Bryan Zivich, A. Minor
| Decision Date | 18 April 1997 |
| Docket Number | 95-L-184,97-LW-1358 |
| Parties | BRYAN ZIVICH, A MINOR, et al., Plaintiffs-Appellants, v. MENTOR SOCCER CLUB, INC., et al., Defendants-Appellees, CASE |
| Court | Ohio Court of Appeals |
ATTY JAMES W. REARDON, 7864 Mayfield Road, Chesterland, OH, 44026,
ATTY GEORGE S. COAKLEY, 113 St. Clair Avenue, 7th Floor Cleveland, OH, 44114, For Plaintiffs-Appellants
ATTY. MURRAY K. LENSON, 900 Bond Court Building, 1300 East Ninth Street, Cleveland, OH, 44114, For Defendants - Appellees
DECISION
Plaintiffs-Appellants, Philip, Pamela and Bryan Zivich (the "Ziviches"), have appealed from summary judgment rendered against them in the Lake County Court of Common Pleas.
The facts giving rise to the appeal are undisputed. On October 7, 1993, little Bryan Zivich, then seven years old, was attending soccer practice on a make-shift soccer field in the outfield of a baseball diamond in Garfield Park, which is located within the city of Mentor, Ohio. Bryan's team won an intra-squad scrimmage, and he ran across the field to where his father, Philip Zivich, stood talking with the coach. Bryan jumped up, and hung on the cross-beam of the soccer goal at that end of the field. He swung back and forth a few times in celebration of his victory. The goal, which was not anchored down, tipped forward. Bryan fell, and the goal came down on top of his chest, breaking three of his ribs and a collar bone, and severely bruising his lungs.
On January 30, 1995, the Ziviches filed a complaint setting forth seven claims against defendant-appellee, the Mentor Soccer Club, Inc. ("Soccer Club"), a non-profit organization that sponsors a soccer league for local youth, defendant-appellee, the City of Mentor ("City"), which owns Garfield Park, and fifty John Does.[1] Philip and Pamela brought suit as next friends of their son, Bryan, seeking to recover for his physical injuries. The first claim was a count sounding in negligence. The second claim alleged that the defendants committed willful or wanton misconduct. The third, fourth, and fifth claims were a variety of products liability actions asserted against the unknown manufacturer and distributors of the soccer goal. The sixth alleged that the City allowed a dangerous condition to exist on public grounds in violation of R.C. 2744.02(B)(3). The seventh claim, which was brought by Philip on his own behalf, was a cause of action for negligent infliction of serious emotional distress.
After a period of discovery, the Soccer Club moved for summary judgment on July 26, 1995. The City also moved for summary judgment the next day. On November 16, 1995, the trial court granted both motions in a single judgment entry. First, the court held that Bryan was a recreational user of the park, and any claim against the City would be barred by R.C. 1533.18 et seq., the recreational user statute. Second, the court held that the City was entitled to sovereign immunity under R.C. 2744.02(A)(1). Lastly, Pamela Zivich, Bryan's mother, had signed a release that supposedly waived all claims for injuries resulting from Bryan's participation in the soccer league during the 1993 fall season. She filled out a registration form and paid the Soccer Club a $45 entrance fee as part of the process of enrolling Bryan in soccer that fall. The registration form contained a "release," or waiver of liability, which reads, in pertinent part, as follows:
"Recognizing the possibility of physical injury associated with soccer and for the Mentor Soccer Club, and the USYSA [United States Youth Soccer Association] accepting the registrant for its [sic] soccer programs and activities, I hereby release, discharge and/or otherwise indemnify the Mentor Soccer Club and the USYSA, its affiliated organizations and sponsors, their [sic] employees, and associated personnel, including the owners of the fields and facilities utilized by the Soccer Club, against any claim by or on behalf of the registrant as a result of the registrant's participation in the Soccer Club and/or being transported to or from the same ***."
The form bears Pamela's signature, and is dated May 6, 1993. The trial court held that this release barred the Ziviches' claims against both defendants.
The Ziviches timely filed a notice of appeal. Although the issue was not raised by the parties, we pause to sua sponte consider whether this judgment entry was a final, appealable order. The Ziviches sued not only the Soccer Club and the City, but also fifty John Does. It is clear from reading the complaint that the Ziviches sought to bring suit against any unknown persons within the Soccer Club or the City that could have been responsible for the purchase, installation, or maintenance of the soccer goals used in Garfield Park. Also, claims three, four, and five are not fairly applicable to the Soccer Club or the City. These actions are aimed at the manufacturer or distributer of the soccer goal that injured Bryan. There are no allegations, and there is no evidence, that the Soccer Club or the City designed or built the goal that injured Bryan.
Though the Soccer Club and the City have been granted summary judgment on those claims applicable to them, there has been no resolution of the other claims against the John Does, individual Soccer Club and City officials, and the manufacturer and distributors of the soccer goal. The trial court's judgment entry does not indicate that there is "no just reason for delay," which is the hallmark of a final order adjudicating fewer than all of the claims raised in a lawsuit under Civ.R. 54(B).
However, the Ziviches have not obtained service of process on any John Doe defendant pursuant to Civ.R. 3(A). Consequently, these claims have never duly commenced. Therefore, the trial court's order resolving the claims against the Soccer Club and the City did not leave behind unfinished business.[2] Under these circumstances, the judgment entry constitutes a final, appealable order. Drexler v. Greater Cleveland Regional Transit Authority (1992), 80 Ohio App.3d 367, 369.
Having confirmed that we have jurisdiction over this appeal, we now turn to the assignments of error. They are:
In their first assignment of error, the Ziviches argue that the trial court erred when it granted summary judgment based on the release signed by Pamela Zivich. The release purports to release the Soccer Club and the owner of the fields upon which it hosts activities, i.e., the City, from all liability that may result from injuries Bryan might receive while participating in soccer-related activities.
As a preliminary matter, we note that the release, as written and executed, does not apply to all of the claims in the complaint. It is settled that a release is only valid as to claims falling within its scope. Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 13 (); Okocha v. Fehrenbacher (1995), 101 Ohio App.3d 309, 318. Some of the claims appearing in the present complaint are beyond its reach.
First, the release in question does not bar the seventh claim, Philip's cause of action for negligent infliction of emotional distress. He did not sign the release. Although his wife, Pamela, signed the release, and thereby waived any claims she might derive from Bryan's injuries, a waiver of claims by one spouse does not extend to claims held by the other. Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84; Erie Ins. Group v. Wolff (1994), 94 Ohio App.3d 216. The trial court erred inasmuch as it relied upon the release to grant summary judgment to the appellees on this claim.
However, the court's judgment can be affirmed on the alternative ground that Philip has failed to adequately demonstrate a genuine issue of material fact on the question of whether his emotional injuries were severe enough to adequately state the cause of action. See Van Deusen v. Baldwin (1994), 99 Ohio App.3d 416, 420 ().
Ohio does recognize a cause of action for negligent infliction of serious emotional distress inflicted upon a bystander to an accident causing injury to another. Yet the emotional distress must be both severe and debilitating to be compensable. As stated in paragraph 3a of the syllabus of Paugh v. Hanks (1983), 6 Ohio St.3d 72:
When asked, at his deposition, how the accident involving his son had affected him, Philip testified that "it was the worst day of my life." However, the record is utterly devoid of any evidence tending to show that he was debilitated by the emotional distress; nor is there evidence suggesting that either he or a person normally constituted could not adequately cope with the distress engendered by the circumstances of this case. For failure of proof, then, summary judgment on Philip's claim was entirely proper.
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