Morgan v. Kissel Bros. Shows, Inc.

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2001-Ohio-2411

Case Date: 06/19/2001

Plaintiff: Morgan

Defendant: Kissel Bros. Shows, Inc.

Preview:[Cite as Morgan v. Kissel Bros.Shows, Inc., 2001-Ohio-2411.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY : : Plaintiffs-Appellants, : : Case No. 00CA44 vs. : : DECISION AND JUDGMENT ENTRY Kissel Brothers Shows, Inc., : et al., : : Released: 6/19/01 Defendants-Appellees. : ______________________________________________________________ APPEARANCES James D. Colner, Columbus, Ohio, for Appellants. Joseph J. Golian, Michael E. Heffernan, and Patrick McCaffrey, Columbus, Ohio, for Appellees. ________________________________________________________________ Kline, J.: Jennifer and Raymond Morgan appeal the grant of summary judgment by the Pickaway County Court of Common Pleas. They Jennifer Morgan, et al.,

argue that the trial court erred in granting summary judgment because genuine issues of material fact remain. Because we find

that the alleged hazard of the ride from which Jennifer fell was open and obvious, we disagree that the trial court erred in granting summary judgment on their premises liability claim. Because we find that genuine issues of material fact remain as to whether Jennifer asked for help in exiting the ride, whether

Pickaway App. No. 00CA44 Jennifer acted reasonably in exiting the ride, and whether

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Darren Palmer acted reasonably by not helping Jennifer exit the ride, we agree that the trial court erred in granting summary judgment on the Morgans' general negligence claim. Accordingly,

we affirm in part and reverse in part the trial court's judgment. I. Jennifer and Raymond Morgan filed a complaint against Kissel Brothers Shows, Incorporated and Dwayne and Macek Kissel (collectively referred to as "Kissel Brothers") alleging that Jennifer suffered injuries while exiting from a ride belonging to Kissel Brothers Shows, Incorporated at the Circleville Pumpkin Show in 1998. The complaint also alleged that Raymond

suffered a loss of consortium as a result. Kissel Brothers filed a motion for summary judgment arguing that since Jennifer was engaged in a recreational activity, she had to allege that Kissel Brothers caused her injury in a reckless or intentional manner. The Morgans responded by

arguing that Jennifer was a business invitee and, therefore, Kissel Brothers owed her a duty to exercise reasonable care for her protection and safety. The Morgans attached a copy of the

employee handbook of Kissel Brothers Shows, Incorporated to

Pickaway App. No. 00CA44 their motion for summary judgment. The handbook required

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employees to assist patrons on and off the ride if necessary. Darren Palmer operated the ride from which Jennifer fell. He testified in his deposition that his job was: "the people that couldn't get out, to go around and help them. If there's any other people on the ride that's elderly that can't get off the ride, if I see them, if they call me over, I go over to help them because I get a lot of people on that ride that don't

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