Passing Out Candy in a Parade is an “Inherently Dangerous Activity,” According to Ohio’s 5th District Court of Appeals.

Posted on July 23rd, 2014 by sutter-admin

Ohioans might have to be a little more careful when passing out candy during parades.  In a recent decision, Kinkade v. Noblet, the 5th District Court of Appeal concluded that a “parade” qualifies under the primary assumption of risk doctrine.  ¶13.   Essentially, a person who willingly participates in a parade assumes all the risks that go along with it, including being crushed by a float.

The plaintiff in Kinkade was passing out candy during a Halloween parade in Mansfield, Ohio. When she ran out, she would approach the float while it was stopped to get more candy.  One time, the float started to move before the plaintiff walked away.  The wheels of the float ran over her foot.

The plaintiff filed a lawsuit against the owner of the float and the driver.  She alleged that the defendants acted negligently, recklessly, and with willful disregard of her safety.  The trial court granted summary judgment in favor of the defendants. The judge concluded that the doctrines of primary assumption of risk and open and obvious barred plaintiff’s claims.  The plaintiff appealed.

The 5th District Court of Appeals had to determine whether the trial court erred in finding that the plaintiff’s claims were barred by the primary assumption of risk. The Court started by explaining the difference between primary assumption of risk and implied assumption of risk.  “Primary” assumption of risk provides that when people engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless they can demonstrate that the other participant’s actions were either reckless or intentional.

Implied assumption of risk, on the other hand, is not limited to recreational activities.  Implied assumption of risk applies when a person consents to be engaged in an appreciate, known, or obvious risk.  In Ohio, the doctrine of implied has since been merged with comparative negligence.

The Court concluded that a “parade” does, in fact, qualify under the primary assumption of risk doctrine.  ¶13.  Participating in a parade involves inherent risks that “cannot be eliminated.”  As the Court explained, “[w]e find the activity of walking along a moving float, distributing candy to spectators, and refilling one’s supply of candy from a float that stops and starts throughout the parade is an inherently dangerous activity.”  ¶18.  Therefore, the plaintiff could not recover unless she showed that the defendants acted recklessly.  No evidence of reckless existed.

The Court also found the wheels of the float were “open and obvious.”  Based upon a photo of the float, the Court was able to determine that the wheels were easily visible.  ¶24.  Moreover, the plaintiff made two previous trips to the same area of exposure.  ¶25.  Because the defendant did not have a duty to warn or protect against “open and obvious” dangers, they could not be liable for negligence.