Aber v. Zurz – Case Brief Summary (Ohio)

In Aber v. Zurz, 175 Ohio App.3d 385, 2008 Ohio 778, 887 N.E.2d 381, the Ninth District considered whether the trial court improperly granted summary judgment in favor of a boat operator, rather than the rider of a water tube pulled by the boat. Id.

The boat operator was traveling at a high rate of speed in a crowded water ski zone and was forced to make a sharp turn to avoid hitting other people or boats. Id. at P2.

Due to the speed of the boat, the tube flipped and the tube rider sustained a broken jaw. Id.

In his complaint, the rider asserted that the boater negligently and recklessly operated the boat. Id. at P3.

In response, the boater filed a motion for summary judgment, arguing that the doctrine of primary assumption of the risk worked to bar a negligence claim. Id.

He further argued that the evidence did not show that he had acted recklessly. Id.

The rider responded, arguing that the doctrine of primary assumption of the risk did not apply because the risk was not one that was inherent to the activity of tubing. Id.

Instead, the rider argued that the doctrine of implied assumption of the risk applied. Id. at P8.

Implied assumption of the risk involves situations where "there will be attendant circumstances that raise questions of fact whether an injured party assumed the risk in a particular situation." Id. at P10, citing Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431, 1996 Ohio 320, 659 N.E.2d 1232.

The tube rider also argued that if the primary assumption of the risk doctrine applied, the issue of whether the boater acted recklessly was a question of fact for the jury to decide. Id. at P8.

The trial court granted summary judgment in favor of the boater, finding that tubing is a recreational activity and the evidence proved the rider's injury resulted from conduct that was a foreseeable and customary part of tubing, thus the doctrine of primary assumption applied to bar the rider's negligence claim. Id. at P12.

The trial court further determined that the boater was not reckless. Id. at P3.

In conducting its analysis, the Ninth District considered the following factors.

First, the rider conceded at trial that falling off a tube is a foreseeable and customary risk of tubing at a reasonable speed. Id. at P13.

However, the circumstances contributing to the rider's injury "included a speeding boat, a crowded ski lane, and an unexpected sharp turn." Id. at P12.

Additionally, the boater himself admitted that he went too fast the day of the accident, and "if he had to do it over again," he would have handled the boat differently. Id. at P13.

The Aber court found that although tubing is a recreational activity, the risks involved in the case were not customary and foreseeable as a matter of law. Id. at P12.

The court explained that the "specific facts of this case show that this risk was elevated by the speed of the boat and other conditions solely under the boater's control." Id. at P14.

Thus, the court concluded that the rider "could not have foreseen this elevated risk." Id.

The Aber court further explained that the risk created by the high speed of the boat "could have been eliminated by traveling at a typical speed." Id.

The court finally determined that "the risk of falling off a tube and breaking one's jaw in several places while being pulled at a high rate of speed in a crowded ski lane is not an inherent risk of tubing.

Therefore, the doctrine of primary assumption of the risk is inapplicable." Id. at P15.

The court also found that a reasonable jury could determine that the boater negligently operated the boat, and reversed and remanded the matter to the trial court. Id.

In Aber, the plaintiff, Aber, broke his jaw when thrown from an inflatable tube being pulled by a boat driven by Zurz. 175 Ohio App. 3d 385, 2008 Ohio 778 at P2, 887 N.E.2d 381.

The Ninth Appellate District noted that, although the boat was properly traveling in the designated water ski zone, the zone was crowded that day. Id.

Zurz was traveling at a high rate of speed and made a sharp turn to avoid other boats or people in the water, causing the tube to flip. Id.

The court recognized that "falling off the tube is a foreseeable and customary risk of tubing;" however, "Zurz was not traveling at a speed typical for tubing" based upon the deposition testimony of Aber and several of the boat's passengers. Id. at P13.

"The specific facts of this case show that this risk was elevated by the speed of the boat and other conditions solely under Zurz's control." Id. at P14. "Aber could not have foreseen this elevated risk." Id.

"The risk in this case was directly correlated to the high rate of speed of the boat" and "could have been eliminated by traveling at a typical speed." Id.

As a result, the court determined that primary assumption of the risk was inapplicable because "the risk of falling off a tube and breaking one's jaw in several places from being pulled at a high rate of speed in a crowded ski lane is not an inherent risk of tubing."