-Ohio-3656, 857 N.E.2d 1255, ¶ 12 (10th Dist.). Danger ordinary to a game is customary, and when a danger is foreseeable in a game there is common knowledge that it exists. Id. ¶ 67, citing Ochall at ¶ 42. Therefore, "ordinary or inherent risks of an activity 'are the foreseeable, common, and customary risks of the activity.'" Id. ¶ 67, citing Ochall at ¶ 43.
{¶43} Primary assumption of the risk is an objective "examination of the activity itself and not plaintiffs conduct." Crace at ¶ 16 citing, Gehri v. Capital Racing Club Inc., 10th Dist. Franklin No. 96APE10-1307, 1997 Ohio App. LEXIS 2527, 9-10 (June 12, 1997). However, implied assumption of the risk requires the court to engage in comparative fault analysis including subjective analysis of whether the injured participant "'consented to or acquiesced in an appreciated or known risk.'" Crace at ¶ 17, quoting Gentry at 144; Crace at ¶ 17, citing Gallagher at 432.
{¶44} As even Plaintiffs expert opined, risks, to a certain extent, are associated with any cheerleading maneuver. Plaintiffs expert further opined that fail safes are not always fully effective and, through learning cheerleading, stunts will be missed, and falls will occur. Defendant's expert concurred to these risks. Plaintiff argues that her expert witness opined to conditions that made the injury here not an inherent part of cheerleading. The Court disagrees.
{¶45} The Court finds that the conditions opined by Plaintiff's expert witness in this case are suited for the recklessness analysis and not the inherent risk analysis of primary assumption of the risk. Plaintiff's injury occurred due to a fall when performing a cheerleading stunt that involved flying and, upon independent review of the evidence, is foreseeable and customary in cheerleading and can happen in flying stunts, ranging from low level basket tosses to high level rewind stunts, whether safety precautions are in place or not. Although it can be managed by certain safety protocols and guidelines, the risk of injury is incapable of being eliminated, especially in college level cheerleading that involves flying. See, e.g., Crace at ¶ 31, citing Aaris v. Las Virgenes Unified School Dist, 64 Cal.App.4th 1112, 1115, 75 Cal.Rptr.2d 801 (1998). Upon independent review of the evidence, the Court determines that the risk of injury from falls during flying stunts is inherent to cheerleading.
{¶46} Plaintiff also alleges that the Magistrate erred in focusing on "[Plaintiff's actions and subjective knowledge related to Defendant's primary assumption of the risk defense" in the Summary of Testimony section of the Magistrate's Decision and erred by assessing "Defendant's primary assumption of the risk defense under an implied or secondary assumption of the risk analysis that is not at issue in this matter." (Plaintiff's Objections, pp. 7; 10). The Court disagrees. The Court finds that, although succinct, the Magistrate properly applied primary assumption of the risk. The Magistrate found that "[t]he risk of injury is inherent in cheerleading; the risk may be reasonably managed but cannot be eliminated," which examined the risk of injury in the activity of cheerleading, not Plaintiff's consent or appreciation of the risk. (March 10, 2023 Decision of the Magistrate, pp. 30). "[Plaintiff's] actual appreciation of the inherent risks is irrelevant to the primary assumption of the risk analysis." See Crace at ¶ 29.
{¶47} Discussion of Plaintiff's actions and subjective knowledge occurred in the analysis section when the Magistrate applied his findings of fact to the analysis of recklessness, which takes into account the circumstances of the incident. Moreover, even if the Magistrate erred in applying Plaintiff's subjective knowledge to a primary assumption of the risk analysis, the Court need not sustain Plaintiff's objections merely because the Magistrate used improper subjective evidence as a basis for an objective analysis determination. See id. ¶¶ 29-30. Rather, the Court must conduct its own independent evaluation of this issue resolved by the Magistrate.
The Magistrate's discussion of Plaintiff's actions and subjective knowledge related to the inherent risk of injury analysis occurred in the Magistrate's "Summary of Testimony," which as previously discussed were not the Magistrate's findings of fact.
{¶48} Upon independent review of the evidence, and in accordance with Al-Jahmi, the Court finds primary assumption of the risk applies to Plaintiff's risk of injury from falling in modern cheerleading because: (1) it is an ordinary danger in cheerleading; (2) it is common knowledge that falling occurs in cheerleading; and (3) Plaintiff's injury occurred during a cheerleading practice as a result of the danger of falling while practicing a cheerleading stunt. Accordingly, Defendant met the elements of primary assumption of the risk. As such, the Court's analysis turns to whether Defendant's conduct exhibited recklessness.
{¶49} "'Recklessness is a high standard.'" Lemaster v. Grove City Christian School, 10th Dist. Franklin No. 16AP-587, 2017-Ohio-8459, ¶ 10, quoting Lovegrove v. Stapleton, 2015-Ohio-1669, 32 N.E.3d 1001, ¶ 34 (2d Dist.). "Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct." Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph four of the syllabus. "Thus, an actor's conduct may be considered reckless when the actor '"does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,"' but also '"that such risk is substantially greater than that which is necessary to make his conduct negligent."'" Al-Jahmi at ¶ 100, quoting Marchetti v. Kalish, 53 Ohio St.3d 95, 96, 559 N.E.2d 699, fn. 2 (1990), quoting 2 Restatement of the Law 2d, Torts, Section 500 (1965). "While negligence consists of 'mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergence,' reckless misconduct 'requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.'" Id., quoting Marchetti at 100, fn. 3, quoting Restatement of Torts 2d at 590, Section 500, Comment g.
{¶50} Plaintiff's case draws similarities to Crace. Crace involved an injury to a cheerleading flyer at cheerleading practice at Kent State University during a stunt, known as the Big K, which had the highest degree of difficulty permitted in collegiate cheerleading. Crace at ¶¶ 2-7. Cheerleaders on the team involved in the stunt had varying levels of experience and expertise and some had performed the Big K before while others had never performed it nor seen it before the day of the injury. Id. ¶ 4. After failed attempts, a new spotter, who had never previously seen or participated in the stunt was subbed in, in which conflicting testimony was submitted as to whether the new spotter vocalized that he was uncomfortable with the stunt, but nonetheless participated in the stunt. Id. ¶¶ 5-7. The stunt failed and the plaintiff was severely injured. Id. ¶ 7. Each party presented expert testimony regarding modern day cheerleading. Id. ¶¶ 39-40. In Crace, the Tenth District Court of Appeals upheld this Court's application of the primary assumption of the risk doctrine to the facts in that case to bar plaintiff's claims against Kent State and held that Kent State's cheerleading coach was not reckless in conducting the practice. Id. ¶¶ 41-42.
{¶51} Plaintiff attributes recklessness on the part of Defendant through Hanna having Plaintiff fly in the rewind stunt. Plaintiff's expert, Gerald S. George, Ph.D., opined during trial deposition testimony to three areas of potential recklessness related to Defendant's cheerleading program: physical environment; performer readiness; and hiring, training, and supervision. Specifically, Dr. George stated four opinions. First, Dr. George stated that there were no issues with the physical environment of conducting the rewind stunt. Second, Dr. George stated that the cheerleading team, as a whole, lacked performer readiness to attempt the rewind stunt. Dr. George highlighted that the rewind stunt should have been conducted in a specifically defined group that had undertaken proper skill progression together. Third, Dr. George stated that Hanna did not possess the requisite skills, knowledge, and training to coach the rewind stunt. Dr. George highlighted Hanna's decision making on rewind stunt attempts as well as her unfamiliarity with some cheerleading terminology and safety organizations and rules. Fourth, Dr. George stated that Defendant's hiring, training, and supervisory plan were grossly inadequate. Ultimately, Dr. George opined that Defendant was reckless in attempting the rewind stunt causing Plaintiff's injury.
Dr. George is a former collegiate gymnast and coach, doctor in biomechanics, senior editor of the American Association of Cheer Coaches and Administrators (AACCA) Cheerleading Safety Manual, and former Director of Safety of the AACCA, among other notable endeavors in gymnastics and cheerleading. Dr. George was never a collegiate cheerleader or coach or conducted coaching hiring in a collegiate cheerleading program. Interestingly, but entirely unrelated to this case, Dr. George was also an expert witness in Crace.
{¶52} Defendant's expert, Langenderfer, ultimately opined that there were no safety concerns within Defendant's cheerleading program or its practice of the rewind stunt. Specifically, Langenderfer also found no issue with the physical environment. Langenderfer stated that progression of skills is necessary to any cheerleading team, both throughout the season and throughout individual practices, but collegiate cheerleading, balancing cheerleading with classes, requires cheerleaders to be able to perform the same skills with different people. Langenderfer stated that cheerleading practice is a time for skills to get better and some may not always land. Moreover, Langenderfer stated that a coach's role is to promote safety, but, if cleared to participate, encourage the participants to attempt new skills. Langenderfer held AACCA safety certifications while coaching at University of Toledo. Langenderfer did state, however, that while not required, it was industry standard to be AACCA safety certified as a collegiate head coach.
{¶53} Demonstrating recklessness is an onerous burden. The experts testified to the rules and customs of collegiate cheerleading. Cases that involve expert witnesses for both parties can lead to testimony where "[t]wo different experts gave different opinions and reasons to explain." See, e.g., Reinhardt v. Univ. of Cincinnati Medical Ctr., 10th Dist. Franklin No. 94API04-603, 1994 Ohio App. LEXIS 5554, 18 (Dec. 13, 1994). Plaintiff alleges that Defendant operated its cheerleading program recklessly because of overall deficiencies in safety practices.
{¶54} Defendant required cheerleaders, including Plaintiff, to try out and make the team, attend cheerleading camp that included learning safety procedures, and pass a pre-participation physical. Cheerleaders were assigned a highly regarded athletic trainer and the program was supervised by an assistant athletic director. Cheerleading practice was conducted on proper safety mats, with a coach present, which Defendant required for any stunts.
{¶55} Plaintiff entered Defendant's cheerleading program with years of experience in cheerleading, specifically as a flyer, but also with previous ankle injuries. Upon trying out and making the team, Plaintiff was primarily a base. However, Plaintiff was medically cleared to participate as cheerleader with no restrictions and admitted flying for Defendant on multiple occasions. Plaintiff participated on the cheerleading team as her pain allowed.
{¶56} Hanna was hired as head coach with experience as a cheerleader, also a flyer, and coaching experience, teaching, among other things, stunting and safety at cheerleading camps. Defendant required the cheerleading coach to have experience as a cheerleader or a coach as a qualification for the job. Hanna was also recommended by the previous coach. Defendant did not require Hanna to be safety certified, aside from CPR and first aid, and while she was not NCAA or AACCA certified, or admittedly knowledgeable, she substituted her prior experience as a cheerleader and cheerleading instructor.
{¶57} Plaintiff was injured at cheerleading practice on January 10, 2018, which was months after the team had formed during tryouts in July 2017. During the season, Plaintiff and Hanna discussed Plaintiffs wishes to refrain from flying. Despite these conversations, the evidence shows Plaintiff willingly filled in to fly on multiple occasions. Plaintiff participated as a flyer at the initial cheerleading camp, during the season, and during the practice where her injury occurred. Plaintiff points out that prior to the rewind stunt, her previous flying was in lower-level stunts. The rewind stunt here was the first time the team had progressed to the rewind stunt. However, the Court finds, upon independent review of the evidence, that Defendant's cheerleading team's skill progressions increased over the course of the season and Plaintiff willingly performed as a flyer on multiple occasions.
{¶58} Plaintiff, through Dr. George's testimony, alleged that the stunting group did not have proper performer readiness to perform the rewind stunt. While defined stunting groups throughout a season may be preferred, the evidence tends to show that for a number of reasons collegiate cheerleading necessitates learning stunts in alternating groups. The rewind stunt was done at the end of practice after appropriate progression. The Court finds that the Magistrate properly determined that, at that point in the season, the team had proper performer readiness, both on the season as a whole and at that practice, to move onto the rewind stunt, which was to close out their season. Moreover, Hanna brought in extra spotters during attempts of the rewind stunt in question.
{¶59} Plaintiff points to her own testimony that Hanna demanded Plaintiff to proceed with the rewind stunt that day and asserts that in and of itself placed Plaintiff in an increased risk of injury and to do so was reckless. The evidence shows that Plaintiff did not express an unwillingness to fly at the practice in question and she, in fact, had previously stepped in to perform as a flyer. The Court is not persuaded that just because the rewind stunt is a higher-level stunt it would become reckless to practice this stunt because, as previously discussed, any maneuver carries a risk of fall and injury; Plaintiff even fell and was injured, albeit minor, the month before this incident on a lower-level stunt. Because the evidence is disputed on whether Hanna demanded Plaintiff to fly in the rewind stunt so as to void Plaintiffs willing and voluntary participation in the stunt, whether Plaintiff was forced to perform the stunt ultimately can only be resolved by engaging in a credibility determination of the witnesses. Upon independent review of the evidence, the Court finds that the Magistrate properly determined Plaintiff was not forced to perform as a flyer in the rewind stunt at practice. Accordingly, Plaintiff willingly performed as a flyer in the rewind stunt.
{¶60} Plaintiff was cleared to fully participate with the cheerleading team. Even if this stunt was a higher level than previous flying that Plaintiff did with Defendant's cheerleading team, Plaintiffs injury occurred during cheerleading practice, while performing a recognized cheerleading stunt, in an atmosphere that is conducive to coaches and teammates encouraging an individual to attempt new skills for the benefit of the team. Given the circumstances of the cheerleading practice here, the Court finds that the Magistrate properly concluded that Plaintiffs statement that "if they drop me, this isn't going to end well for me" was not a request not to fly in the rewind stunt, nor did Hanna demand Plaintiff fly in the rewind stunt. The evidence does not show that Plaintiff was required to perform the rewind stunt or face some sort of repercussions nor does the evidence show Plaintiff could not have refused to perform the rewind stunt. Plaintiff ultimately participated in the rewind stunt on her own accord. The Court does not accept the argument that Plaintiff's statement, "if they drop me, this isn't going to end well for me," and Hanna not stopping the stunt, is enough to make her risk of injury not inherent to cheerleading or deem Hanna's conduct reckless.
{¶61} The Court further finds that the Magistrate did not err in concluding that "the greater weight of the evidence demonstrates that Hanna's conduct did not meet the high standard of recklessness." (March 10, 2023 Decision of the Magistrate, p. 35). Because the risk of injury from falling is an inherent risk in cheerleading, Defendant's actions did not create an unreasonable risk of harm to Plaintiff under the circumstances. Upon independent review of the evidence, Plaintiff did not prove by a preponderance of the evidence that, by substituting Plaintiff as the flyer, Plaintiff's risk of injury was not inherent to cheerleading or Defendant's conduct rose to recklessness. Accordingly, the Court OVERRULES Plaintiffs first, second, third, and fourth enumerated objections under the subsection titled "Summary of Objections to the Magistrate's Conclusion of Law."
Negligent Hiring, Supervision, Retention, and Training
{¶62} Plaintiff contends that the Magistrate erred by giving "short shrift to [Plaintiff's] negligent hiring, supervision and training claim and simply collapses it into and applies by extension his incorrect primary assumption of the risk analysis." (Plaintiff's Objections, pp. 17-18; 38-39).
{¶63} Elements of negligent hiring and supervision, which have also been applied to negligent training, are: "(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act causing the plaintiff's injuries; and (5) the employer's negligence in hiring or supervising the employee as the proximate cause of the plaintiff's injuries." Ford v. Brooks, 10th Dist. Franklin No. 11AP-664, 2012-Ohio-943, ¶ 22, citing Evans v. The Ohio State Univ., 112 Ohio App.3d 724, 739, 680 N.E.2d 161 (10th Dist. 1996).
{¶64} "An underlying requirement in actions for negligent hiring, supervision, and training is that the employee is liable for a tort or guilty of a wrong against a third party, who seeks recovery against the employer." Id., citing Strock v. Pressnell, 38 Ohio St.3d 207, 217, 527 N.E.2d 1235 (1988). However, successful application of primary assumption of risk "'completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.'" Al-Jahmi, 2022-Ohio-2296, at ¶ 64, quoting Morgan, 2012-Ohio-453, at ¶ 14, citing Crace, 185 Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906, at ¶ 15. This is because "the duty element of negligence is not established as a matter of law." Id., quoting Gallagher, 74 Ohio St.3d at 435, 659 N.E.2d 1232. In recreational activities, primary assumption of the risk has been found to preclude negligent supervision claims because "without a duty, there can be no liability for negligence." See Main, 2012-Ohio-1315 at ¶¶ 15-16.
{¶65} As previously discussed, the Magistrate properly applied the primary assumption of the risk analysis to the evidence presented in this case. Plaintiff failed to cite any case law to support her proposition that a negligent hiring, supervision, and training claim can survive in the context of a recreational activity in which primary assumption of the risk applies. The Court, therefore, follows the Tenth District's precedent in Main in finding that, under primary assumption of the risk, Defendant owed no duty to Plaintiff on negligence-based claims, such as a negligent hiring, supervision, retention, and training claim, when there is no finding of recklessness associated to Defendant, through Hanna or otherwise, based on the evidence presented. Accordingly, the Court OVERRULES Plaintiffs objection related to application of primary assumption of the risk barring her negligent hiring, supervision, and training claim.
Damages
{¶66} Because the Court has overruled Plaintiff's objections on liability, confirming the Magistrate's finding for Defendant on all claims, the Court OVERRULES as moot any objections related to damages and calculation of damages.
Conclusion
{¶67} Upon an independent review of the record pursuant to Civ.R. 53, and for the above stated reasons, the Court SUSTAINS Plaintiff's objection related to timeliness of trial objection to Defendant's expert's testimony and OVERRULES all other objections. The Court finds that primary assumption of the risk applies in this case and Defendant was not reckless.
{¶68} Accordingly, Judgment is rendered in favor of Defendant.
JUDGMENT ENTRY
IN THE COURT OF CLAIMS OF OHIO
{¶69} Upon an independent review of the record pursuant to Civ.R. 53, the Court finds that the Magistrate has properly determined the factual issues and appropriately applied the law with the exceptions noted in the Decision filed concurrently herewith. As such, the Court holds as follows: Plaintiffs objection related to timeliness of trial objection to Defendant's expert's testimony is SUSTAINED and all other objections are OVERRULED.
{¶70} Accordingly, the Court modifies and adopts the Magistrate's Decision and Recommendation, including findings of fact and conclusions of law contained therein, consistent with this Decision and Judgment Entry. Judgment is rendered in favor of Defendant. Court costs are assessed against Plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.