Scott Otterbacher v. Brandywine Ski Center, Inc.
| Decision Date | 23 May 1990 |
| Docket Number | 90-LW-1873,14269 |
| Parties | Scott OTTERBACHER, Plaintiff-Appellee Cross-Appellant, v. BRANDYWINE SKI CENTER, INC., Defendant-Appellant Cross-Appellee. |
| Court | Ohio Court of Appeals |
Appeal from Judgment Entered in the Common Pleas Court County of Summit, Case No. CV 88 4 1033.
Joseph R. Gioffre, Cleveland, for plaintiff.
James R. Kline, Cleveland, for defendant.
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
HAYES Judge, Sitting by Assignment.
Defendant-appellant and plaintiff-appellee both appeal the judgment of the trial court in this action arising from injuries incurred by plaintiff-appellee while skiing at defendant-appellant's resort. We affirm.
On January 25, 1985, plaintiff-appellee, Scott Otterbacher, went to defendant-appellant's Brandywine Ski Resort, Inc. ("Brandywine"). Otterbacher did not have his own ski equipment, and had to rent ski equipment from Brandywine. The equipment rented included skis, boots, poles and bindings. The bindings couple the boots to the skis.
Subsequently, Otterbacher was skiing down Brandywine's "Champagne" slope when he became slightly airborne. Otterbacher's left ski tip then caught into the snow causing Otterbacher to fall. The fall resulted in a fracture to Otterbacher's leg just above the top of Otterbacher's left boot. At no time during the fall did the left binding release the boot from the ski.
Otterbacher subsequently filed an action against Brandywine for his injuries. Brandywine moved for summary judgment. The motion, however, was denied and the action proceeded to trial. At trial, the jury returned a verdict in favor of Otterbacher and granted damages. Following the trial, Brandywine filed a motion for judgment notwithstanding the verdict, ("JNOV"). Otterbacher also filed a motion for prejudgment interest. Both motions were denied, and both Otterbacher and Brandywine appeal.
ASSIGNMENT OF ERROR I
"The court below erred in failing to grant appellants motions for summary judgment, directed verdict and judgment notwithstanding the verdict on the basis that appellee failed to establish willful or wanton misconduct."
In reviewing the granting or denial of a motion for summary judgment, we must determine whether:
" * * * (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party."
Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327; Civ.R. 56(C).
(emphasis in original.)
Osler v. Lorain (1986), 28 Ohio St.3d 345, 347; Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275; Civ.R. 50.
Brandywine asserts that the trial court erred in failing to grant Brandywine's motions for summary judgment, directed verdict and JNOV, as Otterbacher failed to establish that Brandywine acted willfully and wantonly.
Willful conduct involves intent, purpose or design to injure. McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246; Denzer v. Terpstra (1934), 129 Ohio St. 1, paragraph two of the syllabus. Willful misconduct may also be, with full knowledge of the existing conditions, the intentional execution of a wrongful course of conduct which one knows should not be carried out, or the intentional failure to do something which one knows should be done under circumstances tending to disclose that one knows or should know that injury to another will be the probable result of such conduct. Tighe v. Diamond (1948), 149 Ohio St. 520, paragraph four of the syllabus; Payne v. Vance (1921), 103 Ohio St. 59, paragraph three of the syllabus. Wanton misconduct is when one fails to exercise any care whatsoever toward those to whom he owes a duty of care, and his failure occurs under circumstances in which there is a great probability that harm will result. McKinney, supra; Hawkins v. Ivy (1977), 50 Ohio St.2d 114, syllabus.
In the case sub judice, Brandywine rented ski equipment to Otterbacher. Evidence was presented indicating Brandywine's rental agent merely pointed to the ski equipment available, did not ask Otterbacher his weight, height or level of ski experience, nor assist in Otterbacher's choice of equipment. Further, Brandywine's agent failed to test and adjust Otterbacher's chosen bindings.
Otterbacher also presented expert opinion evidence that Brandywine failed to follow published ski rental guidelines, and that failure to do so is willful and wanton disregard for human safety. The expert also opined that the bindings rented were outdated bindings which were more prone to cause injury than the more contemporary bindings.
Otterbacher presented evidence that Brandywine's failure to properly rent the ski equipment was an intentional failure to do something Brandywine knew should be done, because Brandywine knew or should know that injury to persons renting ski equipment was the probable result of such failure. Otterbacher also presented evidence that Brandywine's conduct in failing to properly rent ski equipment was a failure to exercise any care whatsoever towards Otterbacher under circumstances where there was a great probability that harm would result.
We hold that Otterbacher presented sufficient evidence at the time of the motion for summary judgment, motion for directed verdict and motion for JNOV from which reasonable minds could reach differing conclusions as to whether Brandywine's conduct was willful and wanton. The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
"The court below erred in failing to grant appellant's motions for summary judgment, a directed verdict and judgment notwithstanding the verdict on the basis that appellee failed to establish proximate cause."
"Proximate Cause" is established where an original act is wrongful or negligent and in natural and continuous sequence produces a result which would not have taken place without the act. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 287. To find that an injury was the natural and probable consequence of an act, it must appear that the injury complained of might and should have been foreseen or anticipated from the alleged wrongful or negligent act. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 143. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. Id.; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. The foreseeability of harm usually depends on the defendant's knowledge. Id.
The establishment of proximate cause through medical expert testimony must be by probability, i.e., the injury was more likely than not caused by defendant's wrongful or negligent act. Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 369.
In the case sub judice, Otterbacher's ski binding failed to release during the fall. Otterbacher presented expert evidence that Brandywine willfully and wantonly failed to follow industry rental guidelines in renting the equipment to Otterbacher. Also, Brandywine rented outdated and improperly adjusted equipment to Otterbacher. Otterbacher's expert opined that the wrongful acts of Brandywine made it less likely that Otterbacher's ski binding would release in a fall, thereby increasing the probability of injury to Otterbacher. Brandywine's expert concurred in the opinion that following the industry rental guidelines and properly maintaining and adjusting the equipment would decrease the incident of injury.
Further, Otterbacher's medical expert opined within a reasonable degree of medical certainty that Otterbacher's injury would not have occurred had the left ski binding released during the fall. The medical expert also stated within a reasonable degree of medical certainty that Otterbacher's injury occurred as a direct and proximate result of Brandywine's willful and wanton misconduct.
We hold that Otterbacher's evidence was sufficient for reasonable minds to reach differing conclusions as to whether Brandywine's wrongful actions were the proximate cause of Otterbacher's injury. The second assignment of error is overruled.
ASSIGNMENT OF ERROR III
"The court below erred in failing to grant appellant's motions for summary judgment, a directed verdict and judgment notwithstanding the verdict on the basis that appellee's claims were barred by Ohio Rev.Code Section 4169.08, express and implied assumption of the risk, and an express anticipatory release."
Brandywine asserts that R.C. 4169.08 bars Otterbacher's action. R.C. 4169.08 provides in part:
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