Whalen v. T.J. Automation, Inc.

• Decision Date: 08 April 2019
• Docket Number: NO. 7-18-27,7-18-27
• Citation: 134 N.E.3d 869,2019 Ohio 1279
• Parties: Jillian WHALEN et al., Plaintiffs-Appellants, v. T.J. AUTOMATION, INC. et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

134 N.E.3d 869

2019 Ohio 1279

Jillian WHALEN et al., Plaintiffs-Appellants,

v.T.J. AUTOMATION, INC. et al., Defendants-Appellees.

NO. 7-18-27

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

Date of Decision: April 8, 2019

Paul W. Flowers, Cleveland, for Appellants.

J. Alan Smith, Lima, for Appellees, Tracy and Amy Hammersmith.

Paul D. Eklund, for Appellee, T.J. Automation, Inc.

PRESTON, J.

{¶1} Plaintiffs-appellants, Jillian Whalen ("Whalen"), individually and in her capacity as Administrator of the Estate of Jackson Spees ("Jackson"), appeal the March 16 and August 2, 2018 judgments of the Henry County Court of Common Pleas granting the motions for summary judgment of defendants-appellees, T.J. Automation, Inc. ("T.J. Automation") and Tracy and Amy Hammersmith ("Tracy" and "Amy") (collectively the "Hammersmiths"). For the reasons that follow, we affirm.

{¶2} T.J. Automation manufactures machines that bend tubing for a variety of mechanical and automotive products. (Doc. No. 70, Tracy's May 15, 2018 Depo. at 11). Tracy is the president of T.J. Automation. (Id. at 9). His wife, Amy, serves as T.J. Automation's Director of Human Resources and Finance. (Doc. No. 71, Amy's May 15, 2018 Depo. at 11).

{¶3} On June 16-17, 2017, T.J. Automation hosted a party on its premises in Archbold, Henry County, Ohio to celebrate its 20th anniversary. (See Doc. No. 36, Plaintiffs' Exs. C, D). The 20th anniversary party was a private function for T.J. Automation, its employees, and their families. (See id. , Plaintiffs' Ex. D). Amy was primarily responsible for planning the party, which featured a wide range of activities including a cornhole tournament, "inflatables," face painting, and a live-band performance on the evening of June 17. (Doc. No. 70, Tracy's May 15, 2018 Depo. at 12-13); (Doc. No. 71, Amy's May 15, 2018 Depo. at 12); (Doc. No. 36, Plaintiffs' Exs. B, C). Food and alcoholic beverages were also provided to attendees. (See Doc. No. 36, Plaintiffs' Exs. C, K).

{¶4} At the time of the 20th anniversary party, Jonathan Spees ("Spees"), Jackson's father, was employed by T.J. Automation as a "[m]achine builder, fixture builder." (Doc. No. 69, Spees's May 15, 2018 Depo. at 14). On June 17, 2017, five-year-old Jackson accompanied Spees to the anniversary party along with Spees's then-girlfriend, Sierra Kennedy ("Kennedy"). (Id. at 25). Once they arrived at the party, Spees supervised Jackson as Jackson waded in the water of a retention pond located on the property. (Id. at 30). Although T.J. Automation did not ordinarily permit swimming in the retention pond, various water toys, including an inflatable raft owned by the Hammersmiths, were placed in and around the pond during the anniversary party and multiple children were openly swimming and wading in the water. (See Doc. No. 36, Plaintiffs' Exs. A, F, G, I); (See Doc. No. 69, Spees's May 15, 2018 Depo. at 60-65, 68); (See Doc. No. 71, Amy's May 15, 2018 Depo. at 26, 32); (See Doc. No. 72, Kennedy's May 15, 2018 Depo. at 16).

{¶5} After spending approximately one and a half hours traveling back and forth between the retention pond, the "bouncy houses," and the food service tables, Spees and Kennedy left Jackson playing in the pond to sit beneath the shade of a tent situated approximately 30 to 40 feet from where Jackson was playing. (See Doc. No. 69, Spees's May 15, 2018 Depo. at 30, 69). According to Spees, Jackson was wading in water up to his "[k]nee area," and Spees instructed Jackson not to go into the water any further. (Id. at 68-69). Within five minutes of sitting down under the tent, Spees and Kennedy lost sight of Jackson. (Id. at 70). They then began searching for Jackson. After searching throughout the inflatables, campers, and other structures on the premises, Spees and a handful of other partygoers entered the pond to search for Jackson. (Id. at 70-73). Eventually, approximately 10 to 15 minutes after losing sight of Jackson, Spees discovered Jackson's body submerged in roughly 3 to 4 feet of water. (Id. at 51, 73). Although attempts were made to resuscitate Jackson, he was later pronounced dead. Drowning was established as the likely cause of Jackson's death.

{¶6} On August 21, 2017, Whalen filed a complaint against T.J. Automation, Spees, an unnamed corporation, and various John and Jane Does. (Doc. No. 1). Whalen's complaint asserted claims of negligence and recklessness against T.J. Automation and Spees. (Id. ). The complaint also set out a claim against the unnamed corporation asserting that the corporation negligently contributed to Jackson's death by failing to follow various sections of the Ohio Revised Code applicable to the rental of amusement park equipment. (Id. ). T.J. Automation filed its answer to Whalen's complaint on September 20, 2017. (Doc. No. 4).

{¶7} On January 2, 2018, Whalen filed a motion for leave to file an amended complaint in order to add the Hammersmiths as new party defendants and to include a newly discovered claim of spoliation of evidence against T.J. Automation. (Doc. No. 20). While Whalen's motion for leave was pending, T.J. Automation filed a motion for summary judgment on January 29, 2018. (Doc. No. 24). T.J. Automation made several arguments in support of its motion for summary judgment. First, T.J. Automation argued that because Jackson was engaged in a recreational activity, swimming, before his death, the recreational activity doctrine barred Whalen's claims of negligence. (Id. ). Furthermore, T.J. Automation argued, because the recreational activity doctrine applied, Whalen was required to present evidence that T.J. Automation intentionally or recklessly caused Jackson's death, and the record was devoid of such evidence. (Id. ). In the alternative, T.J. Automation argued that it was shielded from liability for negligence under R.C. 1533.181, Ohio's statutory recreational user immunity. (Id. ). In addition, T.J. Automation contended that the attractive nuisance doctrine did not apply because Jackson was not a trespasser in the retention pond at the time of his death. (Id. ). Finally, T.J. Automation argued that it was not vicariously liable under the doctrine of respondeat superior for Spees's role in causing Jackson's death because Spees was not acting within the scope of his employment at the time of Jackson's death. (Id. ).

{¶8} On January 29, 2018, the same day that T.J. Automation filed its motion for summary judgment, the trial court granted Whalen's motion for leave to file an amended complaint. (Doc. No. 25). On February 5, 2018, Whalen filed an amended complaint. (Doc. No. 27). The amended complaint added the Hammersmiths, in their individual capacities, as new party defendants. (Id. ). The amended complaint asserted various negligence claims against the Hammersmiths as well as a claim for spoliation of evidence. (Id. ). The claim of spoliation of evidence was also asserted as a new claim against T.J. Automation. (Id. ). Whalen's spoliation of evidence claim arose from the apparent destruction of the Hammersmiths' inflatable raft, which was located in or around the retention pond on June 17, 2017. (See id. ). In all other respects, the amended complaint preserved in their entirety the claims against T.J. Automation contained in Whalen's original complaint. (See id. ). On February 16, 2018, T.J. Automation filed its answer to Whalen's amended complaint. (Doc. No. 34). On February 23, 2018, the Hammersmiths filed their answer to Whalen's amended complaint. (Doc. No. 37).

{¶9} On February 8, 2018, T.J. Automation filed a motion requesting that its January 29, 2018 motion for summary judgment be "referenced and reincorporated as against [Whalen's] * * * Amended Complaint." (Doc. No. 31). On February 22, 2018, Whalen filed her memorandum in opposition to T.J. Automation's motion for summary judgment. (Doc. No. 36). On March 2, 2018, T.J. Automation filed its reply to Whalen's memorandum in opposition. (Doc. No. 38).

{¶10} On March 16, 2018, the trial court granted T.J. Automation's motion for summary judgment. (Doc. No. 42). The trial court concluded that the recreational activity doctrine barred Whalen's negligence claims against T.J. Automation, that T.J. Automation did not intentionally or recklessly cause Jackson's death, that the attractive nuisance doctrine did not apply because Jackson was not a trespasser, and that T.J. Automation was not vicariously liable for Spees's tortious conduct, if any, under the doctrine of respondeat superior. (Id. ). Finally, the trial court observed that because T.J. Automation's motion for summary judgment did not request summary judgment as to Whalen's later-added claim of spoliation of evidence, Whalen's spoliation of evidence claim against T.J. Automation remained outstanding. (Id. ).

{¶11} On May 29, 2018, T.J. Automation filed a second motion for summary judgment with respect to the only remaining claim against it—Whalen's claim of spoliation of evidence. (Doc. No. 65). On May 30, 2018, the Hammersmiths filed a motion for summary judgment as to all claims asserted against them by Whalen in her amended complaint. (Doc. No. 67).

{¶12} On June 18, 2018, Whalen filed a memorandum in opposition to T.J. Automation's second motion for summary judgment. (Doc. No. 97). In addition, Whalen's memorandum in opposition also included a motion requesting that the trial court reconsider its March 16, 2018 decision granting T.J. Automation's first motion for summary judgment. (Id. ). Finally, Whalen's memorandum in opposition also included a request for "other alternative judicial relief," specifically a request that a decision on T.J. Automation's second motion for summary judgment be continued to allow for further discovery. (Id. ). In support of her request for a continuance to conduct additional discovery, Whalen attached to her memorandum in opposition an affidavit executed by her trial counsel. (Id. , Plaintiffs' Ex. F). On July 5, 2018, T.J. Automation filed its reply to Whalen's...