COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73141 LISA DINNIN, ET AL. : : JOURNAL ENTRY Plaintiff-appellants: : AND vs. : : OPINION THOMAS BENCIN, ET AL. : : Defendant-appellees : : : DATE OF ANNOUNCEMENT : JULY 30, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-327989 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: RENO J. ORADINI, JR., ESQ. 5454 State Road Parma, OH 44134 GEORGE W. LUTJEN, ESQ. Davis & Young Co., L.P.A. 1800 Midland Building 101 Prospect Avenue, W. Cleveland, OH 44115 -2- JOHN T. PATTON, J.: Plaintiff Lisa Dinnin brought this action in the name of her minor daughter Melissa, for injuries Melissa sustained while playing golf with Jessica Bencin, the minor daughter of defendant and next friend Thomas Bencin. The primary issue in this appeal is whether the court erred by granting summary judgment to defendant. Civ.R. 56(C) states that summary judgment shall be granted when the evidentiary materials show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Evidence may be presented in the form of, among other things, affidavits, pleadings, depositions, and written admissions. Id. Sworn or certified copies of all papers or parts of papers referred to in an affidavit must be attached to or served with the affidavit. See Civ.R. 56(E). Plaintiff first complains the court erred by granting summary judgment when defendant failed to file a complete copy of the deposition transcripts. When a movant relies on deposition testimony in support of a motion for summary judgment, the depositions should be filed with the court. However, the opposing party's failure to object to the submission of unfiled deposition testimony, particularly when the opposing party uses that same transcript without objection, cannot be grounds for error. See Boydston v. Norfolk S. Corp. (1991), 73 Ohio App.3d 727, 731, fn. 2, citing Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256; Brown v. Ohio -3- Cas. Ins. Co. (1978), 63 Ohio App.2d 87; Dillon v. Med. Ctr. Hosp. (1993), 98 Ohio App.3d 510. Plaintiff not only failed to object to the submission of unfiled deposition testimony, she cited to that same testimony and continues to do so in this court. That being the case, she cannot complain that the court considered the unfiled depositions. In her reply brief filed in this court, plaintiff suggests we strike defendant's response brief pursuant to Loc. R. 6 of the Eighth District Court of Appeals for failure to cite to specific parts of the record when referencing facts as required by App.R. 16(D). Loc.R. 6 is discretionary with us. While we continue to require adherence to App.R. 16(D), the straightforward nature of the underlying facts would make any decision to strike those facts unduly harsh. Despite our decision to consider the partial deposition transcripts, we are nonetheless constrained to consider only those facts properly presented on summary judgment. See Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. Both parties cite to certain facts that are not contained in the depositions. It may be that neither party disputes those facts, but we cannot consider them if they were not properly before the court, nor were they the subject of stipulation by the parties. The properly admitted facts of this case, viewed in a light most favorable to plaintiff, show that Melissa and Jessica's mothers worked together. The girls joined their mothers for lunch one day after having accompanied their mothers to work. Eight year -4- old Melissa and eleven year old Jessica decided to amuse themselves by hitting golf balls in a grassy field outside their mothers' place of business. The girls each took a turn hitting a ball, with the non-playing girl standing directly to the back of the girl with the golf club. They then retrieved the golf balls and hit them again. After several turns, Melissa decided to see what the ball looked like when it was hit. She went to Jessica's side and bent over to look at the ball, placing her torso on the ground to view Jessica's shot. Melissa saw Jessica's backswing, then felt the club strike her in the head on the downswing. Melissa suffered a fractured skull as a result of the accident. In Marchetti v. Kalish (1990), 53 Ohio St.3d 95, the syllabus states: Where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant's actions were either reckless or intentional as defined in Sections 500 and 8A of the Restatement of Torts 2d. See, also, Thompson v. McNeill (1990), 53 Ohio St.3d 102, paragraph one of the syllabus. Plaintiff concedes the definition of recreational activity has a broad reach, but argues this concept might be applied in such an all-encompassing manner that it would permit no exceptions. She maintains a trier of fact could find that the girls were not involved in a recreational activity, but rather in an educational activity. She claims Jessica was an experienced golfer who had -5- been showing Melissa (who had never swung a golf club) how to swing a club. Even if we assume, without deciding, that there may be some circumstances where the educational aspect of engaging in a recreational activity removes it from the protection afforded by Marchetti and Thompson, those circumstances are not present here. First, plaintiff presented no evidence to show Jessica's experience as a golfer in order to qualify her as an instructor. Plaintiff cited to portions of Jessica's deposition in which she allegedly claimed to have taken golf lessons for three years and won several trophies for excellent play, but those portions of the depositions were not submitted in either the motion for summary judgment or plaintiff's response in opposition to the motion for summary judgment. Melissa had not told Jessica that she did not play golf, and she could not say whether Jessica knew this fact. On the record before us, there is simply no evidence to show Jessica had significant enough golf expertise to qualify her brief directions on how to hit a golf ball as instruction. Second, even had Jessica been shown to have superior expertise in the game, plaintiff presented no facts to show that Jessica offered any formal instruction to Melissa. We think that formal instruction requires some showing of supervision and control in a structured setting. Jessica's instruction consisted of the following she told me to like set it up and come around and then to lift it up and swing it. This could hardly be said to be -6- the kind of formal instruction that might suggest the girls were engaged in something other than a recreational activity. This case is very similar to Ickes v. Tille (1996), 110 Ohio App.3d 438. Tille, a novice golfer, bought some golf clubs at a garage sale. One week later, he, Ickes and a friend were playing with the golf clubs. Tille showed the friend how to grip the club while Ickes stood about six feet behind the friend. When the friend swung the club, he struck Ickes in the forehead. The court of appeals, citing to Marchetti, supra, found the boys were engaged in a recreational activity and affirmed a summary judgment because Ickes could not show any facts pointing to Tille's recklessness. Id. at 442. Ickes applies directly to the facts of this case. Plaintiff presented no evidence to show Jessica had supervision and control over Melissa, so we conclude the girls were engaged in a recreational activity. Plaintiff also argues a material issue of fact exists to determine whether Jessica acted recklessly. She claims that participants in contact sports such as boxing or football owe a lesser duty to prevent bodily injury (bodily contact being assumed in those sports) than in non-contact sports like golf. Because golfers do not expect to come in contact with another golfer's club, plaintiff claims Jessica, with her substantial golfing experience, should have looked before swinging and warned Melissa of her intent to swing. -7- Reckless behavior occurs when the actor does something or intentionally fails to do something which the actor has the duty to do to another, knowing or having reason to know of facts that would lead the reasonable person to realize that the actor's conduct creates an unreasonable risk of harm to another, but also that the risk of doing or not doing something is substantially greater than that course of action which is necessary to make the actor's conduct negligent. Marchetti, 53 Ohio St.3d at 96, fn.2. What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants' ideas of foreseeable conduct in the course of a game. Thompson, 53 Ohio St.3d at 107. The facts of this case, viewed in a light most favorable to plaintiff, suggest that Melissa, not Jessica, had been the one to act recklessly. Melissa testified at deposition that both she and Jessica stood away while the other swung the club so they would not get hurt. Nonetheless, when Jessica took a turn at striking the ball, Melissa lowered herself to the ground so she could see what the ball looked like when struck. Even though Melissa moved to the side, Jessica testified that she did not see Melissa lying so near her ball. Melissa testified she knew enough to stand away from the person striking the golf ball so that she would not be hurt. Jessica could properly assume that Melissa continued to follow this safety precaution, and certainly had no reason, given what had -8- previously transpired, to expect or guard against Melissa lowering her head into the path of Jessica's downswing. We find no reasonable trier of fact could conclude otherwise. Accordingly, there being no issue of material fact, the court did not err by granting summary judgment. The assigned errors are overruled. Judgment affirmed. It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J. LEO M. SPELLACY, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsidera- ation with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time -9- period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by .