Ohio Reinforces Primary Assumption of Risk

By Samuel G. Casolari Jr., Esq.*

Key Points:

• The Ohio Supreme Court reinforces primary assumption of risk doctrine.
• The Ohio Supreme Court finds that a collision between skiers is an inherent risk of the act of skiing.
• The Ohio Supreme Court reinforces the test for the application of the primary assumption of risk doctrine in the context of sports and recreational activities.

In the recent case of Horvath v. Ish, 2012-Ohio-5333, the Supreme Court of Ohio reinforced the primary assumption of the risk doctrine in the context of sports and recreation activities. It held the following: "[S]kiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier's actions were reckless or intentional."

In the Horvath case, David Ish was snowboarding, and Angel Horvath was skiing. David and Horvath collided, and Horvath was injured.

Horvath filed a complaint against Ish alleging that the defendant acted negligently, carelessly, recklessly, willfully and wantonly in causing the collision. The trial court granted the motion for summary judgment filed by the defendant, but the Court of Appeals reversed, stating that various statutory enactments under Ohio law established duties on the part of Ish. It requested that, on remand, the trial court determine whether the injuries sustained by Horvath were actionable under those statutes.

The Supreme Court affirmed, but on different grounds. It determined that the primary assumption of risk doctrine applies under well-established common law precedent:

This court has held that ‘[w]here individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover from any injury unless it can be shown that the other participant's actions were either reckless or intentional as defined in [2 Restatement of the Law 2d, Torts, §500, and 1 Restatement of the Law 2d, Torts, §8(a) (1965)].’ (Id. at ¶ 19 (other citations omitted).)

In its analysis, the Court considered skiing as a sport or recreational activity. The Court then stated, “Only those risks directly associated with the activity in question are within the scope of primary assumption of risk.” The Court continued, “[T]he risk must be one that is so inherent to the activity that it cannot be eliminated."

The Ohio Supreme Court, quoting Pennsylvania law, recognized that “other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions. As anyone who has ever undertaken the sport of skiing is painfully aware, it is a sport in which it is common for the participants to lose control’ (quoting Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511 (2000))."

With this analysis in mind, the Court held “that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for injury unless it can be shown that the other skier's actions were reckless or intentional.” It, likewise, remanded to the trial court, but this time, to determine whether Ish's actions were reckless or intentional.

In its opinion, the Court rejected an argument that sections 4169.08 and 4169.09 of the Ohio Revised Code “apply to personal-injury litigation between skiers.” The statutes respectively deal with the issue of “insulat[ing] ski-area operators from liability for injuries that arise from the inherent risks of skiing” and also define “the liability of ski-area operators and ski-area visitors for failing to comply with” various statutory responsibilities. After a careful statutory analysis, the Court held that the statutes, when read together, did “not create a duty of care that applies between skiers.” As such, the statutes did not apply.

Therefore, the Ohio Supreme Court reinforced the primary assumption of risk doctrine and the fact that the doctrine applies to those sporting or recreational activities where the inherent risk cannot be eliminated. Thus, as between skiers, it is the inherent risk of the activity, and not the statutory obligations between ski operators and ski visitors, that governs litigation between them. The Court clearly reinforced the primary assumption of risk doctrine that it upheld in past cases in different sports and recreational activities.

Defense Digest, Vol. 19, No. 1, March 2013