[Cite as Arthur v. Spare Time Recreation, Inc., 2015-Ohio-3923.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

ROCHELLE ARTHUR, et al., : Case No. 14CA37 

 : 

Plaintiffs-Appellants, : 

 : 

vs. : DECISION AND JUDGMENT 

: ENTRY 

SPARE TIME RECREATION, INC., : 

et al., : 

 : 

Defendants-Appellees. : Released: 09/18/15 

_____________________________________________________________ 

APPEARANCES: 

Jeremy M. Burnside, Portsmouth, Ohio, for Appellants. 

John P. Petro, Williams & Petro Co., L.L.C., Columbus, Ohio, for 

Appellees. 

_____________________________________________________________ 

McFarland, A.J. 

{¶1} This is an appeal from a Lawrence County Common Pleas Court 

decision granting summary judgment in favor Appellees, Spare Time 

Recreation, Inc., et al. On appeal, Appellants contend that 1) the trial court 

erred in granting summary judgment in favor of Appellees by ignoring 

evidence of the dangerous condition of the floor and finding that no 

reasonable juror could conclude that Appellees failed to maintain its 

premises in a reasonably safe manner; 2) the trial court erred in granting 

summary judgment in favor of Appellees because it inappropriately applied 
Lawrence App. No. 14CA37 2

the assumption of the risk doctrine; and 3) the trial court erred in granting 

summary judgment in favor of Appellees, by ignoring the statutory duties set 

forth in R.C. 4171.06. 

{¶2} Because there is undisputed evidence that Appellees were in 

compliance with their operator duties as contained in R.C. 4171.06 and had 

no knowledge, actual or constructive, of the floor defect complained of by 

Appellants, there is no genuine issue of material of fact regarding whether 

Appellees maintained their premises in a reasonably safe condition. In light 

of this determination and applying the assumption of the risk principles 

contained in R.C. 4171.09 and 4171.10, Appellants' claims fail as a matter of 

law. As such, we cannot conclude that the trial court erred in granting 

summary judgment in favor of Appellees. Accordingly, Appellants' 

assignments of error, all of which challenge the trial court's grant of 

summary judgment, are overruled and the decision of the trial court is 

affirmed. 

FACTS 

{¶3} Appellants, Rochelle Arthur, et al., filed a complaint against 

Appellees, Spare Time Recreation, Inc., et al., on January 15, 2013, alleging 

negligence on the part of Appellees for failing to maintain its premises in a 
Lawrence App. No. 14CA37 3

reasonably safe condition.1

 Appellant more specifically alleged that an 

unsafe hole or crack in the floor caused her to fall while roller skating and 

that she sustained serious personal injury as a result. The record indicates 

that Appellant was attending a cub scout function held at Spare Time 

Recreation, Inc. with her son on January 17, 2011, when the incident 

occurred. Appellee, Spare Time Recreation, Inc. is an entertainment facility 

that offers bowling, roller skating and laser tag. 

{¶4} As the matter proceeded through the discovery process, 

Appellant testified during her deposition that as she was skating with her 

son, the front left wheel on her right skate went down into a hole or a ridge, 

which caused her to fall. She testified that she saw no imperfection in the 

floor prior to her fall, but that afterwards she noticed a ridge, or something 

dark on the floor. She testified that because she could not see the area well, 

she could not describe it in more detail. Although she took no photos on the 

night of the incident, she did hire private investigator, Eddie Jenkins, to take 

photos after the incident occurred. Jenkins testified in his deposition that he 

went to Spare Time Recreation some time in March of 2011 and took photos 

of the skating rink floor, nearly two months after the incident at issue 

occurred. Jenkins' photos depict some areas of the floor which he testified 

 

1

 Hereinafter Appellants and Appellees will be referred to in singular form, referring to Rochelle Arthur 

and Spare Time Recreation, Inc., respectively. 
Lawrence App. No. 14CA37 4

were damaged when he was there, however, they do not depict the condition 

of the skating rink floor on January 17, 2011. 

{¶5} David Lucas, Ph.D., boy scout troop scout master, was also 

deposed. He was present on the evening the incident occurred and actually 

witnessed Appellant's fall as he was skating approximately fifteen to twenty 

feet behind her. When asked whether there were any defects in the floor in 

the area where Appellant fell, he testified "No. None at all." He testified 

that the lighting was good at the time of the fall and that he went over and 

spent three to four minutes inspecting the floor after the fall and saw no 

imperfections or debris in the floor that would have caused her to fall. Lucas 

also testified that caution tape was up in another area of the floor due to a 

roof leak, but that was not the area in which Appellant fell. 

{¶6} The owner, Jeff Dillow, and employees Michael Wood and 

Michael Morgan were also deposed. Dillow testified that Michael Morgan 

was the skateguard on duty the night of the incident and that the manager, 

Michael Wood, was also present. Dillow testified that skateguards have a 

responsibility to make daily inspections of the skating rink floor before each 

skating session and that he personally goes over the floor at least two to 

three times per week. He testified that there have been times when sections 

of the floor have had to be "cordoned" off due to roof leaks. Manager 
Lawrence App. No. 14CA37 5

Michael Wood testified that if there are less than one hundred patrons, they 

only have one skateguard on duty. He testified that the skateguard has to 

check the floor before each session and that he was not aware of any 

"ridges" or "rolls" in the floor on the date of the incident. When shown 

photos taken by Jenkins of the alleged defects in the skating rink floor, 

Wood repeatedly testified that whether the alleged defects were safety 

concerns would depend on how deep the defects were and how smooth the 

surface was, which could not be discerned from the photos. 

{¶7} Michael Morgan, the skateguard on duty at the time of the 

incident, testified during his deposition that his duties, among other things, 

include keeping an eye on the kids skating and keeping the skate floor clean. 

When shown photos depicting alleged defects in the floor, he testified that 

areas with seams, stains or paint peels were not concerning as the areas are 

always sanded down and patched so that they are smooth. He testified areas 

with peeled paint are not a concern as long as there are no paint chips 

present. He testified that the floor is cleaned and swept regularly and that if 

he becomes aware of any issues with the floor, such as paint chips, he will 

clean it up before letting skaters back on the floor. He also testified that 

after Appellant's fall, he went out and checked the floor where she fell and 

could not find anything wrong. He then checked her skates to see if the 
Lawrence App. No. 14CA37 6

wheels were locked but they were not. Michael Morgan completed an 

incident report related to Appellant's fall and indicated on the report that 

Appellant told him she fell while helping her son. 

{¶8} Appellee moved the trial court for summary judgment on May 

27, 2014, which was granted over the objection of Appellant on November 

10, 2014. The trial court relied on Appellant's lack of specificity as to the 

cause of her fall, coupled with the doctrine of assumption of the risk 

associated with roller skating in issuing its decision. The trial court found 

that, based upon the evidence before it, no reasonable juror could conclude 

that Appellee failed to maintain its premises in a reasonably safe manner, 

considering the nature of the activity involved. It is from this decision that 

Appellants bring their timely appeal, assigning three errors for our review. 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUDGMENT IN FAVOR OF APPELLEE SPARE TIME 

RECREATION, INC. BY IGNORING THE EVIDENCE OF THE 

DANGEROUS CONDITION OF THE FLOOR AND FINDING 

THAT NO REASONABLE JUROR COULD CONCLUDE THAT 

THE DEFENDANT FAILED TO MAINTAIN ITS PREMISES IN A 

REASONABLY SAFE MANNER. 

II. THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUDGMENT IN FAVOR OF APPELLEE SPARE TIME 

RECREATION, INC., BECAUSE IT INAPPROPRIATELY 

APPLIED THE ASSUMPTION OF THE RISK DOCTRINE. 
Lawrence App. No. 14CA37 7

III. THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUGMENT IN FAVOR OF APPELLEE SPARE TIME 

RECREATION, INC., BY IGNORING THE STATUTORY DUTIES 

SET FORTH IN O.R.C. 4171.06.” 

LEGAL ANALYSIS 

{¶9} Because Appellant's assignments of error all challenge the trial 

court's grant of summary judgment, we address them in conjunction with 

one another. Appellant contends that the trial court erred in granting 

summary judgment in favor of Appellee, arguing that the trial court ignored 

evidence of a dangerous condition on the floor, ignored the statutory duties 

set forth in R.C. 4171.06, and inappropriately applied the assumption of the 

risk doctrine. We begin by considering the appropriate standard of review 

when reviewing the grant or denial of summary judgment. 

SUMMARY JUDGMENT STANDARD 

{¶10} Appellate courts conduct a de novo review of trial court 

summary judgment decisions. See, e.g., Grafton v. Ohio Edison Co., 77 

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate 

court must independently review the record to determine if summary 

judgment is appropriate and need not defer to the trial court's decision. See 

Brown v. Scioto Bd. of Commrs, 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 

(4th Dist. 1993); Morehead v. Conley, 75 Ohio App.3d 409, 411-12, 599 

N.E.2d 786 (4th Dist. 1991). Thus, to determine whether a trial court 
Lawrence App. No. 14CA37 8

properly granted a summary judgment motion, an appellate court must 

review the Civ.R. 56 summary judgment standard, as well as the applicable 

law. 

 Civ.R. 56(C) provides, in relevant part, as follows: 

"* * * Summary judgment shall be rendered forthwith if the 

pleadings, depositions, answers to interrogatories, written 

admissions, affidavits, transcripts of evidence in the pending 

case, and written stipulations of fact, if any, timely filed in the 

action, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to judgment as a 

matter of law. No evidence or stipulation may be considered 

except as stated in this rule. A summary judgment shall not be 

rendered unless it appears from the evidence or stipulation, and 

only from the evidence or stipulation, that reasonable minds can 

come to but one conclusion and that conclusion is adverse to 

the party against whom the motion for summary judgment is 

made, that party being entitled to have the evidence or 

stipulation construed most strongly in the party's favor." 

{¶11} Thus, pursuant to Civ.R. 56, a trial court may not award 

summary judgment unless the evidence demonstrates that: (1) no genuine 
Lawrence App. No. 14CA37 9

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) reasonable minds can come 

to but one conclusion, and after viewing such evidence most strongly in 

favor of the nonmoving party, that conclusion is adverse to the party against 

whom the motion for summary judgment is made. See, e.g., Vahila v. Hall, 

77 Ohio St.3d 421, 429-30, 674 N.E.2d 1164 (1997). 

{¶12} Under Civ.R. 56, the moving party bears the initial burden to 

inform the trial court of the basis for the motion, and to identify those 

portions of the record that demonstrate the absence of a material fact. 

Vahila, supra; Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 

(1996). The moving party cannot discharge its initial burden under the rule 

merely with a conclusory assertion that the nonmoving party has no 

evidence to prove its case. See Kulch v. Structural Fibers, Inc., 78 Ohio 

St.3d 134, 147, 677 N.E.2d 308 (1997); Dresher, supra. Rather, the moving 

party must specifically refer to the “pleadings, depositions, answers to 

interrogatories, written admissions, affidavits, transcripts of evidence in the 

pending case, and written stipulations of fact, if any,” which affirmatively 

demonstrate that the nonmoving party has no evidence to support the 

nonmoving party's claims. Civ.R. 56(C); Dresher, supra. 
Lawrence App. No. 14CA37 10

{¶13} “[U]nless a movant meets its initial burden of establishing that 

the nonmovant has either a complete lack of evidence or has an insufficient 

showing of evidence to establish the existence of an essential element of its 

case upon which the nonmovant will have the burden of proof at trial, a trial 

court shall not grant a summary judgment.” Pennsylvania Lumbermans Ins. 

Corp. v. Landmark Elec., Inc., 110 Ohio App.3d 732, 742, 675 N.E.2d 65 

(2nd Dist. 1996). Once the moving party satisfies its burden, the nonmoving 

party bears a corresponding duty to set forth specific facts showing that there 

is a genuine issue for trial. Civ.R. 56(E); Dresher, supra. A trial court may 

grant a properly supported summary judgment motion if the nonmoving 

party does not respond, by affidavit or as otherwise provided in Civ.R. 56, 

with specific facts showing that there is a genuine issue for trial. Id.; Jackson 

v. Alert Fire & Safety Equip., Inc., 58 Ohio St.3d 48, 52, 567 N.E.2d 1027 

(1991). 

NEGLIGENCE 

{¶14} A successful negligence action requires a plaintiff to establish 

that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant 

breached the duty of care; and (3) as a direct and proximate result of the 

defendant's breach, the plaintiff suffered injury. See, e.g., Texler v. D.O. 

Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 217 (1998); Jeffers 
Lawrence App. No. 14CA37 11

v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio 

Welding Products, Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). If a 

defendant points to evidence to illustrate that the plaintiff will be unable to 

prove any one of the foregoing elements, and if the plaintiff fails to respond 

as Civ.R. 56 provides, the defendant is entitled to judgment as a matter of 

law. See Lang v. Holly Hill Motel, Inc., 4th Dist. Jackson No. 06CA18, 

2007-Ohio-3898, ¶ 19, affirmed, 122 Ohio St.3d 120, 2009-Ohio-2495, 909 

N.E.2d 120. 

APPLICATION OF R.C. CHAPTER 4171 

{¶15} R.C. 4171.05, entitled "Legislative finding of need for safety 

standards" provides as follows with respect to roller skating: 

"The general assembly acknowledges that the recreational sport 

of roller skating is practiced by a large number of citizens of 

Ohio, provides a wholesome and healthy family activity which 

should be encouraged, and significantly contributes to the 

economy of this state. The general assembly further 

acknowledges that roller skating as a recreational sport can be 

hazardous to roller skaters and that minimal safety standards 

for, and duties and responsibilities of, operators and roller 

skaters are in the public interest." 
Lawrence App. No. 14CA37 12

{¶16} R.C. 4171.06, entitled "Duties of operators" provides, in 

pertinent part, as follows: "Each operator shall: * * * (C) Maintain the 

skating surface in a reasonably safe and clean condition and inspect the 

skating surface before each session[.]" Further, R.C. 4171.07 entitled "Floor 

supervisors" provides, as follows: 

"Each operator shall maintain at least one floor supervisor on 

duty for every one hundred seventy-five roller skaters when the 

roller skating rink is open for sessions. The floor supervisor 

shall be in a position to observe the skate floor and shall 

monitor activity on the skate floor and be available to assist 

skaters in understanding and adhering to the responsibilities of 

roller skaters set forth in section 4171.08 of the Revised Code. 

The floor supervisor shall comply with the duties of a floor 

supervisor as defined by the roller skating rink operators of 

America or its successor organization, including directing 

traffic and assisting roller skaters who may fall or sustain 

injuries. The floor supervisor also shall issue warnings, 

reprimands, or penalties to roller skaters upon their violation of 

the responsibilities set forth in section 4171.08 of the Revised 

Code." 
Lawrence App. No. 14CA37 13

{¶17} Thus, considering the negligence principles set forth above, 

roller skating rink operators, such as Spare Time Recreation, have a statutory 

duty to maintain the skating surface in a reasonably safe and clean condition 

and must inspect the skating surface before each session. Breach of such a 

duty which proximately results in injury constitutes negligence. As set forth 

above, there is undisputed evidence in the record indicating that Appellee 

discharged its duties under R.C. 4171.06 by conducting regular and 

recurring inspections of the floor, two to three times a week, every weekend 

and before each skate session. There is further evidence that on the night in 

question, there was a skateguard, or floor supervisor, on duty for the party 

that only consisted of about thirty people, including both the adults and 

children. 

{¶18} There is further undisputed evidence in the record that after 

Appellant fell, no defect in the floor could be identified visually. Appellant 

herself testified that she did not see an imperfection before she fell but rather 

felt it. Although she testified she saw a dark spot on the floor afterwards, 

she could not describe the size or depth of it. Contrary to Appellant's 

testimony, both David Lucas and Michael Morgan testified that they closely 

inspected the area of the floor where Appellant fell immediately after her fall 

and found no imperfection or debris that would have caused Appellant to 
Lawrence App. No. 14CA37 14

fall. Although photos appear in the record, taken by a private investigator 

approximately two months after the incident in question, it cannot be said 

that the photos depict the floor on the night of the incident. When 

questioned about alleged floor defects depicted in the photographs, Spare 

Time Recreation management and personnel consistently stated that 

maintenance was done as needed and routinely, that when aware of a safety 

issue, such as water due to a roof leak or other issue they would barricade 

off areas of the floor, and that they were not concerned about the areas 

depicted in the photos, as any repaired areas were sanded until smooth. 

{¶19} Thus, even construing the evidence in a light most favorable to 

Appellant and assuming that her skate wheel did fall into a ridge or 

indention in the floor, because it was unable to be identified upon inspection 

even after the incident it does not appear that the imperfection in the floor 

was an open and obvious hazard. Further, Appellant has submitted no 

evidence that Appellee actually created the hazard or had knowledge of the 

hazard. Instead, Appellant suggests Appellee should have known about the 

hazard. However, based upon the undisputed evidence in the record, 

including the fact that the alleged imperfection was not observed by 

Appellant prior to the fall and could not be located by either Lucas or Spare 

Time Recreation Staff after the fall, we disagree. There is no evidence in the 
Lawrence App. No. 14CA37 15

record that anyone had reported the alleged defect to Spare Time staff. 

There is simply no evidence in the record that Spare Time staff had 

knowledge of the defect but failed to remedy it. 

{¶20} The fact that another area of the floor was barricaded off that 

night indicates that when aware of potential safety issues, Appellee acted to 

avoid injury to patrons. At best, the evidence indicates that the alleged 

defect was isolated and of unknown duration, possibly occurring during the 

skating session. Further, because Appellant cannot dispute the evidence that 

Appellee complied with its statutory duty to inspect the skate floor before 

the skating session, she cannot meet her burden of showing that Appellee 

failed to maintain the skating surface in a reasonably safe and clean 

condition. Because Appellant is unable to prove a breach of duty by a 

failure to comply with R.C. 4171.06(C), the doctrine of assumption of the 

risk, which will be discussed more fully below, applies. 

ASSUMPTION OF THE RISK 

{¶21} R.C. 4171.09 entitled " Express assumption of risk" provides as 

follows: 

"The general assembly recognizes that roller skating as a 

recreational sport can be hazardous to roller skaters regardless 

of all feasible safety measures that can be taken. Therefore, 
Lawrence App. No. 14CA37 16

roller skaters are deemed to have knowledge of and to expressly 

assume the risks of and legal responsibility for any losses, 

damages, or injuries that result from contact with other roller 

skaters or spectators, injuries that result from falls caused by 

loss of balance, and injuries that involve objects or artificial 

structures properly within the intended path of travel of the 

roller skater, which are not otherwise attributable to an 

operator's breach of his duties pursuant to sections 4171.06 and 

4171.07 of the Revised Code." 

{¶22} Further, R.C. 4171.10 entitled "Assumption of risk as defense; 

comparative negligence" provides that: 

"The express assumption of risk set forth in section 4171.09 of 

the Revised Code shall serve as a complete defense in a tort or 

other civil action against an operator by a roller skater for 

injuries resulting from the assumed risks of roller skating. The 

comparative negligence or other tort provisions of sections 

2315.32 to 2315.36 of the Revised Code shall not apply unless 

the operator has breached the operator's duties pursuant to 

sections 4171.06 and 4171.07 of the Revised Code." 
Lawrence App. No. 14CA37 17

{¶23} Caselaw on this topic generally indicates that hazards that are 

not open and obvious, and that were either created or known by skating rink 

operators are not risks that are assumed by skating rink patrons. See 

generally, William Clements, et al. v. Skate 9H Realty, Inc., et al., 277 

A.D.2d 614, 714 N.Y.S.2d 836, 2000 N.Y. App. Div. LEXIS 11342 

(assumption of the risk doctrine applied to hole in skating floor that was 

open and obvious); Alfred F. Schmidt v. State of New York, 198 Misc. 802, 

100 N.Y.S.2d 504, 1950 N.Y. Misc. LEXIS 2145 (skater did not assume any 

risk from an unsafe condition of the rink of which he had no knowledge, but 

which might reasonably have been anticipated by the proprietor of the rink, 

specifically a protruding metal strip that had protruded in the past); Elizabeth 

B. Neirman, et al. v. Casino Arena Attractions, Inc., et al., 46 N.J. Super. 

566, 135 A.2d 210, 1957 N.J. Super. LEXIS 436 (liability found as a result 

of generally deteriorated condition of ice and distinguishing from cases 

involving an isolated defect of unknown duration). Skating rink patrons also 

do not assume the risks stemming from the breach of operator duties. 

Ronald Vaughn v. Riverside Arena, Inc., 2006 Mich. App. LEXIS 3705 

(skater did not assume risk of injury as a result of a puddle on the floor, the 

existence of which employees had been repeatedly notified but failed to 

remedy). 
Lawrence App. No. 14CA37 18

{¶24} However, caselaw further generally indicates that absent 

demonstration of a breach of operator duties, the assumption of the risk 

doctrine applies. See generally, Nicole L. Gallihugh v. United Skates of 

America, 10th Dist. Franklin No. 99AP-624, 2000 WL 423979 (April 20, 

2000) (skater assumed risk of fall due to loss of balance due to alleged 

improperly fitted skates); Hey v. Skateworld, Inc., et al., 2nd Dist. 

Montgomery No. 16941, 1998 WL 698368 (Oct. 9, 1998) (skating rink 

found not liable due to compliance with duties contained in R.C. 4171.07 

and holding that skating rink did not and could not, in the exercise of 

ordinary care, know of the danger at issue.) 

{¶25} Based on the foregoing, including that 1) Appellee 

demonstrated its compliance with the duties contained in R.C. Chapter 4171; 

2) Appellant cannot demonstrate breach of Appellee's statutory duties; 3) 

there is no evidence indicating Appellee either created the alleged floor 

defect or knew or reasonably should have known of its existence; and 4) it 

appears that the defect in the floor, if it existed, was an isolated defect of 

unknown duration, we conclude that summary judgment in favor of 

Appellee was warranted. In the absence of a breach of operator duties on the 

part of Appellee, the doctrine of assumption of the risk acts as a complete 
Lawrence App. No. 14CA37 19

defense to Appellant's claims. Accordingly, the assignments of error raised 

by Appellant are overruled and the decision of the trial court is affirmed. 

 JUDGMENT AFFIRMED. 
Lawrence App. No. 14CA37 20

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and that costs be 

assessed to Appellants. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Lawrence County Common Pleas Court to carry this judgment into 

execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Hoover, P.J. & Harsha, J.: Concur in Judgment Only. 

For the Court, 

 BY: ______________________________ 

 Matthew W. McFarland, 

Administrative Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.