Miles v. Cummins

• Decision Date: 10 May 2021
• Docket Number: NO. 8-20-44,8-20-44
• Citation: 170 N.E.3d 971
• Parties: Brent MILES, et al., Plaintiffs-Appellants, v. Jayme CUMMINS, Defendant-Appellee.
• Court: Ohio Court of Appeals

170 N.E.3d 971

Brent MILES, et al., Plaintiffs-Appellants,

v.Jayme CUMMINS, Defendant-Appellee.

NO. 8-20-44

Court of Appeals of Ohio, Third District, Logan County.

Date of Decision: May 10, 2021

Stacey R. Pavlatos, Springfield, for Appellants.

Belinda S. Barnes and Robert J. Kidd, Columbus, for Appellee.

WILLAMOWSKI, P.J.

{¶1} Plaintiff-appellants Brent A. Miles ("Brent") and Chris Miles (collectively "the appellants") appeal the judgment of the Logan County Court of Common Pleas, alleging that the trial court erred in granting summary judgment for defendant-appellee Jayme Cummins ("Jayme"). For the reasons set forth below, the judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} On October 2, 2016, Jayme and her husband hosted a party at their house in Logan County, Ohio. Doc. 1, 13. Brent Deposition, 7. Brent was one of the individuals who was invited to this party. Doc. 12. While at this event, Jayme offered to give Brent a ride on her all-terrain vehicle ("ATV"). Jayme Deposition, 10. Brent then got onto the ATV behind Jayme. Doc. 1, 12. Brent Deposition, 56. Jayme told Brent to hold onto her as she drove. Brent Deposition, 107.

{¶3} Shortly after the ride began, Brent asked her to stop the ATV so that he could get a better grip on the ATV. Brent Deposition, 96, 108. In response, Jayme stopped the ATV, and Brent grabbed onto the ATV's fenders instead of holding onto Jayme. Brent Deposition, 96, 108. He later testified that he "trusted [his] grip there." Brent Deposition, 109. After Brent adjusted his grip, Jayme continued driving the ATV across her lawn. Brent Deposition, 109.

{¶4} As Jayme was driving the ATV, she drove over a "divot" in the ground. Brent Deposition, 53. Brent described what happened next as follows:

[W]e were going across the yard and hit some kind of little divot or something and then launched me off the seat. I left—I left—I was still hanging onto the fenders, but I left the seat, and my feet left the machine. And then when I landed back on the machine, I landed onto the seat, and then my foot landed in front of the foot peg or floor and then got trapped under the floor board and the ground.

Brent Deposition, 53. He then told Jayme to stop the ATV because he believed that he had been injured. Brent Deposition, 66.

{¶5} Jayme then stopped the ATV to check on Brent before she drove him back to the house. Jayme Deposition, 40. Brent Deposition, 66. Brent testified that the entire ride lasted five minutes "at the most * * *." Brent Deposition, 54. Jayme then took Brent to the emergency room where he was treated for a broken ankle and compression fractures in his lower back. Jayme Deposition, 33, 40. Brent Deposition, 31, 72.

{¶6} Subsequently, the appellants filed a complaint that alleged Jayme's negligent operation of the ATV caused Brent's injuries. Doc. 12. Jayme then filed a motion for summary judgment. Doc. 12. Subsequently, the appellants filed a notice of voluntary dismissal without prejudice pursuant to Civ.R. 41(A) on June 4, 2019. Doc. 12. On June 3, 2020, the appellants filed another complaint that initiated the action that is currently before this Court. Doc. 1. This complaint alleged that Jayme's reckless operation of the ATV caused Brent's injuries. Doc. 1.

{¶7} During the course of this litigation, both Brent and Jayme sat for depositions. At Brent's deposition, the following exchange occurred:

[Attorney:] So when she [Jayme] was operating the four-wheeler, how would you describe how she was driving?

[Brent:] Like you would a four-wheeler. She handled it well.

[Attorney:] Had she spun out of control?

[Brent:] No. She wasn't out of control.

[Attorney:] Was she driving it too fast for the conditions of the yard?

[Brent:] Didn't seem to be.

[Attorney:] What were the conditions of the yard? Was it wet?

[Brent:] No, no. Not that I remember.

* * *

[Attorney:] Okay. So what—just to be blunt about it—what, if anything, did my client do wrong when you were riding together?

[Brent:] Just ran over something that bucked me in the air.

[Attorney:] Did you notice anything in front of you that you were about to hit?

[Brent:] No, I didn't see anything.

[Attorney:] Was there any warning that you were about to be bucked into the air, as you say?

[Brent:] No.

(Emphasis added.) Brent Deposition, 56-57.

{¶8} Brent estimated that the ATV was going around thirty-five to forty miles per hour. Brent Deposition, 96, 111. He stated that he believed the speed the ATV was moving played a factor in his injury. Brent Deposition, 115, 118. He then gave the following testimony:

[Attorney:] Did you feel that [Jayme] was operating the vehicle safely for the terrain?

[Brent:] Not for the speed of where we were at.

[Attorney:] Okay. So it's your testimony that you were going too fast for the terrain?

[Brent:] On that area. The flat—there's two parts to that yard. And down at the bottom it was smooth, but when we came up to the top, we hit the rough. It was too fast for that.

[Attorney:] Did you ever tell her that she was going too fast when you changed different areas?

[Brent:] I didn't feel it until then.

* * *

[Attorney:] Did you ever ask her to slow down when you got into the different terrain?

[Brent:] I told her to stop once it happened.

[Attorney:] Okay. So you told her to stop after the injury had occurred?

[Brent:] Yes.

[Attorney:] But before that when you went off the straight-away and onto the different terrain did you ever ask her to slow down?

[Brent:] No.

[Attorney:] Did you ever tell her that you were scared?

[Brent:] No.

[Attorney:] Were you scared?

[Brent:] No.

[Attorney:] Did you ever feel you were in danger?

[Brent:] When you're going—not to that danger, no. I was enjoying the ride.

Brent Deposition, 119-120. However, he also stated that he did not believe that he had time to ask her to slow down. Brent Deposition, 121.

{¶9} Brent confirmed that he believed, at the time he got onto the ATV, that Jayme "would exercise care to keep [him] safe" as she operated the vehicle. Brent Deposition, 121. He further testified as follows:

[Attorney:] Do you think it's possible to ever eliminate the risk of an injury when you're riding on an ATV?

[Brent:] No.

Brent Deposition, 64. Brent also stated that the ATV appeared to have been "designed for two" riders and that "[t]he seat looked big enough for two" passengers. Brent Deposition, 52, 62. However, at this deposition, defense counsel presented Brent with a warning label from the ATV that stated "[n]ever carry passengers." Brent Deposition, 61. Ex. A. Brent testified that he did not see this warning label before he got onto the ATV. Brent Deposition, 64.

{¶10} At her deposition, Jayme testified that she had taken "safe riding courses through the State of Ohio." Jayme Deposition, 35. She also stated that she did not lose control of the ATV and did not operate the vehicle recklessly. Jayme Deposition, 29, 36, 38. Jayme testified that, before she reached the area where Brent was injured, she "slowed down and hit the brakes * * *" because she "was going to be making a turn so you slow down anyway when you're turning, and there was an unevenness so I didn't want to hit it really fast and hard." Jayme Deposition, 31. During the following exchange, Jayme testified about the speed she was going:

[Attorney:] How fast were you going when the incident occurred?

[Jayme:] There's no way to tell for sure, but I'm going to say 10, 15 mile an hour tops.

[Attorney:] How fast do you have to go to get into second gear?

[Jayme:] About 10, 15 mile an hour.

[Attorney:] And how long had you been riding before you entered into second gear?

[Jayme:] Maybe a 150 yards—200, 200 yards.

Jayme Deposition, 38-39. She further stated that, during this ride, Brent did not ask her to stop before his injury; did not tell her that she was driving too fast; and did not tell her that he was afraid. Jayme Deposition, 39.

{¶11} On June 23, 2020, Jayme filed a motion for summary judgment. Doc. 12. On July 16, 2020, the appellants filed a memorandum in opposition to Jayme's motion for summary judgment. Doc. 18. On August 5, 2020, the trial court granted Jayme's motion for summary judgment. Doc. 28.

Assignment of Error

{¶12} The appellants filed their notice of appeal on August 18, 2020. Doc. 33. On appeal, the appellants raise the following assignment of error:

The trial court erred in failing to recognize that the plaintiff/appellant bearing on the manner in which defendant/appellee operated her ATV was probative of her reckless misconduct and demonstrated that a genuine issue of material fact existed, thus precluding the granting of summary judgment in favor of the defendant/appellee.

Appellants argue that they produced evidence that established a genuine issue of material fact as to whether Jayme acted recklessly in operating the ATV.

Legal Standard

{¶13} Appellate courts consider a summary judgment order under a de novo standard of review. James B. Nutter & Co. v. Estate of Neifer , 3d Dist. Hancock No. 5-16-20, 2016-Ohio-7641, 2016 WL 6636380, ¶ 5. Under the Ohio Rules of Civil Procedure,

[s]ummary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. * * *. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor. * * *.

Civ.R. 56(C). "The party moving for summary judgment has the initial burden ‘to inform the trial court of the basis for the motion, identifying the portions of the record, including the pleadings...