[Cite as Wemer v. Walker, 2013-Ohio-2005.]

COURT OF APPEALS 

KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JAMES R. WEMER, ET AL., : JUDGES: 

 : 

 : Hon. John W. Wise, P.J. 

 Plaintiffs-Appellants : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. 12CA17 

JOHN WALKER AKA JOHNNIE 

WALKER 

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: 

 : 

 : 

 Defendant-Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of 

Common Pleas, Case No. 11PI03-0146 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: May 5, 2013 

APPEARANCES: 

For Appellants: For Appellee: 

Robert E. Cesner, Jr. 

456 Haymore Avenue North 

Worthington, Ohio 43085-2445 

 Bruce A. Curry 

Curry, Roby & Mulvey Co., LLC 

8000 Ravine’s Edge Court, Ste. 103 

Columbus, Ohio 43235 

 
 

Baldwin, J. 

{¶1} Plaintiffs-appellants James R. Wemer and Clara Wemer appeal from the 

July 24, 2012 Judgment Entry of the Knox County Court of Common Pleas granting 

the Motion for Summary Judgment filed by appellee John Walker aka Johnnie Walker. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On or about May 31, 2010, appellant James Wemer was injured when he 

was bit by one of two ponies owned by appellee John Walker. Subsequently, on 

March 11, 2011, appellant and his wife, Clara Wemer, filed a personal injury complaint 

against appellee in the Knox County Court of Common Pleas. Appellee filed an 

answer to their complaint on March 31, 2011. Appellee, in his answer, raised the 

affirmative defenses of comparative negligence, assumption of the risk, and failure to 

join all necessary and/or indispensible parties and an affirmative defense that he did 

not know or should not have known of any vicious propensities of the subject ponies. 

{¶3} Appellee, with leave of court, filed a Motion for Summary Judgment on 

March 20, 2012, arguing that he was immune from liability under Ohio’s Equine 

Activity Liability Act, which is codified at R.C. 2305.321. Appellants filed a 

memorandum in opposition to appellee’s motion. Pursuant to a Judgment Entry filed 

on July 24, 2012, the trial court granted appellee’s motion. 

{¶4} Appellants now raise the following assignments of error on appeal:

{¶5} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION 

FOR SUMMARY JUDGMENT. APPELLANTS ARE ENTITLED TO A TRIAL UPON 

THE MERITS, BECAUSE THE EVIDENCE PRESENTS A JURY QUESTION ON THE 

ISSUE OF WHETHER THE ACTS OR OMISSIONS OF THE APPELLEE 
CONSTITUTE A FORFEITURE OF IMMUNITY UNDER O.R.C. 2305.321(B)(2)(b) 

AND (d).” 

{¶6} “II. THE TRIAL COURT ERRED IN GRANTING PLAINTIFFAPPELLANT’S (SIC) MOTION FOR SUMMARY JUDGMENT UPON THE BASIS 

THAT THIS DECISION DENIED THEM A SUBSTANTIVE RIGHT TO A REMEDY, AS 

GUARANTEED IN SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.” 

I, II 

{¶7} Appellants, in their two assignments of error, argue that the trial court 

erred in granting appellee’s Motion for Summary Judgment. Appellants, in their first 

assignment of error, argue that the evidence presents a jury question as to whether or 

not appellee’s acts or omissions constituted a forfeiture of immunity under R.C. 

2305.321(B). In their second assignment of error, they contend that the trial court’s 

decision denied them a right to a remedy. 

{¶8} As noted by the court in Supportive Solutions Training Academy L.L.C. v. 

Electronic Classroom of Tomorrow, 8th Dist. Nos. 95022, 95287, 2012-Ohio-1185, 

“Under Civ.R. 8(C), a defendant is required to affirmatively set forth matters that will 

effectively preclude a finding of liability on the part of the defendant. Failure to raise 

such defenses in a responsive pleading or motion will constitute a waiver of those 

defenses. Statutory immunity is an affirmative defense, and if it is not raised in a timely 

fashion, it is waived. State ex rel. Koren v. Grogan, 68 Ohio St.3d 590, 594, 629 N.E.2d 

446 (1994), Civ.R. 8(C); Civ.R. 12(H). Further, even if immunity is asserted as an 

affirmative defense in a defendant's answer, it still must be asserted in the motion for 

summary judgment. Leibson v. Ohio Dept. of Mental Retardation & Developmental 
Disabilities, 84 Ohio App.3d 751, 761, 618 N.E.2d 232 (8th Dist.1992). However, a 

summary judgment motion is not the proper format in which to raise an affirmative 

defense for the first time in a case. Mossa v. W. Credit Union, Inc., 84 Ohio App.3d 177, 

181, 616 N.E.2d 571 (10th Dist.1992). Affirmative defenses cannot be asserted for the 

first time in a motion for summary judgment. Carmen v. Link (1997), 119 Ohio App.3d 

244, 695 N.E.2d 28.” Id at paragraph 24. See also Brown v. Lincoln Hts., 195 Ohio 

App.3d 149, 2011-Ohio- 3551, 958 N.E.2d 1280 (1st Dist). In Brown, the appellant 

argued that the trial court had erred in granting the appellee’s motion for summary 

judgment on the issue of recreational-user immunity under R.C. 1533.181. The 

appellant asserted that the appellee waived the affirmative defense of recreationaluser immunity by failing to raise the defense in its answer. The First District Court of 

Appeals agreed and reversed the trial court’s grant of summary judgment on the basis 

of recreational-user immunity. See also Eulrich v. Weaver Bros., Inc., 165 Ohio 

App.3d 313, 2005-Ohio-5891, 846 N.E.2d 542 (3rd Dist.). 

{¶9} In the case sub judice, appellee did not raise the affirmative defense of 

immunity under R.C. 2305.321 in his answer. He, therefore, could not raise such 

defense for the first time in his Motion for Summary Judgment. We find, therefore, that 

the trial court erred in granting appellee’s Motion for Summary Judgment. 

{¶10} Appellants’ first assignment of error is, therefore, sustained. Appellants’ 

second assignment of error is moot. 
{¶11} Accordingly, the judgment of the Knox County Court of Common Pleas is 

reversed and this matter is remanded for further proceedings. 

By: Baldwin, J. 

Wise, P.J. and 

Delaney, J. concur. 

HON. CRAIG R. BALDWIN 

HON. JOHN W. WISE 

HON. PATRICIA A. DELANEY 

CRB/dr 

 

 
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JAMES R. WEMER, ET. AL., 

 

 Plaintiffs-Appellants 

 

-vsJOHN WALKER AKA JOHNNIE 

WALKER 

 Defendant - Appellee 

 

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 JUDGMENT ENTRY 

 Case No. 12CA17 

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Knox County Court of Common Pleas is reversed and this matter is remanded for 

further proceedings. Costs assessed to appellee. 

 

HON. CRAIG R. BALDWIN 

HON. JOHN W. WISE 

HON. PATRICIA A. DELANEY