Ochall v. McNamer

• Decision Date: 29 December 2016
• Docket Number: No. 15AP–772.,15AP–772.
• Citation: 2016 Ohio 8493,79 N.E.3d 1215
• Parties: Andrea OCHALL et al., Plaintiffs–Appellants/Cross–Appellees, v. William M. McNAMER et al., Defendants–Appellees, Mark McMillen et al., Defendants–Appellees/Cross–Appellants.
• Court: Ohio Court of Appeals

79 N.E.3d 1215

2016 Ohio 8493

Andrea OCHALL et al., Plaintiffs–Appellants/Cross–Appellees,

v. William M. McNAMER et al., Defendants–Appellees,Mark McMillen et al., Defendants–Appellees/Cross–Appellants.

No. 15AP–772.

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

Dec. 29, 2016.

On brief: Kitrick, Lewis & Harris, Co. LPA, Mark Lewis, Mark Kitrick, and Elizabeth Mote, Columbus, for appellants. Argued: Mark Lewis.

On brief: The Carr Law Office, LLC, Adam E. Carr, Hudson, and Eric K. Grinnell, Middleburg Heights, for appellees William M. and Elizabeth McNamer. Argued: Adam E. Carr.

On brief: Lane Alton, Joseph A. Gerling, and Monica L. Waller, Columbus, for appellees/cross-appellants Sharon and Mark McMillen. Argued: Monica L. Waller.

On brief: Hollern & Associates, and Edwin J. Hollern, Westerville, for appellees James Porter and Jane Doe # 1. Argued: Edwin J. Hollern.

KLATT, J.

{¶ 1} Plaintiffs-appellants, Andrea Ochall, her husband Robert Ochall, and their two minor children, appeal from a judgment of the Franklin County Court of Common Pleas, granting the motions for summary judgment of defendants-appellees, Sharon and Mark McMillen, James Porter and his minor daughter, Jane Doe, and William and Elizabeth McNamer ("Liz"). For the reasons which follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On May 23, 2014, appellants filed a complaint against the McNamers, the McMillens, Porter, Doe, McMillen Paving and Sealing, Inc. ("MP & S"), and McMillen Paving, Inc. The complaint asserted claims for negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium. The events giving rise to the complaint occurred on September 20, 2013, when Mrs. Ochall was seriously injured while watching a go-kart race on the McMillens' property.

{¶ 3} On the day of the incident, the McNamers had invited the Ochalls to their home in Hilliard, Ohio, for the purpose of using the go-kart track located on the McMillens' property. The McNamers and the McMillens are next-door neighbors and very good friends. Liz McNamer and Robert Ochall are co-workers, and Liz McNamer had previously invited the Ochalls over to use the McMillens go-kart track in 2011. The Ochall family, both the adults and their two children, drove go-karts on the McMillens' track during their visit in 2011. The Ochalls, however, had never met the McMillens before filing the present lawsuit.

{¶ 4} The McMillens' son, Brian McMillen, with assistance from his younger brother Scott, constructed the go-kart track in the McMillens' backyard between 1994–1995, when Brian was between the ages of 18 and 19–years–old. The McMillens own and operate a paving and sealing company, MP & S. Brian is now the vice president of MP & S, but was not when he originally constructed the track.

{¶ 5} Brian and his brother built the track in their spare time, and used some company equipment to build it. The McMillens routinely used company equipment on their home projects. Brian explained that the track "basically is a twisted up driveway." (Jan. 5, 2015 Brian McMillen Dep. at 62.) The McMillens have never charged anyone money to use the track and they do not operate the track commercially, it is something they simply use "to [their] liking." Id. at 88.

{¶ 6} Although the McNamers and the McMillens are close friends, the McNamers would always ask the McMillens for permission before bringing guests over to use the track. Thus, prior to the Ochalls' 2013 visit, Liz McNamer asked the McMillens if they could bring the Ochalls over to use the track. The McMillens said yes, and Mark McMillen opened the McMillens' barn and prepared the go-karts for the group's use.

{¶ 7} The McMillens own five go-karts and the McNamers own one go-kart, but the go-karts are all the same make and model. Brian McMillen purchased all the go-karts from the same vendor shortly after he constructed the track, and the McNamers paid the McMillens directly for their one go-kart. Brian explained that he selected these specific go-karts because he "didn't want to go so fast out there" so that people would "need helmets." Id. at 109. Brian noted that the go-karts have "a bumper, * * * a full harness and had a roll cage," and could reach a maximum speed of 28 miles per hour. Id. Brian also noted that he could not "recall whether or not we actually got a manual for the karts," noting that he did not "remember even seeing a manual." Id. at 115. The go-karts all have stickers on the back which advise the drivers that there is no bumping.

{¶ 8} The McMillens store their go-karts in their barn, and there is a paved driveway which connects the barn to the track. The driveway connects with the track at the track's start/finish line. Porter explained that people would generally congregate on the paved area next to the start/finish line in order "to trade positions with the drivers or to watch people driving by." (Dec. 30, 2014 James J. Porter Dep. at 41.) Liz McNamer stated that she "always stood" on the paved area near the start/finish line when she was at the track. (Feb. 10, 2015 Elizabeth G. McNamer Dep. at 56–57.) Mrs. Ochall stated that, during her visit in 2011, she was "instructed to stand in that—that particular area" by Liz McNamer. (Dec. 4, 2014 Andrea L. Ochall Dep. at 29.) No one told Mrs. Ochall where to stand during the 2013 visit. Id. at 135–36.

{¶ 9} Brian McMillen testified that he designed the track "not to have any spectators." (B. McMillen Dep. at 168.) Brian explained that, when he took "people out there, that's part of my deal: Stay up in the barn until you come up and get in a kart." Id. at 175. He also noted that anyone at the track had to "be aware. You've got cars going around the track. You have to be aware that that's an issue." Id. Mark McMillen had placed a bench at the back edge of that paved area next to the start/finish line. Brian explained that the bench was "by no means a bleacher," as it was there simply for drivers to rest on between and after races. Id. at 170–71.

{¶ 10} There are no barriers around the McMillens' go-kart track, only painted edge lines. Brian McMillen explained that he purposely did not construct barriers because barriers "would just be something for a kart to hit," and would "give a much greater probability of making a car go airborn and possible flipping." Id. at 168, 232. Accordingly, when driving on the McMillens' go-kart track, "there are times you go off the track on a turn or you veer off for some reason or another. * * * And that happens regularly." (J. Porter Dep. at 38.) Liz McNamer noted that she "went off into the grass" the first time she drove on the track. (L. McNamer Dep. at 40, 42.) She explained that it was "safe" for a driver to "go off the track and come back on." Id. at 108–09. Porter noted that he had seen go-karts go off the track on the "big turns, * * * on the little turns, * * * on the straightaways," and specifically stated that he had seen go-karts go off the track "coming out that final turn into the start/stop" area. (J. Porter Dep. at 38–39; 45–46.)

{¶ 11} On the day of the incident, the Ochalls arrived with their two minor children, and two of their children's friends. The McNamers' son-in-law, Porter, was also present with his daughter, and the McNamers' granddaughter, Doe. Doe was 11 years old; the Ochall children and their friends were all 13 years old. The group met at the McNamers' house, and walked through the adjoining backyards to the McMillens' go-kart track. The McMillens were not present at the track; Sharon McMillen was at the grocery store and Mark McMillen was inside his home watching a football game.

{¶ 12} Liz McNamer gave the group instructions regarding how to operate the go-karts, telling them, "the gas was on one side, the brake was on the other, the steering wheel." (L. McNamer Dep. at 103.) Liz McNamer observed the children as they drove, noting that "[t]hey seemed to be doing pretty well. They seemed like they were able to manage going around the track." Id. at 106. Liz McNamer noted that she watched the children driving to make sure that no one was "at risk," and noted that she "didn't see that." Id. at 117.

{¶ 13} There were more people than go-karts during the 2013 event, so both the adults and the children rotated using the go-karts throughout the day. As was typical at the McMillens' track, multiple drivers drove off the track that day. Doe's go-kart came all the way off the track and went into the grass, and Porter's go-kart came partially off the track. One of the Ochall children drove off the track, "[a]ll four wheels were off the track," and Porter "had to push him out." (J. Porter Dep. at 93, 95–96.) Liz McNamer stated that she "observed that day each child went off the track at some capacity." (L. McNamer Dep. at 109.) Liz McNamer testified that, when Doe's go-kart left the track earlier in the day, she spoke to her granddaughter and "cautioned her and advised her just to be careful. The ground was pretty saturated. * * * There was water standing, so I just wanted her to be aware and, you know, just cautioned her." (L. McNamer Dep. at 129.)

{¶ 14} Mrs. Ochall was aware that there were "no barriers, there's no safety barriers" around the track. (A. Ochall Dep. at 137.) Mrs. Ochall also witnessed go-karts driving off the track on the day of the incident, and admitted that she knew "that [a go-kart] could come off the track." Id. at 139. Indeed, two photographs Mrs. Ochall took that day depict go-karts which had driven partially and completely off the track. (See A. Ochall Dep.; Defs.' Exs. 3 and 4.) However, Mrs. Ochall believed that the paved area next to the start/finish line was "a safe environment. That is a safe zone." (A. Ochall Dep. at 137.) No one ever told Mrs. Ochall that the paved area was a safe zone. (See Dec. 4,...