An Ohio state appeals court has reversed the ruling of a trial court, finding that the judge failed to properly consider evidence in a case involving a cycling accident that led to a concussion.
Specifically, the trial court failed to properly consider rebuttal evidence regarding whether a cyclist’s behavior was within the bounds of the inherent risks of group cycling or whether it constituted reckless conduct.
David J. Weglicki and his wife, Laura Weglicki filed a complaint in the Geauga County Court of Common Pleas, alleging two claims for relief: (1) Mr. Valeriy A. Rachitskiy acted in a negligent, reckless, wanton, and/or intentional manner when he stopped suddenly while he and Mr. Weglicki were cycling in a pace line, causing Mr. Weglicki to crash into him (suffering a concussion), and (2) a loss of consortium on behalf of Mrs. Weglicki. Mr. Rachitskiy filed an answer, asserting several affirmative defenses, including the doctrine of primary assumption of risk.
Rachitskiy filed a motion for summary judgment, contending that the doctrine applied and that he did not act recklessly or intentionally to injure Mr. Weglicki. He also pointed to his deposition, in which he testified that he dropped his left hand to show he was stopping. He further argued that a collision is a foreseeable risk when riding in a group of cyclists. A partial transcript of Mr. Rachitskiy’s deposition was attached to his motion for summary judgment, as well as his affidavit. He also separately filed the complete deposition.
In his deposition, Mr. Rachitskiy testified that he and Mr. Weglicki were members of the Cleveland Touring Club. The Cleveland Touring Club would organize rides several times a week, which typically lasted an average of two hours and covered a distance of approximately 40 miles (riding at an average pace of 20 mph).
On the day of the incident, the Cleveland Touring Club held a ride beginning in Chagrin Falls. Mr. Rachitskiy and Mr. Weglicki, who had ridden together before, were in the “B group” along with several other riders, including Peter Snitzer (Mr. Snitzer) and the group leader, Craig W. Connors (Mr. Connors). Mr. Connors gave general instructions before the ride, including the admonition to “[s]tay together as a group, wait for the people who behind [sic] and keep it at the same pace. Keep a single line.” The riders cycled in a “pace line,” which Mr. Rachitskiy described as “one person, one rider after another in real close proximity.” The purpose of a pace line is based on aerodynamics, i.e., allowing faster riding with less energy expenditure by helping the riders behind the pace leader avoid air resistance.
On the return ride, Mr. Rachitskiy decided to break away from the group and ride directly to his home instead of returning to the starting location. The group was riding westbound on Bell Street, a few miles from the starting location. On similar past rides, Mr. Rachitskiy typically broke away from the group and turned right onto Hemlock Rd. On the day of the incident, it was blocked due to construction, so he decided to turn right on Fairview Rd. He began to slow down, cognizant of the people who were riding behind him. After Mr. Snitzer passed him on the right, Mr. Rachitskiy decided to come to a complete stop to let the other riders pass before he turned right. When he stopped, Mr. Weglicki hit him from behind on Mr. Rachitskiy’s left side. Mr. Rachitskiy’s wrist and ribs were injured in the collision.
Before slowing down, Mr. Rachitskiy dropped his left-hand “to show that I was stopping,” which is a customary sign for slowing down. He did not call out a verbal warning to the other riders. He believes he learned the hand signals used by riders to communicate in group cycling from the Cleveland Touring Group.
In their brief in opposition to summary judgment, the Weglickis contended the risk that led to Mr. Weglicki’s injuries was not a foreseeable risk of cycling, i.e., the risks of cycling do not include a fellow rider riding ahead in a pace line to stop suddenly without warning. He further argues that even if the primary assumption of risk doctrine applied due to the inherent dangers of cycling in a pace line, Mr. Rachitskiy’s action were reckless because he failed to adequately signal prior to abruptly stopping.
The trial court did not allow partial, court-reporter certified depositions of Mr. Weglicki, Mr. Rachitskiy, Mr. Snitzer, and Mr. Connors, as well as an affidavit and expert report of Edward M. Stewart. In sum, the testimony supported their contention that Mr. Rachitskiy was liable.
After it ruled for the defendant, the plaintiffs appealed.
“The trial court based its findings of fact solely on Mr. Rachitskiy’s deposition,” wrote the appeals court. “As to its conclusions of law, the trial court first found that the primary assumption of risk doctrine applied to the Weglickis’ negligence claim and that Mr. Rachitskiy owed no duty to Mr. Weglicki. Further, Mr. Rachitskiy met his initial burden on summary judgment by establishing that (1) he and Mr. Weglicki were participants in bicycling, a sporting event in which collisions are an inherent risk; and (2) Mr. Weglicki assumed all the risks inherent in the sport of bicycling. The trial court found the Weglickis failed to provide rebuttal evidence.
“Secondly, as to intentional/reckless/wanton misconduct, the trial court found that stopping is a foreseeable, customary part of bicycling and that Mr. Rachitskiy’s evidence showed he intended to stop in a safe manner, allow the bicyclists behind him to safely pass, and then turn towards his home. Mr. Rachitskiy met his initial burden by establishing no harm, intentional or otherwise, was intrinsically tied to his conduct. Again, the trial court found the Weglickis failed to provide rebuttal evidence.
“Similarly, the trial court found there was no evidence to show that Mr. Rachitskiy acted recklessly because he established that (1) he acted carefully to avoid causing an accident and (2) there was no evidence to show that Mr. Rachitskiy recognized stopping would result in a significantly higher risk of the occurrence of serious harm. Thus, Mr. Rachitskiy met his initial summary judgment burden, and the Weglickis failed to provide rebuttal evidence. Furthermore, there was no evidence of wanton misconduct since Mr. Rachitskiy showed not only that he owed no duty, but that he acted carefully and tried to avoid injuring anyone, and the Weglickis failed to provide rebuttal evidence.”
The appeals court went to note that it “appears the trial court did not consider the depositions. The trial court found the Weglickis failed to submit any rebuttal evidence after finding that Mr. Rachitskiy met his initial burden as the moving party on summary judgment and awarded Mr. Rachitskiy summary judgment on this basis. Even though an appellate court reviewing an award of summary judgment must conduct its own examination of the record, if the trial court does not consider all the evidence before it, an appellate court does not sit as a reviewing court, but becomes, in effect, a trial court. Peterson v. Martyn, 10th Dist. Franklin No. 17AP-39, 2018-Ohio-2905, ¶ 51; Murphy at 360. Accordingly, the failure of the trial court to thoroughly examine all appropriate materials filed by the parties before ruling on a motion for summary judgment constitutes reversible error. Id.
“As to the Weglickis’ expert report by Mr. Stewart, the trial court found that it could not be considered because Mr. Stewart relied on facts not in evidence and cited to Rilley v. Brimfield Twp., 11th Dist. Portage No. 2009-Ohio-0036, 2010-Ohio-5181, ¶ 56, without identifying what those ‘facts not in evidence’ were. In Rilley, we determined that the expert report was properly excluded from consideration on summary judgment because no evidence was offered as to the expert’s qualifications, and none of the documents upon which the expert based his formulation of the events of the night of the incident were attached to the affidavit, authenticated by affidavit, or in the record. Id. at ¶ 62.
“In forming his expert opinion, Mr. Stewart reviewed the depositions attached to the Weglickis’ brief in opposition to summary judgment, as well as an incident police report, and personally inspected the scene of the crash. He also reviewed Mr. Rachitskiy’s deposition transcript, which was filed in the action.
“While police reports contain hearsay, portions of a report may be admissible under the public records hearsay exception, particularly in the summary judgment exercise. See, e.g., Muncy v. Am. Select Ins. Co., 129 Ohio App.3d 1, 5, 716 N.E.2d 1171 (10th Dist.1998). The fact that the expert reviewed a police report does not, standing alone, support the exclusion of his report and affidavit, when other evidentiary quality materials underlie his report and affidavit.
“Even if the report is completely inadmissible, the deposition testimony in this record could potentially support a different conclusion from Mr. Rachitskiy’s, thus raising a genuine issue of material fact.
“Accordingly, we find the assignments of error have merit, and we reverse and remand for the trial court to consider whether the Weglickis’ rebuttal evidence raised a genuine issue of material fact as to whether Mr. Rachitskiy acted recklessly by slowing down and then coming to a complete stop while riding in a pace line during a group bicycle ride.”
David J. Weglicki, et al. v. Valeriy A. Rachitskiy; Ct. App. Ohio, 11th App. Dist.; CASE NO. 2021-G-0010; 1/31/22