[Cite as Thomas v. Chimera , 2021-Ohio-4204.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

BRYNN S. THOMAS, et al. Appellants/Cross-Appellees

-vsCAROLYN CHIMERA, et al. Appellees/Cross-Appellants JUDGES: Hon. Craig R. Baldwin, P. J. Hon. W. Scott Gwin, J. Hon. John W. Wise, J. Case No. 2021CA00016

O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2020CV00160

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 29, 2021

APPEARANCES: For Appellants/Cross-Appellees For Appellees/Cross-Appellants A. JAMES TSANGEOS MERLE D. EVANS, III 1810 36th Street, NW BRANDON O. TRENT Canton, Ohio 44709-2739 M ILLIGAN PUSATERI CO., LPA Post Office Box 35459 Canton, Ohio 44735Stark County, Case No. 2021CA00016 2
Wise, J. {¶1} Appellants, Brynn Thomas, Dawn Thomas, and Michael Thomas, appe al from the January 29, 2021, Judgment Entry by the Stark County C ourt of Common Pleas. Appellees are Walter Wolosiansky and Sara Wolosiansky. The rele vant facts leading to this appeal are as follows. STATEMENT OF THE FACTS AND CASE {¶2} Appellee Sara Wolosiansky owns a speech pathologist practice. C arolyn Chimera (“Co-defendant”) and Ap pellee Walter Wolosiansky work a t the practice. {¶3} On July 27, 2014, Co-defendant held a birthday party for her da ughter on property owned by Appellees located at 674-678 East Caston Road , Uniontown, Ohio (“the property”). The property is made up of multiple parcels a nd includes a multioccupancy home, a volleyball court, a zipline, food shelter, co rnhole equipment, and a pond. {¶4} The zipline was built by Appellee Walter Wolosiansky. It was tw elve to fifteen feet above the ground and did not have a safety harness . Walter Wolosiansky had no experience or training installing ziplines, is not a member of any association relating to ziplines, is not familiar with industry standards, had no fo rmal instruction on how to install or use the zipline, and was unaware ziplines had safety harnesses. {¶5} In order to use the zipline, the rider has to climb a tree to a platform, hold onto the handle bar, step off the platform, and travel until th e handlebar hits a stopper. The rider will then fall into the pond.Stark County, Case No. 2021CA00016 3 {¶6} Co-defendant, with permission of Appellees, invited a few of he r daughter’s friends to the party and intended to participate in the activit ies, including ziplining, available on the property. The attendees were between fourteen and sixteen years old. {¶7} Appellant Dawn Thomas noted in her deposition that she drove Br ynn Thomas to the party. Co-defendant never informed her that Brynn would be ziplining at the party, only that the girls would be playing volleyball and swimming. {¶8} Co-defendant was the only adult supervising the use of the zipl ine. Appellant Brynn Thomas has never ziplined before and watched tw o attendees use the zipline prior to her attempt. In her deposition, Brynn Thomas n oted she was too short to correctly hold onto the handle bars, so she held onto a spot wi thout grips. When she went down the zipline, the zipline made a snapping sound, and she fe ll off the zipline. She landed on the ground before the pond. {¶9} After her fall, Brynn stayed at the party and played volleyball . In the days following, she experienced pain in her knee and leg. She had th ree surgical procedures, multiple diagnostic imaging, physical therapy, chiropractic tre atment, and prescription medication. The treatment cost over $65,000. {¶10} After the accident Appellees replaced the zipline with new equi pment. The replacement took place between June of 2017 and summer of 2018 before Appellees received service of the complaint. {¶11} Appellants filed suit against Co-defendant and Appellees allegi ng negligence, recklessness, and/or intentional conduct, loss of c onsortium by Dawn and Michael Thomas, and spoliation against Appellees.Stark County, Case No. 2021CA00016 4 {¶12} Co-defendant and Appellees filed a motion for summary judgment, arguing there were no questions of material fact, and that they were en titled to judgment as a matter of law on all counts of the Plaintiff’s Complaint. The t rial court denied Codefendant’s motion, finding there were questions of fact as to whether Co-defendant recklessly supervised the zipline activity, and granted Appelle es’ motion finding they were immune from liability under the recreational user statute, and that Appellees did not have knowledge of pending or probable litigation ASSIGNMENTS OF ERROR {¶13} Appellants filed a timely notice of appeal and herein raises th e following two Assignments of Error: {¶14} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING APPELLEES’ MOTION FOR SUMMARY JUDGMENT ON THE BASIS THAT OHIO’S RECREATIONAL USER STATUTE, R.C. 1533.181, PROVIDED IMMUNITY TO THE WOLOSIANSKYS FOR THE INJURIES SUFFERED BY BRYNN THOMAS ON THEIR PROPERTY. {¶15} “II. THE TRIAL COURT ERRED IN GRANTING APPELLEES’ MOTION FOR SUMMARY JUDGMENT ON THE CLAIM OF SPOLIATION AS QUESTIONS OF FACT EXIST AS TO WHETHER THE WOLOSIANSKYS HAD NOTICE OF POTENTI AL LITIGATION AND THEIR INTENT WHE N DISPOSING OF THE ZIPLINE.” {¶16} Appellees herein raise the following three Cross-Assignments of Error: {¶17} “I. THE TRIAL COURT ERRED IN NOT GRANTING SUMMARY JUDGMENT TO APPELLEES BASED UPON THE STATUTE OF LIMITATIONS.Stark County, Case No. 2021CA00016 5 {¶18} “II. THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT TO APPELLEES BASED UPON THE DOCTRINE OF PRIMARY ASSUMPTION OF THE RISK. {¶19} “III. THE TRIAL COURT ERRED IN NOT GRANTING SUMMARY JUDGMENT TO APPELLEES ON APPELLANTS’ PREMISES LIABILITY CLAIM, ON THE ADDITIONAL GROUNDS THAT APPELLANT BRYNN THOMAS WAS, AT BEST , A LICENSEE AND THERE WAS NO EVIDENCE OF ANY “WILLFUL, WANTON, O R RECKLESS CONDUCT WHICH IS LIKELY TO INJURE” HER BY THE APPELLEE S.” Standard of Review {¶20} With regard to summary judgment, this Court applies a de novo s tandard of review and reviews the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs. , 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4 th Dist.1993). Under Civ.R. 56, a trial court may grant summary judgment if it determines: (1) no genuine issues as to any material fact remain to be litigated; (2) the moving party is entitled to judgment a s a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion and viewing such evidence most strongly in favor of the party again st whom the motion for summary judgment is made, that conclusion is adverse to that pa rty. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274 (1977). {¶21} The record on summary judgment must be viewed in the light most favorable to the party opposing the motion. Williams v. First United Church of Christ , 37 Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).Stark County, Case No. 2021CA00016 6 {¶22} The moving party bears the initial responsibility of informing the trial court of the basis for the motion and identifying those portions of t he record before the trial court, which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim. Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once the moving party has met the burden, the nonmoving party then has a reciprocal burden of specificity and cannot rest on the allegat ions or denials in the pleadings, but must set forth “specific facts” by the means lis ted in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v. Wheeler , 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).
I. {¶23} In Appellant’s First Assignment of Error, Appellant argues the trial court erred by granting Appellee’s Motion for Summary Judgment as the y are immune from liability under Ohio’s Recreational User Statute. We disagree. {¶24} The recreational user statute, R.C. 1533.181, states: (A) No owner, lessee, or occupant of premises: (1) Owes any duty to a recreational user to keep the premises safe for entry or use; (2) Extends any assurance to a recreational user, through the a ct of giving permission, that the premises are safe for entry or u se; (3) Assumes responsibility for or incurs liability for any inju ry to person or property caused by any act of a recreational user. (B) Division (A) of this section applies to the owner, lessee, or occupant of privately owned, nonresidential premises, whether o r not theStark County, Case No. 2021CA00016 7
premises are kept open for public use and whether or not the ow ner, lessee, or occupant denies entry to certain individuals. {¶25} Appellant argues immunity provided under R.C. 1533.181 (A) does not apply as, the property is residential, the zipline does not con stitute a building or structure, Brynn Thomas was not a recreational user, and because the injur y was not caused by a defect in the premises. {¶26} To determine if property is residential or nonresidential the “ analysis should focus on the character of property upon which injury occurs and type of activities for which property is held open to public use.” Miller v. City of Dayton , 42 Ohio St.3d 113, 537 N.E.2d 1294 (1989). This character must include the typical ele ments of recreational areas “such as land, water, trees, grass, and other vegetation. ” Id

. {¶27} In the case sub judice , Appellees rent out the residence, a duplex, located on the property. The residence is located on a separate parcel of land than the pond and zipline. Appellees made use of the pond and zipline many times while the residence was rented. The character of the parcel of property containing the zipline and pond are clearly being used for recreational activities not associated with the residence on a different parcel of land. Therefore, the property on which the zipline an d pond sits is nonresidential property. {¶28} The term “premises” is defined as “all privately owned lands, w ays, and waters, and any buildings or structures thereon, and all privat ely owned and state-owned lands, ways, and waters leased to a private person, firm, or or ganization, including any buildings and structures thereon.” R.C. 1533.18.Stark County, Case No. 2021CA00016 8 {¶29} Appellant argues the definition of “structure” in R.C. 1521.01 should be applied. This definition states, “a walled and roofed building, including, without limitation, gas or liquid storage tanks and manufactured homes.” However, R .C. 1521.01 clearly indicates the definitions contained therein should only apply t o chapter 1521, and the legislature did not extend these definitions to chapter 1533. {¶30} In LiCause v. City of Canton , 42 Ohio St.3d 109, 537 N.E.2d 1298 (1989), the State of Ohio Supreme Court found a cable strung between tw o light poles in a park sufficient to be considered a structure within the meaning of R .C. 1533.18. {¶31} In the case sub judice , the zipline system is a platfo rm, affixed to a tree, with a cable running between two trees. The system had been in place since 2010 and was not portable/movable. As such, the zipline system is a structur e for the purposes of R.C. 1533.18. {¶32} Appellant next contends that Brynn Thomas was not a recreationa l user. “Recreational user” is defined as “a person to whom permission has been granted, without the payment of a fee or consideration to the owner, lessee, or occupant of premises ... to enter upon premises to hunt, fish, trap, camp, hike, or swim, o r to operate a snowmobile, all-purpose vehicle, or four-wheel drive motor vehicle, or to e ngage in other recreational pursuits.” R.C. 1533.18. Appellant agrees no fee was paid by B rynn to attend the party; however, they argue Appellees received some benefit from Brynn’ s attendance. “Consideration should not be deemed given under R.C.1533.18(B) unless it is a charge necessary to utilize the overall benefits of a recreational are a so that it may be regarded as an entrance or admittance fee.” Moss v. Dep’t of Natural Resources , 62 Ohio St.2d 138, 142, 404 N.E.2d 742 (1980).Stark County, Case No. 2021CA00016 9 {¶33} In Moss v. Dep’t of Natural Resource , Appellant’s bought food, gas, and rented a canoe at the park, but did not pay an entrance fee. Id . The court held this did not constitute consideration under R.C. 1533.18(B). Id

. {¶34} In the case sub judice , Brynn paid no entrance fee. She was an invited guest of Defendant Chimera. Chimera did not pay a fee to Appellees fo r use of their property, but was granted permission by Appellees as a favor. Appellants’ contention that maintaining a close relationship between Chimera and Appellees is consideration for use of the premises is without merit. {¶35} Finally, Appellants argue that immunity under R.C. 1533.181 sho uld not be granted because the injury was not a result of a defect in the premises. This appears to be a rehash of the argument that the zipline should not be cons idered a structure. Appellant argues Appellees should be liable because of defects in the zipline structure system such as overgrowth of vegetation into the zipline system and slippery coating in the middle of the handle bar. These directly relate to the owne r’s duty to keep the premises safe for use. As such Appellees are immune from liabil ity under Ohio’s Recreational User Statute. Appellant’s argument is without meri t. {¶36} Appellant’s First Assignment of Error is overruled.
II. {¶37} In Appellant’s Second Assignment of Error, Appellant argues the trial court erred in granting summary judgment in favor of Appellees on the issue of spoliation. We disagree. {¶38} The tort of spoliation was first recognized by the Supreme Cour t of Ohio in Smith v. Howard Johnson Company, Inc. , 67 Ohio St.3d 28, 29 615 N.E.2d 1037 (1993):Stark County, Case No. 2021CA00016 10

A cause of action exists in tort for interference with or destr uction of evidence; (2a) the elements of a claim for interference with or destruction of evidence are (1) pending or probable litigation involving th e plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrup t the plaintiff’s case, (4) disruption of the plaintiff’s case, and (5) damages p roximately caused by the defendant’s acts; (2b) such a claim should be rec ognized between the parties to the primary action and against third par ties; and (3) such a claim may be brought at the same time as the primary act ion. {¶39} “Speculation and allegations that evidence was willfully destro yed so as to disrupt a party’s case will not suffice to create a genuine iss ue of material fact that precludes summary judgment.” Widok v. Estate of Wolf , 8 th Dist. Cuyahoga No. 108717, 2020-Ohio-5178, ¶122. {¶40} After the incident and before Appellees were notified of pendin g litigation, Appellees replaced the zipline syst em. They did not retain the old one. During depositions Appellees indicated they had no notice of pending litigation fr om either Appellants or Codefendant Chimera. Appellants provided no evidence that Appelle es had knowledge of pending or probable litigation when they replaced the zipline s ystem. Since mere allegations and speculation of knowledge is insufficient and vi ewing all the evidence in the light most favorable to Appellants, they have failed to sho w Appellees willfully destroyed evidence with knowledge of pending or probable litiga tion. {¶41} Appellant’s Second Assignment of Error is overruled.Stark County, Case No. 2021CA00016 11 {¶42} Given our disposition of Appellant’s Assignment of Errors, Appe llee’s Cross Assignments of Error are rendered moot. {¶43} For the foregoing reasons, the judgment of the Court of Common Pleas of Stark County, Ohio, is hereby affirmed.

By: Wise, J. Baldwin, P. J., and Gwin, J., concur.

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