IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiffs, : Case No. 12CV1245. v. : Judge Berens

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1 IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO MELISSA NICHOLS, ET AL., : Plaintiffs, : Case No. 12CV1245 v. : Judge Berens JONATHAN MILLER, ET AL., Defendants. : : : JUDGMENT ENTRY Denying Plaintiffs Motion for Summary Judgment as to Liability This matter is before the Court upon Plaintiffs Melissa and Tanner Nichols ( Plaintiffs ) Motion for Summary Judgment as to Liability Only, filed October 18, Defendant Jax & Associates, LLC filed a Memorandum Contra on December 3, Defendants Jonathan, Tina, and Savannah Miller filed a Memorandum Contra on December 11, Plaintiffs filed a Reply to Defendants Memoranda Contra on January 13, The Court requested further briefing, which the parties have provided and the Court has considered. The Court finds the issues have been fully addressed and Plaintiffs motion ripe for review. STATEMENT OF THE CASE This case arises from the March 18, 2012 incident involving a golf cart operated by Defendant Savannah Miller. On the day in question, Plaintiffs allege Defendant Savannah Miller (a minor) was operating the golf cart in an unsafe manner, which caused the golf cart to flip over and eject Plaintiff Tanner Nichols. Plaintiff Tanner Nichols suffered several injuries as a result of this incident. Prior to March 18, 2012, Savannah Miller had operated the golf cart in question. Both she and her parents (Defendants Jonathan and Tina Miller) were previously warned by a Fairfield 1

2 County Deputy that Savannah, as a 13-year-old child, was not permitted to operate the golf cart on a public roadway. Both Jonathan and Tina Miller had knowledge that Savannah was nevertheless operating the golf cart on the day of the incident. Plaintiffs filed several claims against the Miller defendants: negligence (Savannah), negligent entrustment (Jonathan and Tina), negligent supervision (Jonathan and Tina), consent to wrongdoing (Jonathan and Tina), and intentional infliction of emotional distress (Savannah, Jonathan, and Tina). Plaintiffs assert that no genuine issues of material fact remain in light of the Miller Defendants admissions and the uncontested facts surrounding the incident. The Miller Defendants argue that Plaintiff Tanner Nichols was contributorily negligent in causing the golf cart accident, thereby creating a genuine issue of material fact as to liability. The Miller Defendants argue that if a genuine issue of material fact exists as to Savannah Miller s negligence, it necessarily follows that a genuine issue of material fact exists as to Jonathan and Tina Miller s liability for negligent entrustment, negligent supervision, and consent to wrongdoing. Plaintiffs disagree with this contention, arguing that they need not prove the underlying negligence of the child to prevail on the claims asserted against her parents. LAW & ANALYSIS Ohio Civ. R. 56(A) and (B) permit both plaintiffs and defendants to move for summary judgment on all or part of any claim. Summary judgment is appropriate when (1) there is no genuine issue as to any 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 and that conclusion is adverse to 2

3 the party against whom the motion for summary judgment is made. Ohio Civ. R. 56(C); Harless v. Willis Day Warehousing Co., 8 O.O.3d 73, 375 N.E.2d 46, 47 (1978). The party moving for summary judgment has the initial burden of demonstrating the absence of any genuine issues of material fact, and must specifically delineate the basis for which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond. Mitseff v. Wheeler, 38 Ohio St. 3d 112, 116, 526 N.E.2d 798, 802 (1988); Dresher v. Burt, 75 Ohio St. 3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264, 274. In so doing, the moving party cannot rest on bare conclusory assertions that the non-movant lacks evidence or cannot prove her case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ. R. 56(C)[.] Dresher, at 293. If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the burden then shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Id. at 294. If the non-movant does not so respond, summary judgment, if appropriate, shall be entered against the non-moving party. Id; Egli v. Cong. Lake Club, 5th Dist. No CA-00216, 2010-Ohio-2444 (June 1, 2012), appeal not allowed, 126 Ohio St. 3d 1600, 2010-Ohio-4928, 935 N.E.2d 46; Ohio Civ. R. 56(E). The Court has reviewed the parties written arguments and evidence attached thereto. For purposes of clarity, the Court will address the claims asserted against Savannah Miller and the claims asserted against Jonathan and Tina Miller separately. A. Savannah Miller 3

4 Plaintiffs assert they are entitled to judgment as a matter of law on their negligence cause of action against Savannah Miller. Specifically, Plaintiffs argue that Savannah failed to exercise reasonable care and breached her duty to Tanner and the other five (5) passengers when she began chasing the second golf cart down a steep hill at unsafe speeds causing her to lose control of the golf cart, which subsequently caused it to flip ejecting the passengers. Defendants assert that Plaintiff Tanner Nichols jumped on the golf cart just before the incident and was at least partially responsible for flipping the golf cart. Defendants contend that Tanner Nichols alleged behavior creates a genuine issue of material fact as to Savannah s liability. The Court has reviewed the evidence submitted in support of the parties motions. Savannah Miller did admit to chasing a second golf cart on March 18, Savannah Miller also admitted that she lost control of the operation of the golf cart. See Answers 19, 20 to Plaintiffs Request for Admissions. However, these separate admissions do not establish the element of causation. Savannah Miller did not admit that she lost control of the operation of the golf cart because she was chasing a second golf cart. Instead, Savannah Miller stated that Tanner Nichols jumped on the golf cart overloading it and remained standing which caused it to be unstable. See Answer 27 to Plaintiffs Interrogatories. The Court finds this conflicting factual dispute (i.e. whether Tanner Nichols jumped on the golf cart) as to an important element of the claim (i.e. causation) constitutes a genuine issue of material fact. Therefore, Plaintiffs Motion for Summary Judgment as to the negligence of Savannah Miller is DENIED. B. Jonathan and Tina Miller 4

5 Plaintiffs argue that they are entitled to summary judgment on their claims for negligent entrustment, negligent supervision, and consent to wrongdoing against Jonathan and Tina Miller. Plaintiffs argue that Jonathan and Tina Miller should be liable for entrusting a motorized vehicle to a 13 year old without a driver s license. Similarly, Plaintiffs assert that Jonathan and Tina Miller should be liable for failing to supervise Savannah and for consenting to Savannah s operation of the golf cart. Plaintiffs emphasize two uncontested facts that support their position: (1) Jonathan and Tina Miller were warned by a Deputy Sheriff on a prior occasion that Savannah was not permitted to operate the golf cart, and (2) Jonathan and Tina Miller knew Savannah was operating the golf cart on March 18, Defendants argue that Plaintiffs cannot prevail on their claims of negligent entrustment, negligent supervision, and consent to wrongdoing without first establishing Savannah s negligence. Therefore, as a genuine issue of material fact exists as to Savannah s negligent operation of the golf cart, a genuine issue of material fact necessarily exists as to Tina and Jonathan Miller s allegedly improper entrustment, supervision, and consent. The Court finds Defendants argument unpersuasive, but nonetheless finds genuine issues of material fact preclude Plaintiffs from prevailing on their summary judgment motion against the Millers. The claims asserted against Jonathan and Tina Miller are not claims of vicarious liability (derivative of the negligence of another), but rather concern the conduct of the parents themselves in acting or failing to act in a reasonable manner. See generally Huston v. Konieczny, 52 Ohio St. 3d 214, 217, 556 N.E.2d 505 (1990); Ware v. King, 187 Ohio App.3d 291, Ohio-1637, 931 N.E.2d Thus, the fact that the Court found a genuine issue of material fact 5

6 exists as to Savannah Miller s negligence does not per se preclude Plaintiffs from prevailing on their summary judgment motion against Jonathan and Tina Miller. In order for Jonathan and Tina Miller to be liable for injuries caused by their daughter, Plaintiffs must show that, even when construing all evidence in favor of the Millers, reasonable minds could only conclude: Jonathan and Tina Miller negligently entrusted Savannah with an instrumentality (such as a gun or car) which, because of Savannah s immaturity or lack of experience, may become a source of danger to others. Huston, supra, at 217. Jonathan and Tina Miller failed to exercise reasonable control over Savannah when they knew, or should have known, that injury to another was a probable consequence. Id. at Jonathan and Tina Miller knew of Savannah s wrongdoing and consented to it, directed it or sanctioned it. Id. at 218. In considering whether the ultimate injury was foreseeable, Plaintiffs must prove that specific instances of prior conduct were sufficient to put a reasonable person on notice that the act complained of was likely to occur. Nearor v. Davis, 118 Ohio App.3d 806, 813, 694 N.E.2d 120 (1997); Ware, supra, at 22. The Court has reviewed the Miller Defendants admissions, which were attached to Plaintiffs Motion for Summary Judgment. It is undisputed that Tina and Jonathan Miller were aware that Savannah was operating the golf cart on the day of the incident. Tina and Jonathan 6

7 Miller also admitted that Savanna had driven the golf cart on previous occasions. Jonathan Miller admitted that he had a conversation with a Deputy Sheriff, prior to the date of the incident, who stated that Savannah was not permitted to operate the golf cart without a license. However, the Miller Defendants affirmatively denied that Savannah had operated the golf cart prior to March 18, 2012 without any parental supervision. See Answer 5 to Plaintiffs Request for Admissions. Further, while the Millers admitted to knowing about prior instances of Savannah driving the golf cart, there is no evidence before the Court that Jonathan and Tina Miller were aware of any dangerous driving, horseplay, or speeding associated with Savannah s operation of the golf cart on past occasions. Likewise, there is no evidence before the Court that Savannah had ever caused herself or any passenger injury by driving the golf cart in the past. See also Answer 17 to Plaintiffs Request for Admissions (denying that prior to March 18, 2012, Savannah was ever involved in a wreck/collision while operating the golf cart). By the evidence submitted to the Court, it is clear that Tina and Jonathan Miller knew that Savannah had driven the golf cart in the past. However, this does not end the inquiry. As stated above, the question is whether the specific instances of prior conduct were sufficient to put the Millers on notice that injury to another was a probable consequence or whether the golf cart may become a source of danger to others. As stated above, Plaintiffs have provided no evidence demonstrating that Savannah had a propensity for dangerous driving or that her parents were aware of any prior accidents or injuries resulting therefrom. Therefore, in construing the evidence in a light most favorable to Defendants, as it is required to do, the Court finds that reasonable minds could differ as to whether Jonathan and Tina Miller negligently entrusted the golf cart to Savannah, negligently supervised Savannah, and improperly consented to Savannah s 7

8 alleged wrongdoing. Plaintiffs Motion for Summary Judgment as to the claims asserted against Jonathan and Tina Miller is therefore DENIED. CONCLUSION For these reasons, the Court DENIES Plaintiff Melissa and Tanner Nichols Motion for Summary Judgment as to Liability. IT IS SO ORDERED. Copies to: Ryan Thomas and/or Joseph Nigh, 536 S. High St., Columbus, OH Thomas Mulvey, 30 Northwoods Blvd., Ste. 300, Columbus, OH Michael Vasko, 19 N. High St., Canal Winchester, OH Susan Petro, 338 S. High St., Second Floor, Columbus, OH Judge Richard E. Berens 8