[Cite as Inskeep v. Columbus Zoological Park Assn.,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: CHERYL INSKEEP, ET AL. : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiffs-Appellants : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 22 CAE 05 0039 COLUMBUS ZOOLOGICAL PARK : ASSOCIATION, ET AL. : : OPINION Defendants-Appellees

CHARACTER OF PROCEEDING: Civil appeal from the Delaware County Court of Common Pleas, Case No. 20 CV C 08 0345

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: January 31, 2023

APPEARANCES:

For Defendants-Appellees For Plaintiffs-Appellants

WILLIAM R. THOMAS JOEL M. SPITZER 163 N. Sandusky Street, St. 103 495 South State Street Delaware, OH 43015 Marion, OH 43302 Delaware County, Case No. 22 CAE 05 0039 2

Gwin, P.J.

{¶1} Appellants Cheryl and Larry Inskeep appeal the April 27, 2022 judgment

entry of the Delaware County Court of Common Pleas granting appellees’ motion for

summary judgment. Appellees are the Columbus Zoological Park Association dba the

Columbus Zoo and Aquarium (“Zoo”), and Tessa Wilhelm.

Facts & Procedural History

{¶2} On August 12, 2020, appellants filed a complaint against appellees for

negligence and loss of consortium due to a golf cart hitting Mrs. Inskeep during a visit to

the Zoo. Appellees filed a motion for summary judgment on February 4, 2022. Appellants

filed a memorandum contra on March 31, 2022. Appellees filed a reply brief on April 12,

2022. The parties submitted the depositions of: Mrs. Inskeep, Randall Judge, Vice

President of Animal Health at the Zoo, Carman Wirtz, Senior Vice President of Human

Resources at the Zoo, Detective Rashad Pitts from the Delaware County Sheriff’s Office,

and Tessa Wilhelm, a veterinary technician at the Zoo. Appellees also submitted the

affidavits of Nick Way, the Manager of Safety and Risk Management at the Zoo, and John

Gannon, the Vice President and General Manager of Zoombezi Bay at the Zoo.

{¶3} The following facts are found in the depositions and affidavits submitted by

the parties.

{¶4} On August 28, 2018, Mrs. Inskeep went to the Zoo with her daughter, Lori.

Lori was walking a little bit ahead of her mother. As they were going around a corner

towards the Australia exhibit, Mrs. Inskeep felt something against her leg and the “next

thing [she] remember[ed] is I was on the ground on my back, and my hand was up above

my head.” When Lori first saw the golf cart, it was parked to her left, about five feet away. Delaware County, Case No. 22 CAE 05 0039 3

There was nobody in or near it. There was a Zoo employee ahead of Lori and her mother

on the right who was talking to another guest. Lori described the golf cart as “coming in

behind her” and then her mother was down in the grass. Lori did not see the golf cart hit

her mother. After the golf cart hit Mrs. Inskeep, it stopped at the curb. Lori saw a small

child in the golf cart.

{¶5} Detective Pitts was dispatched to the Zoo on August 28th. The call initially

came in that a drunk individual was operating a golf cart; however, when he arrived, he

met with Zoo security and discovered a three-year old child operated an unattended golf

cart. When he arrived, Mrs. Inskeep had already been transported to the hospital.

{¶6} On August 28, 2018, Wilhelm was operating a standard electric golf cart.

She was retrieving signs she had set out for a veterinary technician conference that day.

Initially, there was another employee in the golf cart with her; however, Wilhelm dropped

her off at the “Shores” region of the Zoo. As Wilhelm was gathering the signs, she quickly

hopped out of the golf cart, picked up each sign, and then hopped back into the cart.

When she stopped to pick up the signs, she did not turn the golf cart off.

{¶7} Wilhelm stopped the golf cart near the kangaroo exhibit to pick up a sign.

When she parked the golf cart, she left the ignition on, but took the key out of the ignition.

She engaged the brake. While she was picking up the sign, someone stopped her to ask

for directions. She heard the emergency brake unclick as she was talking to the guest.

She turned around and saw Mrs. Inskeep had been hit by the golf cart and was in the

grass. Wilhelm saw a child in the golf cart. Wilhelm then went to help Mrs. Inskeep and

called security. Delaware County, Case No. 22 CAE 05 0039 4

{¶8} Wilhelm confirmed the particular golf cart she was operating that day could

be operated without the key if the ignition was left on, and that she knew about this before

the incident occurred. When asked, “when you removed the key with the golf cart on, you

knew that it could still be operated without the key,” Wilhelm stated, “correct.”

{¶9} The Zoo’s policy is that if golf carts are on Zoo grounds during hours that

the Zoo is open to the public, they must be escorted, i.e., there must be a person walking

in front of the vehicle to clear the path. This is done for “safety reasons.” It is also Zoo

policy that golf cart use during Zoo hours should be for emergencies only. Wirtz stated

that collecting signs is not an emergency.

{¶10} The Zoo employees stated they are not aware of a guest either at the Zoo

or its waterpark Zoombezi Bay ever getting into a golf cart without permission or consent.

{¶11} Several individuals agreed that, at some point, there were little cars children

could play in at the Zoo, but neither Judge nor Wilhelm could remember when the cars

were there, or when they were removed. Way stated there used to be “prop safari jeeps”

with advertisements or logos on them that were used for promotional purposes. Way

averred these “safari jeeps” did not look similar to golf carts, and that one of the prop

safari jeeps was last used in 2019 as an advertisement in the “Islands” portion of the Zoo.

{¶12} The trial court issued a judgment entry granting appellees’ motion for

summary judgment on April 27, 2022. The trial court found appellees were not liable for

negligence, as a matter of law, because: (1) the Zoo did not owe a duty to Mrs. Inskeep

because it did not, in the exercise of ordinary care, know of the danger and (2) appellants

could not establish proximate cause because the action of the child was an intervening

cause that was not reasonably foreseeable, thus breaking the chain of causation. Delaware County, Case No. 22 CAE 05 0039 5

{¶13} Appellants appeal the April 27, 2022 judgment entry of the Delaware County

Court of Common Pleas and assign the following as error:

{¶14} “I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT BECAUSE WHETHER OR NOT DEFENDANT

BREACHED ITS DUTY OF ORDINARY CARE IN THIS MATTER IS A GENUINE ISSUE

OF FACT THAT SHOULD BE RESOLVED BY A JURY.

{¶15} II. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT BECAUSE WHETHER OR NOT THE THREE-YEAR-OLD

BOY WAS A SUPERSEDING/INTERVENING CAUSE OF THE INJURY TO

PLAINTIFFS’ IS A GENUINE ISSUE OF FACT THAT SHOULD BE RESOLVED BY A

JURY.”

{¶16} In their assignments of error, appellants contend the trial court committed

error in granting appellees’ motion for summary judgment.

Summary Judgment Standard

{¶17} Civil Rule 56 states, in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action, show that there is no genuine issue of 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 Delaware County, Case No. 22 CAE 05 0039 6

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. A summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a genuine issue as

to the amount of damages.

{¶18} A trial court should not enter summary judgment if it appears a material fact

is genuinely disputed, nor if, construing the allegations most favorably towards the non-

moving party, reasonable minds could draw different conclusions from the undisputed

facts. Hounshell v. Am. States Ins. Co.,

,

(1981). The

court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer

Co. v. Browning-Ferris Inds. Of Ohio, Inc.,

,

(1984). A

fact is material if it affects the outcome of the case under the applicable substantive law.

Russell v. Interim Personnel, Inc.,

,

(6th Dist.

1999).

{¶19} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc.,

,

(1987). This means we review the matter

de novo. Doe v. Shaffer,

,

,

.

I. & II.

{¶20} In a negligence case, a plaintiff must prove that: (1) the defendant owed the

plaintiff a duty; (2) the defendant breached that duty; (3) the plaintiff suffered harm; and Delaware County, Case No. 22 CAE 05 0039 7

(4) the harm was proximately caused by defendant’s breach of duty. Mussivand v. David,

,

(1989).

{¶21} The trial court found the Zoo did not owe a duty to Mrs. Inskeep because it

did not, in the exercise of ordinary care, know of the danger. The existence of a duty is

a question of law for a court to decide on a case-by-case basis. Id; March v. Steed

Enterprises, Inc., 5th Dist. Muskingum No. CT2012-0058,

.

{¶22} In a premises liability case, the relationship between the owner of the

premises and the injured party determines the duty owed.

In tort law, “there is no duty

to control the conduct of a third person by preventing him or her from causing harm to

another, except in cases where there exists a special relationship between the actor and

the third party, which gives rise to a duty to control.” Simpson v. Big Bear Stores Co.,

,

(1995). One type of special relationship that may give

rise to a duty to prevent a third person from causing harm to another is that between a

business owner and invitee.

A business premises owner owes its invitees a duty to

exercise ordinary care to maintain its premises in a reasonably safe condition and to warn

invitees of known or latent dangers. Holdshoe v. Whinery,

,

(1968). However, the owner and occupier of land is not an insurer of the safety of

the patrons whom they invite on the land.

{¶23} Both appellants and appellees agree that Mrs. Inskeep’s relationship with

the Zoo was that of a “business invitee.” Accordingly, the Zoo owes Mrs. Inskeep a duty

to exercise ordinary care and to protect her by maintaining the premises in a safe

condition. Delaware County, Case No. 22 CAE 05 0039 8

{¶24} Whether a duty exists depends on the foreseeability of the injury. Menifee

v. Ohio Welding Products, Inc.,

,

(1984). An injury is

foreseeable if a defendant knew or should have known that his act was likely to result in

harm to someone. Mudrich v. Std. Oil Co.,

,

(1950). This

Court has stated that the duty element of negligence may be established by common law,

by legislative enactment, or by the particular circumstances of a given case. Clifford v.

Licking Baptist Church, 5th Dist. Licking No. 09 CA 0082,

.

{¶25} Because of the lack of caselaw concerning the specific facts at issue in this

case, appellees focus on caselaw concerning whether a landowner is shielded from

liability for injuries caused by the criminal conduct of a third person.

{¶26} However, when this Court has examined whether, as a matter of law, there

is sufficient evidence to demonstrate the foreseeability of a crime when a third person

commits a criminal act, we focus on factors including the occurrence of previous similar

crimes, the specifics of the criminal incident itself, and other criminal activity near the

business. March v. Steed Enterprises, 5th Dist. Muskingum No. CT2012-0058, 2013-

Ohio-4448. These factors do not apply in this situation because the third person (the

child) did not commit a criminal act.

{¶27} Rather, we find the facts in this case more analogous to the Ohio Supreme

Court case of Holdshoe, in which the Court found that the owner of a resort area owed a

duty to a patron who was eating at a picnic table and was injured when a car owned by

another patron rolled downhill and hit her.

,

(1968).

The Court noted there were specific circumstances that caused this duty to arise,

including the fact that the owner made extensive improvements on the land to encourage Delaware County, Case No. 22 CAE 05 0039 9

patronage, the total failure of the owner to take precautions when he knew vehicles were

parking on a steeply sloped area, and the fact that the plaintiff introduced evidence that it

was common in the area for owners of sloping land to use logs and fences to keep cars

safely parked.

{¶28} Appellees encourage this Court to focus solely on the fact that there is no

evidence any prior similar incident occurred at the Zoo. However, with regards to third

party liability, this Court has adopted the “totality of the circumstances” test, in which a

court must examine the totality of the circumstances in determining whether the third

party’s actions were foreseeable, and determine whether a reasonably prudent person

would have anticipated an injury was likely to occur. McLaughlin v. Speedway, L.L.C.,

5th Dist. Stark No. 2015CA00184,

. Additionally, this is not a case in

which the person who was injured exceeded the scope of their invitation as a matter of

law. Wanko v. Downie Productions, Inc., 10th Dist. Franklin No. 99AP-1047,

(child was injured when he climbed into a golf cart and crashed into a truck; the

court held the injured child exceed the scope of his invitation as a business invitee).

{¶29} Like in Holdshoe, when we utilize the totality of the circumstances test in

this case, we find there are specific circumstances which caused a duty to arise. First,

prior to the incident, Wilhelm knew this particular golf cart could be operated without the

key if the ignition was left on and, despite this knowledge, she left the golf cart on when

she hopped out of the cart to pick up each sign. Further, during the incident, Wilhelm

violated two Zoo policies, i.e., there was no employee escorting the golf cart, and

collecting signs was not an emergency. Upon our de novo review, we find the trial court

committed error in finding, under the totality of the circumstances, the Zoo owed no duty Delaware County, Case No. 22 CAE 05 0039 10

to Mrs. Inskeep as a business invitee. Further, we find there are genuine issues of

material fact as to whether this duty was breached.

{¶30} The trial court also granted summary judgment for appellees because it

determined appellants could not establish proximate cause, as the action of the child was

an intervening cause that was not foreseeable. Appellees contend that, like criminal

behavior, the child’s act of jumping into the golf cart and hitting the gas pedal was an

unforeseeable, intervening act which breaks the causal link between the Zoo and the

injury suffered by Mrs. Inskeep.

{¶31} Negligent conduct is the proximate cause of an injury if the injury is the

natural and probable consequence of the conduct. Mussivand v. David,

,

(1989). An injury is the natural and probable cause of the negligent

conduct if the injury might and should have been foreseen.

An injury is foreseeable

if a reasonably prudent person, under the same or similar circumstances, would have

anticipated that injury to another was the likely result of his conduct.

{¶32} A defendant may be relieved of liability for his negligent conduct if an

intervening act breaks the causal connection between the defendant’s negligence and

the injury. Berdyck v. Shinde,

,

(1993).

{¶33} The intervention of independent or intervening forces will not break the

causal connection between a negligent act if the intervention of such forces was itself

probable or foreseeable. Holdshoe v. Whinery,

,

(1968). However, it is not necessary that the person charged with negligence should

have foreseen the precise injury which resulted from his act or failure to act.

The

intervening act of a third person does not necessarily relieve the owner of an earlier Delaware County, Case No. 22 CAE 05 0039 11

negligent act from liability when the intervening cause of an injury is of such nature as

could reasonably have been anticipated.

The test for the break in causation is

“whether the original and successive acts may be joined together as a whole, linking each

of the actors as to the liability, or whether there is a new and independent act or cause

which intervenes and thereby absolves the original negligent actor.” Hale v. State Farm

Mut. Auto. Ins. Co., 5th Dist. Stark No. 2017CA00223,

, quoting Cascone

v. Herb Kay Co.,

,

(1983). An intervening act is an

“independent” cause “if the intervening act was capable of producing the injury

irrespective of the original negligence, was not set in motion by the original negligence,

and was not simply a condition on or through which the original negligence operated to

produce the injurious result.”

citing Mudrich v. Standard Oil Co.,

,

(1950).

{¶34} This is not a case in which a theft of a motor vehicle or other criminal act is

a sufficient superseding cause, as a matter of law, to break the chain of causation.

Pendrey v. Barnes,

,

(1985) (theft of motor vehicle is

sufficient superseding cause to, as a matter of law, absolve defendant from negligence);

Lagowski v. Shelly and Sands, Inc., 7th Dist. Belmont No. 13 BE 21,

(theft of bulldozer is intervening or superseding cause breaking the chain of proximate

cause). Rather, this is a case where reasonable minds may differ as to whether there

was a break in causation. Hale v. State Farm Mut. Ins. Co., 5th Dist. Stark No.

2017CA00223,

; Pavlides v. Niles Gun Show, Inc.,

,

(5th Dist. Stark 1994) (reasonable minds could conclude a loaded firearm Delaware County, Case No. 22 CAE 05 0039 12

in a child’s hands may negligently be discharged, thus, summary judgment was

inappropriate).

{¶35} We find reasonable minds could differ as to whether the act of the child

constituted an intervening or superseding cause, and whether the intervening cause was

reasonably foreseeable by the Zoo when a Zoo employee left a golf cart unattended and

running, with the knowledge that a key was not necessary to start the golf cart. Thus, we

find the trial court committed error in concluding, as a matter of law, that the causal

connection was broken by the child’s actions.

{¶36} The trial court granted appellees’ motion for summary judgment on Mr.

Inskeep’s claim for loss of consortium because the loss of consortium claim is derivative

of Mrs. Inskeep’s tort claim. “[A] claim for loss of consortium is derivative in that the claim

is dependent upon the defendants having committed a legally cognizable tort upon the

spouse who suffers bodily injury.” Bowen v. Kil-Kare, Inc.,

,

(1992). Because we found there are genuine issues of material fact as to appellees’

negligence with regard to Mrs. Inskeep, we find the trial court committed error in granting

summary judgment on Mr. Inskeep’s claim for loss of consortium. Delaware County, Case No. 22 CAE 05 0039 13

{¶37} Based on the foregoing, appellants’ assignments of errors are sustained.

The April 27, 2022 judgment entry of the Delaware County Court of Common Pleas is

reversed and remanded for proceedings consistent with this opinion.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur