COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73323 LAURIE WHITING, ET AL. : : : JOURNAL ENTRY PLAINTIFFS-APPELLANTS : : AND v. : : OPINION JAMES R. AERNI, ET AL. : : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, CV-314335. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Lester S. Potash, Esq. 2000 Illuminating Building 55 Public Square Cleveland, OH 44113 For Defendants-Appellees: Timothy L. Kerwin, Esq. Davis & Young Co., L.P.A. 1700 Midland Building 101 Prospect Avenue, West George C. Zucco, Esq. Monroe & Zucco 1525 Leader Building Cleveland, OH 44114-1444 TIMOTHY E. McMONAGLE, P.J.: Plaintiffs-appellants, Laurie and Robert Whiting, appeal the decision of the Cuyahoga County Court of Common Pleas that granted summary judgment to defendants-appellees, James Aerni and Richard -2- Rollins (collectively referred to as appellees ), on the basis that appellees owed no duty of care to Laurie Whiting for the injuries she sustained while a spectator at a baseball game. For the reasons that follow, we affirm. The record reflects that Laurie Whiting ( appellant ) was sitting in the bleachers at Ranney Park in Westlake, Ohio watching her brother's softball game. Adjacent to the area in which she was sitting were appellees, who were warming-up in preparation for their game scheduled to be played after the completion of appellant's brother's game. While warming-up, an errant ball struck appellant in the face causing serious injuries. Appellant brought suit against appellees alleging that her injuries were due to their combined negligence. The complaint included a claim for loss of consortium by appellant's husband, Robert Whiting. Both appellees moved for summary judgment, premising their motion on the lack of duty owed to appellant. In the brief opposing appellees' motions, appellant argued that while she may have assumed any risk of watching her brother's game, she did not assume the risk of being struck by a ball thrown by appellees during warm-up. Relying on this court's decision in Domanick v. Revlok (June 9, 1994), Cuyahoga App. No. 65641, unreported, the court granted the motion stating, *** players owe no duty of care for injuring their teammate or spectators because warming-up is a foreseeable, customary part of baseball. Continuing, the trial court opined that a spectator/invitee, as -3- well as participant licensee, assumes the risk of injury at a sporting event. Appellant timely appeals and assigns the following errors for our review: I. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN OVERRULING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT UPON THE ISSUE OF LIABILITY. Appellant's assignments of errors both challenge the propriety of granting summary judgment to appellees and will, therefore, be discussed together. In reviewing a motion for summary judgment, an appellate court conducts a denovo review of the trial court's decision. A court reviewing the granting of a summary judgment must follow the standards set forth in Civ.R. 56(C) *** . Aglinsky v. Cleveland Builders Supply Co. (1990), 68 Ohio App.3d 810, 814. Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that: (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 such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The court must construe the evidence and all reasonable inferences drawn therefrom in a light most favorable to the party -4- opposing the motion. Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Because summary judgment is a procedural device used to terminate litigation, it must be awarded with caution, resolving all doubts in favor of the party opposing the motion. Osborne v. Lyles (1992), 63 Ohio St.3d 326. The burden of establishing that no genuine issues to any material fact remain to be litigated is on the party moving for summary judgment. Turnerv. Turner (1993), 67 Ohio St.3d 337, 340; Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 120. Once a party moves for summary judgment and has supported the motion by sufficient and acceptable evidence, the party opposing the motion has a reciprocal burden to respond by affidavit, or as otherwise provided in Civ.R. 56(C), setting forth specific facts explaining that a genuine issue of material fact exists for trial. Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. A motion for summary judgment forces the nonmoving party to produce evidence on all issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. It is the moving party, however, who bears the initial responsibility of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. Dresher v. Burt (1996), 75 Ohio St.3d 280, 296. -5- In order to defeat a motion for summary judgment brought in a negligence action, a plaintiff must identify a duty owed to him by the defendant. The evidence must be sufficient, when considered most favorably to the plaintiff, to allow reasonable minds to infer that the duty was breached, that the breach of that duty was the proximate cause of the plaintiff's injury and that the plaintiff was injured. Feichtner v. Cleveland (1995), 95 Ohio App.3d 388, 394; Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19, 22-23; see, also, Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103. The existence of a duty in a negligence action is a question of law for the court, and there is no express formula for determining whether a duty exists. Mussivand v. David (1989), 45 Ohio St.3d 314, 318. The existence of a duty is fundamental to establishing actionable negligence, without which there is no legal liability. See Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142; Feichtner, supra. When one fails to discharge an existing duty, there can be liability for negligence. Id. Whether a duty exists depends largely on the foreseeability of the injury to one in the plaintiff's position. Only when the injured person comes within the circle of those to whom injury may be reasonably anticipated does the defendant owe a duty of care. Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 338. In this case, the trial court premised its ruling on the lack of duty owed to appellant because the risk of injury was foreseeable. Appellant relies on Cincinnati Baseball Club Co. v. -6- Eno (1925), 112 Ohio St. 175 as support that at least an issue of fact exists as to whether appellant assumed the risk of injury from which she now complains. Appellees rely on this court's decision in Domanick v. Revlok (June 9, 1994), Cuyahoga App. No. 65641, unreported, as support that a spectator, such as appellant, assumes the risk of injury at a sporting event. The Domanick court, quoting Eno, stated: [I]t is common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof. Id. at 4. This oft-quoted excerpt has been relied upon by Ohio courts as support that no duty of care is owed a spectator of sporting events. Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427; Stradtner v. Cincinnati Reds Inc. (1972), 39 Ohio App.2d 199. Appellant, nonetheless, argues that Eno confined this reasoning to injuries incurred by balls thrown or batted during the course of a baseball game. This is especially true, appellant argues, where the Eno court further reasoned that such spectators can watch the ball and can thus usually avoid being struck when a ball is directed toward them. According to appellant's argument, because she was watching her brother's game, her attention was not directed at appellees as they were warming-up and, thus, she could not avoid the errant ball thrown in her direction. Consequently, she argues that, at the very least, a question of fact remains as -7- to whether she had assumed the risk of the injury she ultimately sustained. We disagree. The Eno court based its decision on the facts and circumstances in that particular case. Specifically, the plaintiff in that case sustained injuries while the players were warming-up during the intermission period of a double-header game. Finding that there was no evidence that the plaintiff was aware of any particular danger, the court found that an issue of fact remained as to whether the plaintiff assumed the risk of that danger. The facts of the instant case are readily distinguishable from those in the Eno case. Appellant testified during her deposition that she had been to that particular park on several occasions prior to the date of injury and that she was aware and had seen players warm-up all over the park, particularly near the bleacher area where she was sitting. Thus, unlike the plaintiff in Eno, there is considerable evidence that appellant was aware of players warming-up and, therefore, that the risk of injury was foreseeable. The trial court found likewise and premised its decision, not so much on the doctrine of primary assumption of the risk, but on the foreseeability of the risk of potential injury to a spectator such as appellant. Because this risk was foreseeable, no duty of care was owed to appellant. Consequently, no genuine issue of material fact remained to be litigated and summary judgment was appropriately granted to appellees. -8- Accordingly, appellants' assignments of error are not well taken and are overruled. It is ordered that appellees recover of appellants its 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 Common Pleas Court 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. TIMOTHY E. McMONAGLE PRESIDING JUDGE PATTON, J., CONCURS (with Separate Concurring Opinion); SPELLACY, J., DISSENTS (with Separate Dissenting Opinion). N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA -9- No. 73323 LAURIE WHITING, ET AL. : : Plaintiff-appellants: : CONCURRING OPINION vs. : : JAMES R. AERNI, ET AL. : : Defendant-appellees : : DATE: OCTOBER 22, 1998 JOHN T. PATTON, J., CONCURRING: I concur with the majority and feel it is necessary to expound on Domanick v. Revlok (June 9, 1994), Cuyahoga App. No. 65641, unreported, which contains facts and reasoning more analogous to those in Cincinnati Baseball Club Co. v. Eno (1925), 112 Ohio St. 175, and feel there is a clear distinction between Domanick and Eno. First, the dissent complains the majority erroneously relies on Eno, supra, and the doctrine of primary assumption of risk. The majority does not rely on Eno. In fact the majority distinguishes the present case from Eno and only cites Eno because appellant relied on it to support her argument. The majority opinion relies on the doctrine of foreseeability. Second, the case cited by the appellees, Domanick, supra, and not mentioned by the dissent, contains facts and reasoning more analogous to the present case than those in Eno. In Domanick, Domanick was sitting in the first few rows of the bleachers tying his shoes in anticipation of an impending baseball game. Meanwhile, defendant was warming up, adjacent to the bleachers where Domanick was sitting, not on the field itself, in anticipation of the same game. While warming up defendant made a wild throw, i.e., a throw that deviated from its intended course, that struck Domanick in the head. We held it is clear that a spectator/invitee as well as a participant/licensee assumes the risk of injury at a sporting event. We also held that it is customary for players to warm up on the sidelines and it is foreseeable that wild pitches will be thrown. Whereas in Eno, Eno was struck by a ball that a batter hit from a point on the playing field near the grandstand where Eno was sitting. This incident occurred during the intermission of a doubleheader. Eno then filed a complaint against the batter's club not the batter, i.e., the tortfeasor, alleging the club as the lessee of the baseball park was negligent in not providing screening to protect the spectators. The court held it was a question of fact whether the club as owner/occupier was negligent in protecting spectators from injury by allowing the players to practice so near to the grand stand. The court also held it was a question of fact whether Eno was guilty of contributory negligence in sitting in an unscreened grand stand when batting practice was going on in a part of the field while the game was not in progress. Like the present case, in Domanick, a player was warming up and made a wild throw that struck Domanick who was sitting in adjacent bleachers. Additionally, Domanick was a baseball player -2- who was aware that players customarily warmed up before games. Domanick also was aware that throwing a wild pitch was foreseeable. In contrast, in Enothere is no evidence that Eno was knowledgeable about the custom of players warming up before games or that it was foreseeable that balls sometimes reach the areas where spectators sit. Moreover, the issues pertained more to Eno sitting in an unscreened portion of the grandstand rather than the actions of the tortfeasor or Eno's baseball knowledge. However, in the present case, appellant testified during her deposition she had been to the particular park more than ten times, she had previously witnessed people warming up in all areas of the park, and she stated it was normal for players to be warming up where defendants were. Plaintiff also said she had played softball before and tossing a ball back and forth is a part of the warm up for players. This evidence clearly shows plaintiff was aware of the custom of players warming up before games, that she was knowledgeable about baseball games, and that risk of injury from watching a sporting event was foreseeable. A review of both Domanick and Eno indicates the reasoning and facts in Domanick are more analogous to the facts of the present case while Eno is distinguishable. As a result, I believe Domanick is more persuasive. Third, the dissent argues the doctrine of primary assumption of risk is inapplicable and the trial court erred by applying it to the instant case. However, the trial court's journal entry does not mention primary assumption of risk. The journal entry states -3- the trial court relied primarily on the doctrine of foreseeability saying [a]ccording to Domanick v. Revlok, supra, players owe no duty of care for injuring their teammate or spectators because warming-up is a foreseeable, customary part of baseball. The journal entry does indicate a spectator assumes the risk of injury at a sporting event, but it cites to Domanick and Stradtner et al., vs. Cincinnati Reds, Inc., (1972), 39 Ohio App.2d 199, and not Eno. In any event, there are a litany of cases from other jurisdictions which hold contrary to the dissents position that primary assumption of risk applies only to spectators who are struck by balls hit or thrown from the natural progression of a game. I.G. Simpson v. City of Muskogee (Okla.App.1994), 879 P.2d 1269; Sprunger v. East Noble School Corporation (Ind.App.1986), 495 N.E.2d 250; Clark v. Goshen Sunday Morning Softball League and Alexsis Delgado (1985), 493 N.Y.S.2d 262; Barnecut v. Seattle School District No.1 (Wash.1964), 389 P.2d 904; Zeitz v. Cooperstown Baseball Centennial, Inc. (1941), 29 N.Y.S.2d 56. Therefore, I agree with the majority's opinion holding Domanick is controlling and the doctrine of foreseeability rather than primary assumption of risk is applicable. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73323 LAURIE WHITING, ET AL. : : PLAINTIFFS-APPELLANTS : : -vs- : DISSENTING OPINION : JAMES R. AERNI, ET AL. : : DEFENDANTS-APPELLEES : DATE: OCTOBER 22, 1998 LEO M. SPELLACY, J., DISSENTING: I respectfully dissent. The majority distinguishes between the instant case and Eno by pointing out that Whiting was aware from prior occasions that sometimes players warmed up near the bleacher area while there was no evidence the plaintiff in Eno was aware of the dangers associated with players warming up between games of a doubleheader. However, the majority does not analyze the facts of this case by applying the doctrine of primary assumption of the risk. Underlying this judicially created doctrine is the notion that certain risks are so inherent in some activities that they cannot be eliminated. Fowler v. Williams Cty. Commrs. (1996), 113 Ohio App.3d 760. Primary assumption of the risk is an implicit acknowledgment that one owes no duty. Anderson v. Ceccardi (1983), 6 Ohio St.3d 110. It is involved where the activity undertaken involves such obvious and unavoidable risks that no duty of care is said to attach. Holmes v. Health & Tennis Corp. of Am. (1995), 103 Ohio App.3d 364. -2- Primary assumption of the risk is an absolute bar to recovery in a negligence suit. Under this doctrine, the defendant owes no duty to the plaintiff as a matter of law. Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35. The conduct of the plaintiff has nothing to do with whether or not the defense is applicable. Mima v. Akron (1986), 31 Ohio App.3d 124. Primary assumption of the risk is a defense of extraordinary strength as the plaintiff is barred from recovery as a matter of law. Therefore a trial court must proceed cautiously when evaluating whether the defense applies. Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427. The leading case on the issue of primary assumption of the risk and attendance at a sporting event is that relied on by the majority. In Cincinnati Baseball Club Co. v. Eno (1925), 112 Ohio St. 175. The court stated: When several balls are simultaneously in play upon the field, it is impossible for the spectator to protect himself by watching the ball, for more than one ball is being thrown or batted at once. During the course of the game itself the spectator can watch the ball. During the course of the practice he cannot follow the maneuvers of all of the possible groups. Id.at 183-184. The court found that, under the facts of the case, primary assumption of the risk was not applicable. Instead, the court held it to be a question of fact whether the plaintiff was aware of the particular danger and may be contributorily negligent. Only those risks directly associated with the activity in question are within the scope of primary assumption of the risk so -3- that no jury question arises as to when an injury resulting from the direct risk is at issue. If there are attendant circumstances that raise questions of fact whether an injured party assumed the risk in a particular situation, then the doctrine of implied assumption of the risk, not primary assumption of the risk, is applicable. Gallagher, supra. In the instant case, Whiting's attention was directed at the field of play. Although she was aware that players sometimes warmed up in the area next to the bleachers, Whiting did not see the defendants doing so that day. Before the defendants could prevail on the theory that Whiting voluntarily assumed the risk, they would have to prove that she had knowledge of the condition; that the condition was patently dangerous; and that she voluntarily exposed herself to the hazard created. Stradtner v. Cincinnati Reds Inc. (1972), 39 Ohio App.2d 199. Whiting apparently was unaware that a ball was being thrown about in her vicinity. Her attention was on the ball game at hand. Indeed, if she had been watching the defendants and been struck by a ball coming from the game, the doctrine of primary risk would be applicable. As in Eno, more than one ball was in motion, precluding Whiting from being able to keep track of each ball even if she had been aware of the ball used by the defendants. In similar situations, the doctrine of primary assumption of the risk has been applied to spectators who were injured by a ball coming into the stands from the field of play. Whiting was not injured in such a situation. The doctrine of primary assumption of the risk is -4- inapplicable and the trial court erred by applying it to the instant case. Under the doctrine of primary assumption of the risk, the defendants owed no duty to Whiting. As that doctrine is .