Cameron v. Univ. of Toledo

• Court: Ohio Court of Appeals
• Writing for the Court: DORRIAN, J.
• Citation: Cameron v. Univ. of Toledo, 2018 Ohio 979, 98 N.E.3d 305 (Ohio App. 2018)
• Decision Date: 15 March 2018
• Docket Number: No. 16AP–834,16AP–834
• Parties: Kyle CAMERON, Plaintiff–Appellant, v. UNIVERSITY OF TOLEDO, Defendant–Appellee.

98 N.E.3d 305

2018 Ohio 979

Kyle CAMERON, Plaintiff–Appellant,

v.UNIVERSITY OF TOLEDO, Defendant–Appellee.

No. 16AP–834

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on March 15, 2018

On brief: Barone Law Offices, and Guy T. Barone, Toledo, for appellant. Argued: Guy T. Barone.

On brief: Michael DeWine, Attorney General, Christopher P. Conomy, and Emily Simmons Tapocsi, Columbus, for appellee. Argued: Emily Simmons Tapocsi.

DECISION

DORRIAN, J.

{¶ 1} Plaintiff-appellant, Kyle Cameron, appeals the November 1, 2016 decision of the Court of Claims of Ohio rendering judgment following trial in favor of defendant-appellee, University of Toledo (the "University"). For the following reasons, we affirm in part and reverse in part.

I. History

{¶ 2} This matter arises out of an incident that occurred on July 12, 2011. Prior to 2011, Cameron was recruited and offered a full athletic scholarship in his sophomore year of high school to play football for the University. After he was recruited, Cameron began weight training at the University under the direction of Rudy Wade, head strength and conditioning coach for the University's football team. In summer 2011, Cameron, as an incoming freshman, began training with the University's football team and took summer courses offered by the University.

{¶ 3} Beginning in June 2011, prior to the start of the academic year, all the University's football players, including incoming freshmen and upperclassmen, began a conditioning and training program at the University's football stadium and athletic facilities. The training program included weight training in the morning that was supervised by Wade, followed in the afternoon by a conditioning program referred to as "metabolics," which was supervised by upperclassmen. (Nov. 1, 2016 Decision at 1.)

{¶ 4} After the metabolics, all players departed for the day except for the offensive line players, who remained for what was referred to as "freshman Olympics" or the "O–line challenges." (Nov. 1, 2016 Decision at 2.) During the freshman Olympics, the freshman offensive line players would have to complete a series of activities as directed by the upperclassmen, who did not participate in the activities in anything other than a supervisory role. Some of the activities included a wheelbarrow race, dance contests, bear crawl, worm crawl, kicking or tackling a bag, and dunking a football above the crossbar of the goalposts.

{¶ 5} On July 12, 2011, following metabolics, the upperclassmen directed the freshman offensive line players to participate in the freshman Olympics. Cameron, who was a freshman offensive lineman but did not have an assigned spot on the team, participated. On that date, the upperclassmen instructed the freshmen to dunk a football above the crossbar of the goalposts. Following other players' attempts to dunk the football, Cameron jumped off a teammate's back, dunked the football, and then fell backward, landing on his head or neck. Cameron immediately began convulsing or seizing. Wade, who was present at the time of the incident, sent for John Walters, the football team's head athletic trainer. Walters found Cameron unconscious on the football field and instructed Billy Saul, a graduate assistant athletic trainer, to call 911. Cameron was taken by ambulance to the hospital. Allegedly, Cameron later learned he suffered brain damage, was no longer able to play football, and ultimately lost his scholarship.

{¶ 6} In 2013, Cameron filed a complaint in the Lucas County Court of Common Pleas alleging hazing, in violation of R.C. 2307.44, and negligence. That court dismissed the complaint, finding it lacked subject-matter jurisdiction. The judgment was affirmed on appeal by the Sixth District Court of Appeals. Cameron v. Univ. of Toledo , 6th Dist. No. L-13-1284, 2014-Ohio-5587, 2014 WL 7225544. In 2013, Cameron filed a complaint against the University only in the Court of Claims, which he voluntarily dismissed in 2014.

{¶ 7} On June 16, 2015, Cameron refiled a complaint against the University only in the Court of Claims alleging hazing, in violation of R.C. 2307.44, and negligence. On July 15, 2015, the University filed an answer. On December 14, 2015, the University filed a motion for leave to file amended answer. In its amended answer filed on the same date, the University asserted a statutory affirmative defense to Cameron's claim for hazing under R.C. 2307.44. The University asserted assumption of a known risk as an affirmative defense to Cameron's claim for negligence. On December 24, 2015, Cameron filed a memorandum in opposition to the University's motion for leave to file an amended answer. On February 4, 2016, the Court of Claims granted the University's motion for leave to file an amended answer.

{¶ 8} On March 21, 2016, the University filed a motion for partial summary judgment on the second cause of action. On March 25, 2016, Cameron filed a motion for summary judgment. On March 28, 2016, the University filed a motion for partial summary judgment on the first cause of action. Memoranda in opposition were filed as well as responses to the same.

{¶ 9} On June 7, 2016, the Court of Claims filed a decision finding that genuine issues of material fact remained on both of Cameron's claims and, therefore, denied Cameron's motion for summary judgment and the University's motions for partial summary judgment.

{¶ 10} Trial commenced on June 27, and ended June 29, 2016. On July 27, 2016, both Cameron and the University filed post-trial briefs. On November 1, 2016, the Court of Claims filed a decision rendering judgment in favor of the University.

II. Assignments of Error

{¶ 11} Cameron appeals and assigns the following four assignments of error for our review:

[I.] The trial court erred in holding that the affirmative defense of "actively enforcing a policy against hazing at the time the cause of action arose" applied in the instant case.

[II.] The trial court erred in holding that Cameron had failed to establish the required elements of hazing as set forth in the anti-hazing statute.

[III.] The trial court erred in holding that Cameron had failed to establish the required elements of his claim for negligence.

[IV.] The trial court erred in holding that Cameron's action was barred by the doctrine of primary assumption of the risk.

For ease of discussion, we consider Cameron's first and second assignments of error together and his third and fourth assignments of error together.

III. Standard of Review

{¶ 12} Cameron's assignments of error involve both issues of law and fact. In considering whether the trial court's decision was in accordance with law, our review is plenary. Cook v. Ohio Dept. of Job & Family Servs. , 10th Dist. No. 14AP-852, 2015-Ohio-4966, 2015 WL 7738415, ¶ 16, citing Bryant Health Care Ctr., Inc. v. Ohio Dept. of Job & Family Servs. , 10th Dist. No. 13AP-263, 2014-Ohio-92, 2014 WL 117424, ¶ 23 ; Reywal Co. L.P. v. Dublin , 10th Dist. No. 15AP-635, 2017-Ohio-367, 2017 WL 412804, ¶ 8, quoting Campbell v. Carlisle , 12th Dist. No. CA2009-05-053, 2009-Ohio-6751, 2009 WL 4895669, ¶ 10 (" ‘Interpretation of a statute is a matter of law and, thus, an appellate court must apply a de novo standard of review.’ "). However, when considering whether the evidence supports the trial court's findings, we apply a manifest weight of the evidence standard of review.

{¶ 13} " ‘Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.’ " Rosenshine v. Med. College Hosps. , 2012-Ohio-2864, 974 N.E.2d 692, ¶ 9, quoting C.E. Morris Co. v. Foley Constr. Co. , 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978). " ‘Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. * * * Weight is not a question of mathematics, but depends on its effect in inducing belief." ’ " (Emphasis omitted.) Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990). "Under the civil [manifest-weight-of-the-evidence] standard, examining the evidence underlying the trial judge's decision is a prerequisite to determining whether the trial court's judgment is supported by some competent, credible evidence." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 40. See also Eastley at ¶ 15 ("The phrase ‘some competent, credible evidence’ * * * presupposes evidentiary weighing by an appellate court to determine whether the evidence is competent and credible."). Accordingly, a reviewing court must weigh the evidence presented in the trial court.

{¶ 14} However, in weighing the evidence, we are mindful of the presumption in favor of the finder of fact. Id. at ¶ 21 ; Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984) (noting that a reviewing court gives deference to the finder of fact because "the [finder of fact] is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony"). " ‘ "If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment." ’ " Id. at ¶ 21, quoting Seasons Coal at 80, 461 N.E.2d 1273, fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at 191–92 (1978). "Thus, in reviewing a judgment under the manifest-weight standard, a court of appeals weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in the evidence, the finder of fact...