[Cite as Foggin v. Fire Protection Specialists, Inc., 2013-Ohio-5541.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Bennie Foggin, as Administrator of the : 

Estate of Joseph Foggin, deceased, 

 : 

 Plaintiff-Appellant, No. 12AP-1078 

 : (C.P.C. No. 10CVB-04-6137)

v. 

 : (REGULAR CALENDAR) 

Fire Protection Specialists, Inc. et al., 

 : 

 Defendants-Appellees. 

 : 

 

D E C I S I O N 

Rendered on December 17, 2013 

 

Malek & Malek, LLC, and James Malek, for appellant. 

Crabbe, Brown & James, LLP, Michael R. Henry, and 

Matthew R. Planey, for appellee Fire Protection Specialists, 

Inc. 

 

APPEAL from the Franklin County Court of Common Pleas. 

BROWN, J. 

{¶ 1} Bennie Foggin, administrator of the estate of Joseph Foggin, deceased, 

plaintiff-appellant, appeals from the judgment of the Franklin County Court of Common 

Pleas, in which the court granted the motion for summary judgment filed by Fire 

Protection Specialists, Inc. ("FPS"), defendant-appellee. 

{¶ 2} FPS is a company that maintains fire protection systems. On April 21, 2008, 

employees of FPS were at the Arbors of Delaware ("Arbors"), a long-term skilled nursing 

and short-term rehabilitation facility to repair and test the facility's fire sprinkler system. 

Arbors is owned by Extendicare Health Services, Inc. ("Extendicare"). In order to perform 
No. 12AP-1078 2

the work, FPS turned off the sprinkler system, and Arbors employees turned off the 

monitoring system to prevent a false alarm. The other parts of the fire suppression system 

were still in operation, including the fire alarms, smoke detectors, pull stations, and fire 

doors. 

{¶ 3} To repair the sprinkler system, FPS entered the attic space located above the 

drop ceiling tiles in Arbors' lobby using its own six-foot folding stepladder. FPS employees 

cut and welded a metal pipe during their repair work. At approximately 11:30 a.m., FPS 

employees went to lunch, leaving their stepladder next to the attic, leaving the sprinkler 

system disabled, and leaving the alarm system in test mode. 

{¶ 4} While the FPS employees were at lunch, Joseph Foggin ("Foggin"), the 

director of maintenance for Arbors; Michael Henson, a maintenance assistant; and 

Ardella Layne, were installing a television. Foggin used FPS's ladder several times to enter 

the attic to install coaxial cable at the same place FPS was working. Sometime after the 

television was installed, but while the FPS workers were still on lunch break, Layne told 

Foggin she smelled smoke. Although Foggin did not smell anything, he and Layne 

checked areas of the facility. During their inspection, Foggin used FPS's ladder to look in 

the attic. After a few minutes, Foggin told Layne he had found nothing, and he attempted 

to use the ladder to get down from the attic. He placed his right foot on the rung below the 

top step of the ladder and then attempted to move that foot to make room for his left foot. 

In doing so, the ladder tilted, and Foggin fell from the ladder. Foggin struck his head on a 

handrail. He suffered serious injuries from which he later died. 

{¶ 5} On April 21, 2010, appellant filed a complaint against FPS, alleging 

negligence and negligent hiring, supervision, and training; Bauer Corporation, the 

manufacturer of the ladder; and Extendicare. Appellant subsequently dismissed Bauer. 

On April 5, 2011, FPS filed a motion for summary judgment. On December 28, 2011, 

Extendicare moved for summary judgment on subrogation issues arising under workers' 

compensation law. On November 15, 2012, the trial court granted FPS's motion for 

summary judgment based upon a finding of primary assumption of the risk, and entered 

judgment accordingly on November 26, 2012. The trial court also denied Extendicare's 

motion as moot. Appellant appeals the judgment of the trial court, asserting the following 

assignments of error: 
No. 12AP-1078 3

 I. The trial court erroneously granted defendant-appellees' 

motion for summary judgment because genuine issues of 

material fact remain which should properly be decided by a 

jury. 

II. The trial court erred when it found that the rescue and/or 

emergency doctrine had no conceivable application to Mr. 

Foggin's conduct at the time he fell descending the ladder. 

III. The Defendants-Appellees had a duty to use ordinary care 

in performing their work and they failed to use ordinary care 

and their failure was a proximate cause of Mr. Foggin's fall. 

IV. The Emergency and/or Rescue Doctrines are recognized in 

Ohio and are applicable to the facts of the current case such 

that the doctrine of Primary Assumption of the Risk does not 

apply. 

{¶ 6} Appellant's arguments in his brief do not track his assignments of error. 

Thus, we will address all of appellant's assignments of error together, attending to the 

various arguments set forth in the brief. Appellant's assignments of error assert generally 

that the trial court erred when it granted summary judgment. Summary judgment is 

appropriate when the moving party demonstrates that: (1) there is no genuine issue of 

material fact, (2) the moving party is entitled to judgment as a matter of law, and 

(3) reasonable minds can come to but one conclusion when viewing the evidence most 

strongly in favor of the non-moving party, and that conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; 

Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review 

of a trial court's ruling on a motion for summary judgment is de novo. Hudson at ¶ 29. 

This means that an appellate court conducts an independent review, without deference to 

the trial court's determination. Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521, 

2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio4490, ¶ 6 (10th Dist.). 

{¶ 7} The elements of an ordinary negligence suit between private parties are 

(1) the existence of a legal duty, (2) the defendant's breach of that duty, and (3) injury that 

is the proximate cause of the defendant's breach. Mussivand v. David, 45 Ohio St.3d 314, 

318 (1989). Ohio law recognizes three categories of assumption of the risk as defenses to a 
No. 12AP-1078 4

negligence claim; express, primary, and implied or secondary. Schnetz v. Ohio Dept. of 

Rehab. & Corr., 195 Ohio App.3d 207, 2011-Ohio-3927, ¶ 21 (10th Dist.); Crace v. Kent 

State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10 (10th Dist.). In the present case, 

the trial court granted summary judgment in favor of FPS based upon the doctrine of 

primary assumption of the risk. 

{¶ 8} Primary assumption of the risk is applied in cases where there is no duty 

owed by the defendant to the plaintiff. See Gallagher v. Cleveland Browns Football Co., 

74 Ohio St.3d 427 (1996); Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175 (1925). 

"Underlying this judicially created doctrine is the notion that certain risks are so inherent 

in some activities that they cannot be eliminated." Otterbacher v. Brandywine Ski Ctr., 

Inc., 9th Dist. No. 14269 (May 23, 1990). Thus, primary assumption of the risk completely 

negates a negligence claim because the defendant owes no duty to protect the plaintiff 

against the inherent risks of the recreational activity in which the plaintiff engages. 

Schnetz at ¶ 24; Crace at ¶ 15. Primary assumption of the risk "is a defense of 

extraordinary strength" because it defeats a plaintiff's ability to allege even a prima facie 

case of negligence. Gallagher at 431. Whether to apply primary assumption of the risk is a 

matter of law for the court to decide. Crace at ¶ 12. 

{¶ 9} In order to succeed on a primary assumption of the risk defense, it must be 

shown that (1) the danger is ordinary to the activity, (2) there is common knowledge that 

the danger exists, and (3) that the injury occurs as a result of the danger during the course 

of the activity. Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, ¶ 12 

(10th Dist.). Thus, "[a] plaintiff who reasonably chooses to proceed in the face of a known 

risk is deemed to have relieved defendant of any duty to protect him." Siglow v. Smart, 

43 Ohio App.3d 55, 59 (9th Dist.1987). By choosing to participate in an activity, the 

participant implicitly accepts those risks. Curtis v. Schmid, 5th Dist. No. 07 CAE 11 0065, 

2008-Ohio-5239, ¶ 54, citing Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005-Ohio4744, ¶ 11. The types of risks associated with the activity are those that are foreseeable and 

customary risks of the activity. Id. 

{¶ 10}However, the injured plaintiff's subjective consent to and appreciation for 

the inherent risks of the recreational activity are immaterial to the analysis. Schnetz at 

¶ 25; Crace at ¶ 16. Those entirely ignorant of the risks of the activity, still assume the risk 
No. 12AP-1078 5

by participating in the activity. The law simply deems certain risks as accepted by plaintiff 

regardless of actual knowledge or consent. Id. Therefore, the doctrine of primary 

assumption of the risk requires an examination of the activity itself. If the activity involves 

risks that cannot be eliminated, then a finding of primary assumption of the risk is 

appropriate. Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307 (June 12, 

1997); Schnetz at ¶ 25. The defendant's conduct is relevant only if it rises to reckless or 

intentional conduct. Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 6, fn. 2; 

Schnetz at ¶ 23. 

{¶ 11}In the present case, the trial court determined that a ladder tipping and 

causing the user to fall is a recognized risk of using a ladder. The court found that any 

person experienced in using a stepladder tacitly acknowledges that it might inadvertently 

tip over and injure him or her, which is a straightforward, ordinary risk within the realm 

of common knowledge. The court concluded that a ladder tipping is inherent in the basic 

activity of using a ladder. The court also noted that any person using a stepladder also 

recognizes that such a ladder can tip and is most unsteady while standing near the top. 

{¶ 12}Appellant first argues that Foggin did not voluntarily engage in the activity of 

climbing the ladder. Appellant posits that, as a maintenance person, it was Foggin's job to 

find the unknown source of the smell of smoke, and he felt compelled to check the attic for 

smoke. Although we agree that Foggin's activities fell within the broadest purview of his 

job description, Foggin voluntarily decided to use FPS's ladder to check the attic. Despite 

the assumption that Foggin felt compelled to check for smoke, there is no evidence that 

Foggin was required or compelled to climb and descend the ladder in question and in the 

specific manner he chose. Although appellant complains that FPS's ladder was too short 

to reach the attic opening, it is undisputed that Foggin was not required to use FPS's 

ladder, and he had full access to the taller ladders provided by Arbors. Appellant also fails 

to present evidence that Foggin's job was at risk if he chose not to climb or descend FPS's 

ladder. The record is devoid of any facts that Foggin was compelled to choose the course 

of conduct that he selected. In fact, Layne testified that it was Foggin who "decided to go 

up the ladder." She said he used FPS's ladder because it was "handy," and there was 

nothing prohibiting him from using one of the ladders owned by Arbors. 
No. 12AP-1078 6

{¶ 13} We also reject appellant's argument that the risk of falling from the ladder 

could have been eliminated if FPS would have left a taller ladder in the vicinity. At issue is 

whether Foggin voluntarily climbed and descended the existing six-foot ladder to reach 

the attic space and whether the dangers associated with climbing such a ladder are 

ordinary and within the realm of common knowledge. The danger at issue is the climbing 

of the ladder in question and not the climbing of a hypothetical ladder. Regardless, 

climbing ladders is inherently dangerous regardless of the ladder used. See, e.g., Morgan 

v. Ohio Conference of United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453 

(rejecting the plaintiff's argument that primary assumption of the risk did not apply when 

the risks associated with the inherently risky activity of night hiking could have been 

eliminated if the instructor had chosen a different trail, because any assessment error in 

the subjective judgment of the path chosen by the instructor, if any, was not reckless or 

outside the range of the ordinary activity involved in night hiking, and tripping, slipping, 

and falling are inherent risks of night hikes, regardless of the trail chosen). Here, like in 

Morgan, any error in the judgment of the height of ladder FPS left in the vicinity of the 

attic space was not outside the range of the ordinary activity associated with ladder usage, 

and falling is an inherent risk of ladders regardless of the height of ladder used. Therefore, 

this argument is without merit. 

{¶ 14}We find our case in Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP696, 2008-Ohio-1421, instructive. In Ballinger, the defendant was installing a new roof 

on plaintiff's house. Plaintiff safely climbed the defendant's ladder once to show 

defendant where to place a dryer vent but then fell the second time he climbed the ladder 

after the ladder shifted when he was at the top of it. We found the activity in question in 

Ballinger was "ladder climbing." Id. at ¶ 13. We concluded that it was common knowledge 

that climbing ladders is an inherently dangerous activity, and that is why people take 

extreme care when doing so. Id. Failure to take due care when climbing a ladder will often 

result in losing one's balance, falling from the ladder, or causing the ladder itself to fall. Id. 

For these reasons, ladders carry conspicuous warning labels. Id. Therefore, we held in 

Ballinger that ladder climbing was a type of inherently dangerous activity that is subject 

to primary assumption of risk. We also noted that the plaintiff testified that he 

appreciated the potential danger associated with climbing the ladder to his roof, there was 
No. 12AP-1078 7

nothing that prevented him from repositioning the ladder that day on the second trip up 

to the roof, and he used the ladder because "[i]t was there." Id. at ¶ 14. We also 

acknowledged that transferring from the ladder can be quite daunting. Id. at ¶ 17. When 

only one foot is on the ladder, the weight distribution changes dramatically, which can 

easily cause the ladder to shift in the direction of the foot that is still planted firmly on the 

ladder. Id. We recognized that poor technique in this regard would foil even the most 

perfectly erected ladder. Id. 

{¶ 15}In the present case, Layne testified in her deposition that it appeared 

Foggin's right foot was too far to the inside of the second step from the top, and he tried to 

wiggle his right foot to the side to make room for his left foot on the same step. At that 

point, the pressure from his right foot caused the ladder to tilt to the right. As we 

recognized in Ballinger, it is inherent in all stepladders that there is a danger of the ladder 

shifting when only one foot is on a step near the top of the ladder. Furthermore, Layne 

testified that she and Foggin learned in their safety training at Arbors that you never step 

on the top steps of a ladder. Similarly, Henson, who was hired to work in the maintenance 

department at Arbors two weeks before the incident, testified that he learned during his 

Arbors safety training "[t]he basic common knowledge of the ladder: Always stay within 

the parameters, don't step on the top two rungs, make sure you ha[ve] the proper ladder 

for the proper job." Therefore, we find that the danger of a stepladder falling, particularly 

when using the top rungs, is ordinary to stepladders, and it is common knowledge that 

this danger exists. For the foregoing reasons, we find the trial court did not err when it 

applied the doctrine of primary assumption of the risk to the present case to find FPS 

owed no duty to Foggin. 

{¶ 16}Appellant next argues that, at the time of his injury, Foggin was attempting a 

rescue from an imminent and serious peril, and, thus, his action was not barred by the 

defense of primary assumption of the risk. A person injured during an attempted rescue 

may recover from the party negligently causing the danger to the same extent as the 

person who required assistance from the rescuer. Bennett v. Stanley, 92 Ohio St.3d 35, 46 

(2001) (Cook, J., dissenting). This "rescue doctrine" has long been a part of Ohio's 

common law. Estate of Minser v. Poinsatte, 129 Ohio App.3d 398, 401-02 (6th 

Dist.1998); Reese v. Minor, 2 Ohio App.3d 440 (1st Dist.1981). However, one may be a 
No. 12AP-1078 8

rescuer only as long as he or she has a reasonable belief that a victim is in peril. Marks v. 

Wagner, 52 Ohio App.2d 320, 324 (3d Dist.1977). "[A] reasonable belief of continued 

peril could not exist in a case where the negligent act causing the victim's injuries had run 

its course and the victim's life was no longer in peril." Id. 

{¶ 17}Notwithstanding, we agree with the trial court that the rescue doctrine would 

not apply to the present case because the peril was over at the time of Foggin's fall. 

Although this case presents unfortunate circumstances, the facts do not support a finding 

that Foggin's or anyone else's life was in peril at the time Foggin fell. Neither Layne nor 

Foggin saw fire or smoke. Foggin did not smell any smoke. Layne testified that there was 

no sense of panic, no residents or other employees said they smelled smoke, none of the 

residents sitting in the lobby near the location of the incident were asked to move, and 

none of the nearby residents were using oxygen, which is highly flammable. In her 

deposition, Layne said that she did not believe the situation was urgent, the entire 

situation unfolded in a matter of seconds, and Foggin did not act like he believed it was 

urgent. Layne said that Foggin was not going up or coming down the ladder in a hurried 

or panicked manner. Therefore, we conclude that there was no evidence that anyone's life 

was in peril, and, even if there was any peril, such had dissipated after being unable to 

find the source of the smoke in the attic or surrounding areas. For all of the foregoing 

reasons, we must overrule appellant's first, second, third, and fourth assignments of error. 

{¶ 18}Accordingly, appellant's four assignments of error are overruled, and the 

judgment of the Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 DORRIAN and O'GRADY, JJ., concur. 

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