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Hug v. Hake

2026-08-21

Summary

Holding. The trial court's grant of summary judgment in favor of all defendants is affirmed. The Hakes are immune from liability as landowners under the recreational-user statute, and Livensparger is relieved of liability under the recreational-activity doctrine because any injuries resulted from inherent risks of the activity and Livensparger's conduct was not reckless.

Candace Hug was injured when a utility vehicle (UTV) she was riding in with Tacia Livensparger flipped into a creek on property owned by Devin and Stacy Hake. The UTV's tire caught a washout at the edge of a bridge while traveling at low speed on an unlit trail at night. Candace was trapped under the vehicle, suffered a fractured neck vertebra, a fractured arm, and PTSD. The Hakes had invited Livensparger and Candace to their property for a social gathering and left the UTV unattended with keys in the ignition; no safety equipment was worn during either ride that evening.

Candace and her husband Jeffrey sued the Hakes and Livensparger for negligence and other claims. The defendants moved for summary judgment, which the trial court granted. The trial court found that the Hakes qualified for recreational-user immunity under Ohio law and that any injuries resulted from inherent risks of UTV riding. The trial court also determined that Livensparger was not reckless and therefore bore no liability under the recreational-activity doctrine. Jeffrey's derivative loss-of-consortium claim failed because Candace's underlying claims did not survive.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether the Hakes' property qualifies as nonresidential premises under the recreational-user immunity statute
  • Whether Candace was a recreational user entitled to invoke the recreational-user statute's protections
  • Whether the Hakes' conduct rose to the level of recklessness necessary to defeat immunity
  • Whether Candace's injuries resulted from ordinary risks inherent to UTV riding
  • Whether Livensparger's conduct as the UTV driver was reckless

Procedural posture

The Hugs appealed the trial court's grant of summary judgment to the Hakes and Livensparger following a UTV accident that injured Candace Hug.

Authorities cited

Opinion

majority opinion

[Cite as Hug v. Hake, 2026-Ohio-3272.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

WILLIAMS COUNTY

Candace M. Hug, et al. Court of Appeals No. {86}WM-25-024

Appellants Trial Court No. 24 CI 128

v.

Devin N. Hake, et al. DECISION AND JUDGMENT

Appellees Decided: August 21, 2026

*****

Charles E. Boyk, Andrea R. Young, Michael A. Bruno,

and Emily R. Warnimont, for appellants.

Lisa M. Lahrmer and Samuel N. Dodoo, for appellees,

Devin N. Hake and Stacy L. Hake.

J. Mark Trimble and Stephen E. House, for appellee,

Tacia R. Livensparger.

*****

MAYLE, J.

{¶ 1} Appellants, Candace Hug and Jeffrey Hug, appeal the November 25, 2025

decision of the Williams County Court of Common Pleas granting summary judgment in

favor of appellees, Devin Hake, Stacy Hake, and Tacia Livensparger. For the following

reasons, we affirm.

I. Background and Facts

{¶ 2} The Hakes own property in Edon, Ohio, that includes over 50 acres of land.

They farm about 20 acres, and the rest of the land includes their house, a garage, and a

shop, and features wooded areas, ponds, a creek, a shooting range, and trails running

through the woods.

{¶ 3} On the evening of May 26, 2024, the Hakes invited some people, including

Candace and Livensparger, over to their house for a social gathering. Devin was outside

at the bonfire, but Stacy was inside the house the whole night.

{¶ 4} The Hakes own a Polaris Ranger 1000 utility vehicle (“UTV”) that was

sitting out with the keys in the ignition that night. While it was light out, Livensparger

took Candace for a ride on the UTV around the Hakes’ yard. The women did not wear

helmets or other safety gear and did not use the seatbelts or safety netting the UTV was

equipped with. Candace did not have any complaints about Livensparger’s driving

during this ride.

{¶ 5} Later, after dark, around 11:15 or 11:30 p.m., Livensparger and Candace

decided to go for another ride on the UTV. A third woman went with them.

Livensparger was driving, Candace was in the far-right passenger seat, and the third

woman was in the middle. None of the women wore helmets or other safety gear or used

the seatbelts or safety netting the UTV was equipped with. Livensparger drove the UTV

onto the property, looking for a trail into the woods. She had the UTV’s headlights on,

but there was no other lighting on the trail. The grass was too tall on the first path she

started down, so she backed up and started heading toward the house. As she was

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returning to the house, she saw another trail. Because she was familiar with the area, she

went down the second trail. While traveling down the second trail at approximately 7 or

8 m.p.h., the right front tire of the UTV got caught in a washout on the edge of a bridge

over a culvert crossing the creek on the property, which caused the UTV to overturn into

the creek.

{¶ 6} When the UTV fell into the creek, Candace was trapped underneath it by her

hair. Her head was underwater, so to free herself and keep from drowning, she had to rip

her hair extensions partway off of her head. After she had done that, Livensparger found

her and helped her pull her extensions the rest of the way off her head so that she could

completely free herself from under the UTV. Livensparger then helped Candace to the

bank of the creek where they waited for help to arrive.

{¶ 7} Candace was life-flighted from the scene. She was ultimately diagnosed

with a fractured neck vertebra, a left radial-head fracture, and PTSD.

{¶ 8} Before the UTV accident, Livensparger had been to the Hakes’ property

approximately 50 times and had driven their UTV about five times, though never at night.

She had been around UTVs and all-terrain vehicles (“ATVs”) since she was young and

believed that she was a good driver. She had never been in a UTV or ATV crash before.

Devin had previously been a passenger when Livensparger was driving the UTV and did

not have any problems with her driving. He was unaware of her being in any UTV or

ATV accidents before this one.

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{¶ 9} The Hakes did not charge for UTV rides the night of the accident. They did

not give any instruction on using the UTV or guidance regarding the property’s features

or safe operation of the UTV.

{¶ 10} Based on these facts, the Hakes and Livensparger each moved for summary

judgment. In their motion, the Hakes argued that they were not liable to Candace under

R.C. 1533.181, the recreational user statute; Candace’s claims were barred by primary

assumption of the risk; Candace’s negligent entrustment claim failed because there was

no evidence that they knew Livensparger was an incompetent driver; and Jeffrey’s loss of

consortium claim, as a derivative claim, failed as a matter of law because none of

Candace’s other claims could survive summary judgment.

{¶ 11} The Hugs responded that the Hakes failed to timely assert a defense under

R.C. 1533.181; R.C. 1533.181 does not apply to the Hakes’ property because they do not

hold it open to the public and it is not “nonresidential”; Candace was not a “recreational

user” under the statute because she was not engaging in a qualifying recreational activity;

primary assumption of the risk did not bar the Hugs’ claims because the risks Candace

encountered were neither foreseeable nor customary to the activity of riding a UTV; even

if primary assumption of the risk applied, the Hakes could still be liable to the Hugs

based on recklessness; genuine issues of material fact precluded summary judgment on

negligent entrustment; and Jeffrey’s loss of consortium claim survived because

Candace’s claims survived summary judgment.

{¶ 12} In her motion, Livensparger argued that she was not liable to Candace

under the recreational activity doctrine, and there was no allegation of reckless or

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intentional conduct that could defeat application of that doctrine. The Hugs responded

that R.C. 1533.181 did not apply to Livensparger because she was not the owner, lessee,

or occupant of the premises where Candace was injured; genuine issues of material fact

remained regarding whether Livensparger increased the danger of the risks inherent to

riding a UTV; a jury could reasonably conclude that Livensparger’s conduct was

reckless, which would defeat her claim that the recreational activity doctrine applied; a

genuine issue of material fact existed regarding the cause of the accident because

Livensparger claimed the accident was caused by a washout, but Devin claimed that he

did not see any muddy or unstable conditions at the site immediately following the

incident; and Jeffrey’s loss of consortium claim survived because Candace’s claims

survived summary judgment.

{¶ 13} In its decision granting the Hakes and Livensparger summary judgment, the

trial court first found that the Hakes did not waive their recreational immunity defense.

Next, the court found that R.C. 1533.181 applied to shield the Hakes from liability to the

Hugs unless the Hakes’ actions were intentional or reckless. The court determined that

the Hakes were the owners of the property; Candace was a recreational user because she

was using the UTV for a recreational activity without paying a fee, and the classification

of the UTV did not preclude Candace from being a recreational user; and the part of the

Hakes’ property where the accident occurred was nonresidential because it was in an

undeveloped state and included features typical of recreational areas, such as land, water,

trees, grass, and other vegetation. The trial court also found that there was no evidence to

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support the Hugs’ theory that Livensparger was intoxicated, so the Hakes could not have

been reckless by allowing an intoxicated driver to use the UTV.

{¶ 14} Regarding the Hakes failure to warn of hazardous conditions, the court

found that Stacy was inside all night and had no knowledge of the activities happening

outside, and Devin believed that Livensparger was a competent driver, was not aware of a

washout by the bridge where the accident happened, and knew that the only other

incident involving the UTV was caused by Devin putting a heavy spray tank on it, which

caused it to tip. In short, the court found “no genuine issue of facts that would impute

knowledge that the Hakes knew or should have known that such conduct or knowledge or

risk, created an unreasonable risk of physical harm to another, but also that any such risk

was substantially greater than that which is necessary to make the conduct negligent . . .

.”

{¶ 15} Regarding negligent entrustment, the trial court found no genuine issues of

material fact in the record showing that Livensparger was an incompetent or intoxicated

driver or that the Hakes knew that she was an incompetent or intoxicated driver.

{¶ 16} Next, the trial court found that the recreational activity doctrine barred both

the Hakes’ and Livensparger’s liability to the Hugs. The court determined that Candace

knew of and assumed the ordinary risks of recreationally riding a UTV, which relieved

the other participants of liability for injuries occurring during the recreational activity

unless they were acting recklessly or intentionally. The court found that Livensparger

was not acting recklessly when she was driving the UTV. It concluded that there was no

evidence in the record to support the Hugs’ theories that Livensparger was intoxicated, or

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that Livensparger was an incompetent or inexperienced driver. It also found that the

attendant circumstances the Hugs pointed to (e.g., darkness and riding in the woods) did

not increase the risk of riding on a UTV.

{¶ 17} Finally, the court found that Jeffrey’s loss of consortium claim failed as a

matter of law because all of Candace’s claims failed.

{¶ 18} The Hugs now appeal, raising five assignments of error:

A. The trial court erred in granting summary judgment in favor of

Defendants Stacy and Devin Hake where genuine issues of material fact

exist as to whether the Hakes are entitled to immunity under R.C. 1533.181.

B. The trial court erred in granting summary judgment to Defendant

Tacia Livensparger where genuine issues of material fact exist as to

whether her conduct and actions increased the risks or dangers inherent in

the recreational activity.

C. The trial court erred in concluding the conduct of Defendants

Devin and Stacy Hake was not reckless where genuine issues of material

fact support a finding of recklessness sufficient to preclude immunity under

R.C. 1533.181.

D. The trial court erred in determining, as a matter of law, that

Plaintiff’s injuries arose from the ordinary risks inherent in the recreational

activity.

E. The trial court erred in dismissing the loss of consortium claim.

II. Law and Analysis

A. Summary judgment standard

{¶ 19} We review summary judgment de novo, using the same standard as the trial

court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996); Lorain Natl. Bank v.

Saratoga Apts., 61 Ohio App.3d 127, 129 (9th Dist. 1989). The court can grant a motion

for summary judgment only when the moving party demonstrates:

7.

(1) that there is no genuine issue as to any material fact; (2) that the

moving party is entitled to judgment as a matter of law; and (3) that

reasonable minds can come to but one conclusion, and that conclusion is

adverse to the party against whom the motion for summary judgment is

made, who is entitled to have the evidence construed most strongly in his

favor.

Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978); Civ.R. 56(C).

{¶ 20} The party seeking summary judgment must specifically delineate the basis

upon which the motion is brought and identify those portions of the record that

demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio

St.3d 280, 293 (1996); Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988), syllabus. When a

properly supported motion for summary judgment is made, an adverse party may not rest

on mere allegations or denials in the pleadings but must respond with specific facts

showing that there is a genuine issue of material fact. Civ.R. 56(E); Riley v.

Montgomery, 11 Ohio St.3d 75, 79 (1984). The opposing party must do so using

“pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact . . . .” Civ.R. 56(C). A “material”

fact is one that would affect the outcome of the suit under the applicable substantive law.

Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304 (6th Dist. 1999); Needham

v. Provident Bank, 110 Ohio App.3d 817, 827 (8th Dist. 1996), citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

B. The Hakes are immune as landowners under R.C. 1533.181.

{¶ 21} In their first assignment of error, the Hugs argue that there are genuine

issues of material fact remaining regarding whether the Hakes are entitled to immunity

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under R.C. 1533.181, so the trial court erred by granting them summary judgment under

the recreational immunity statute. Specifically, they contend that Candace was not a

recreational user because the Hakes’ property was not held open to the public and was

not “nonresidential.”

{¶ 22} The Hakes respond that the trial court properly granted summary judgment

because Candace fell within the definition of recreational user. They contend that R.C.

1533.181 does not require that their property be held open to the general public, and their

property, when viewed as a whole, is nonresidential within the meaning of the statute.

{¶ 23} Under R.C. 1533.181,

(A) No owner, lessee, or occupant of premises:

(1) Owes any duty to a recreational user to keep the premises safe

for entry or use;

(2) Extends any assurance to a recreational user, through the act of

giving permission, that the premises are safe for entry or use;

(3) Assumes responsibility for or incurs liability for any injury to

person or property caused by any act of a recreational user.

(B) Division (A) of this section applies to the owner, lessee, or

occupant of privately owned, nonresidential premises, whether or not the

premises are kept open for public use and whether or not the owner, lessee,

or occupant denies entry to certain individuals.

A “recreational user” is “a person to whom permission has been granted, without the

payment of a fee or consideration to the owner, lessee, or occupant of premises, . . . to

enter upon premises to hunt, fish, trap, camp, hike, or swim, or to operate a snowmobile,

all-purpose vehicle, or four-wheel drive motor vehicle, or to engage in other recreational

pursuits.” R.C. 1533.18(B).

9.

{¶ 24} On appeal, the Hugs concede that the Hakes owned the property and that

Candace was engaged in a recreational pursuit at the time she was injured. They do not

dispute that Candace was at the Hakes’ home with their permission, without paying a fee,

or that Candace otherwise satisfies the statutory definition of “recreational user.”1 Based

on our review of the record, we conclude that Candace was indeed a “recreational user”

under R.C. 1533.18(B) because the Hakes permitted Candace to enter their property,

without paying a fee, to engage in a recreational pursuit.

{¶ 25} Because she was a “recreational user,” R.C. 1533.181(A) makes clear that

the Hakes did not have a duty to keep their premises safe for Candace’s entry or use.

This is true whether or not the property is kept open for public use and whether or not the

Hakes deny entry to certain people. R.C. 1533.181(B). Contrary to the Hugs’ argument,

under the plain language of the statute, the Hakes were not required to keep their property

open to the public to benefit from the recreational immunity statute. The Hugs rely upon

cases that were decided before R.C. 1533.181 was amended to include subsection (B),

which clearly states that immunity applies “whether or not the premises are kept open for

public use and whether or not the owner, lessee, or occupant denies entry to certain

individuals.” The cases cited by the Hugs are therefore unpersuasive under the current

version of the statute. See Stiner v. Dechant, 114 Ohio App.3d 209, 214 (9th Dist. 1996)

1

Although the Hugs argue that Candace was not a recreational user because the Hakes’ property was not held open to the public and was not “nonresidential,” this argument conflates the statutory definition of “recreational user” with the requirements for recreational-use immunity. Whether the property was held open to the public or was nonresidential bears on immunity under R.C. 1533.181, not on the definition of “recreational user” in R.C. 1533.18(B).

10.

(After the amendment of R.C. 1533.181, “[s]ince the property was nonresidential in

nature, the [owners] were potentially immune from liability pursuant to that statute

regardless of whether they held out their property to the general public for recreational

use.”).

{¶ 26} The only remaining element of the statute that the Hakes must meet to

claim immunity is that the “premises” must be “nonresidential.” R.C. 1533.181(B).

“Premises” means “all privately owned lands, ways, and waters, and any buildings and

structures thereon . . . .” R.C. 1533.18(A). The term “nonresidential” is not defined in

the statute. When a term is not defined in the statute, we give the term its plain and

ordinary meaning. Lingle v. State, 2020-Ohio-6788, ¶ 15. “Nonresidential” means “([o]f

an area, building, etc.) not being a place where people live.” Black’s Law Dictionary

(10th Ed. 2014). In determining whether the recreational immunity statute applies to a

property, courts look to the “essential character” of the property. Pauley v. Circleville,

2013-Ohio-4541, ¶ 16. The character of the premises envisioned by the recreational user

statute involves “the true outdoors,” because “[m]ost of the recreational uses enumerated

in R.C. 1533.18(B) are generally conducted in ‘the wide open spaces,’ such as parks or

wilderness tracts . . . .” Loyer v. Buchholz, 38 Ohio St.3d 65, 67 (1988). Recreational

premises typically “include elements such as land, water, trees, grass, and other

vegetation.” Miller v. Dayton, 42 Ohio St.3d 113, 114 (1989). However, “[t]o qualify

for recreational-user immunity, property need not be completely natural, but its essential

character should fit within the intent of the statute.” Id. Properties with homes on them

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can still be considered nonresidential, depending upon the character and use of the land.

See Thomas v. Chimera, 2021-Ohio-4204, ¶ 27 (5th Dist.).

{¶ 27} Here, the property where the accident occurred is properly classified as

nonresidential. Looking at the Hakes’ property as a whole, the vast majority of the land

is either nonresidential farmland or land that was left in its natural state. The accident

occurred 300 to 400 yards away from the Hakes’ home and outside of their backyard in

an area left in its natural state and where no one lives. This is sufficient to show that the

property was nonresidential.

{¶ 28} Because the Hakes meet all of the elements of the recreational user statute,

they are entitled to immunity under R.C. 1533.181. Therefore, the Hugs’ first assignment

of error is not well-taken.

C. The evidence does not support a finding that the Hakes were reckless.

{¶ 29} In their third assignment of error, the Hugs argue that genuine issues of

material fact remain regarding the Hakes’ recklessness, which they claim is an exception

to immunity under R.C. 1533.181. Specifically, they contend that the Hakes were

reckless when they failed to warn Livensparger and Candace of the hazardous conditions

on their property, allowed Livensparger to drive the UTV, and failed to provide safety

equipment.

{¶ 30} To the extent the Hugs claim that the Hakes “recklessly” failed to warn

Livensparger and Candace of the hazardous condition of their property, this argument is

foreclosed by the plain language of R.C. 1533.181. Contrary to the Hugs’ argument,

R.C. 1533.181 contains no exception for recklessness—or any other theory of liability—

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when a recreational user’s claim is based on an allegedly unsafe condition on the

premises. As the Ohio Supreme Court has observed, “[t]he determination of whether

R.C. 1533.181 applies depends not on the property owner’s actions, but on whether the

person using the property qualifies as a recreational user.” Pauley at ¶ 21. That is, “[t]he

language of the recreational-user statute is plain: a property owner owes no duty to a

recreational user to keep the property safe for entry or use. Creating an exception to this

immunity is a policy decision that comes within the purview of the General Assembly,

not the courts.” Id. at ¶ 38. Simply put, because “‘there is no duty, no liability can

follow.’” Id. at ¶ 21, quoting Collins v. Sabino, 1997 WL 531246, *4 (11th Dist. Aug.

29, 1997).

{¶ 31} The Hakes are therefore absolutely immune under R.C. 1533.181 for all

premises liability claims, regardless of how they are framed. The Hugs cannot

circumvent the Hakes’ immunity by recasting a premises liability claim as one for a

“reckless” failure to warn of a condition, or a “reckless” failure to make their property

safe for use.

{¶ 32} However, the Hugs also contend that the Hakes acted recklessly when they

allowed Livensparger to drive their UTV, and when they failed to provide safety

equipment. These allegations are not barred by R.C. 1533.181 because they involve the

Hakes’ conduct in entrusting the UTV to their guests, rather than their liability as

recreational landowners for injuries caused by an allegedly unsafe condition of their

premises.

13.

{¶ 33} Recklessness means that a person “‘does an act or intentionally fails to do

an act which it is his duty to the other to do, knowing or having reason to know of facts

which would lead a reasonable man to realize, not only that his conduct creates an

unreasonable risk of physical harm to another, but also that such risk is substantially

greater than that which is necessary to make his conduct negligent.’” Marchetti v.

Kalish, 53 Ohio St.3d 95, 96, fn. 2 (1990), quoting 2 Restatement of the Law 2d, Torts, §

500 (1965).

“Reckless misconduct differs from negligence in several important

particulars. It differs from that form of negligence which consists in mere

inadvertence, incompetence, unskillfulness, or a failure to take precautions

to enable the actor adequately to cope with a possible or probable future

emergency, in that reckless misconduct requires a conscious choice of a

course of action, either with knowledge of the serious danger to others

involved in it or with knowledge of facts which would disclose this danger

to any reasonable man. It differs not only from the above-mentioned form

of negligence, but also from that negligence which consists in intentionally

doing an act with knowledge that it contains a risk of harm to others, in that

the actor to be reckless must recognize that his conduct involves a risk

substantially greater in amount than that which is necessary to make his

conduct negligent. The difference between reckless misconduct and

conduct involving only such a quantum of risk as is necessary to make it

negligent is a difference in the degree of the risk, but this difference of

degree is so marked as to amount substantially to a difference in kind.”

{¶ 34} Id. at 100, fn. 3, quoting 2 Restatement of the Law 2d, Torts, § 500,

Comment g (1965). Thus, to show that someone was reckless, the plaintiff must show

that the other person knew of a specific risk and deliberately ignored it, and that the other

person’s conduct was “more egregious than simple carelessness and must create

substantially greater risk than ordinary negligence.” Angelot v. Youngstown Bd. of Edn.,

1998 WL 668158, *6 (7th Dist. Sept. 18, 1998). In the context of recreational activities,

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recklessness means that a person’s conduct (1) is outside of the rules or customs of the

activity and (2) creates an unreasonable risk of physical harm to another. Taylor v.

Mathys, 2005-Ohio-150, ¶ 17 (3d Dist.).

{¶ 35} The evidence in this case does not support a finding that the Hakes were

reckless when they allowed Livensparger to drive the UTV. Livensparger was known to

the Hakes as someone who had experience driving UTVs and who was competent to

drive them.2 And there is no dispute that Livensparger, like Candace, was permitted to

enter the Hakes’ property, without paying a fee, to engage in a recreational pursuit. She

was therefore a recreational user, and the Hakes had no duty to warn Livensparger of any

unsafe conditions before she drove Candace on the UTV.

{¶ 36} Finally, the record does not establish that the Hakes had any duty to

provide safety equipment. There is no evidence that the use of safety gear such as

helmets is customary in UTV riding, so we cannot conclude that the Hakes’ failure to

provide safety gear was outside of the rules or customs of the activity. In short, the Hugs

have not pointed to anything supporting their claim that the Hakes were reckless.

{¶ 37} In sum, the Hugs were not entitled to recover from the Hakes, the Hakes

were entitled to judgment as a matter of law, and the trial court properly granted

summary judgment in the Hakes’ favor. The Hugs’ third assignment of error is not welltaken.

2

We note that the Hugs have abandoned their argument that Livensparger was intoxicated while driving the UTV.

15.

D. Candace was injured from an ordinary risk inherent in UTV riding.

{¶ 38} In their fourth assignment of error, the Hugs argue that the trial court erred

by determining that the Hakes and Livensparger are not liable under the recreational

activity doctrine because Candace was injured from an ordinary risk inherent in UTV

riding.

{¶ 39} First, because the Hakes, as landowners, are absolutely immune under R.C.

1533.181, it was not appropriate or necessary for the trial court to consider the

recreational activity doctrine when assessing their liability. Again, R.C. 1533.181

independently bars all claims arising from an allegedly unsafe condition on the property,

however those claims are styled. The recreational activity doctrine is, however, relevant

to Livensparger’s liability as the driver of the UTV.

{¶ 40} The recreational activity doctrine provides that “[w]here individuals engage

in recreational or sports activities, they assume the ordinary risks of the activity and

cannot recover for any injury unless it can be shown that the other participant’s actions

were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the

Restatement of Torts 2d.” Marchetti, 53 Ohio St.3d 95, at syllabus. In other words, no

liability attaches for injuries caused by negligence when they happen during a

recreational activity. Gentry v. Craycraft, 2004-Ohio-379, ¶ 6. This rule “has its genesis

in the doctrine of primary assumption of the risk and is based on the rationale that a

participant to a sporting event or recreational activity accepts the risks associated with the

sport or activity.” Pope v. Willey, 2005-Ohio-4744, ¶ 8 (12th Dist.), citing Gentry at ¶

10-11. This limitation on liability is based on the idea that some risks are so inherent in

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an activity that they cannot be eliminated. Id. at ¶ 11, citing Gallagher v. Cleveland

Browns Football Co., 74 Ohio St.3d 427, 431 (1996), and Whisman v. Gator Invest.

Props., Inc., 2002-Ohio-1850 (1st Dist.). Thus, by choosing to participate in the activity,

a person implicitly accepts those risks. Gentry at ¶ 13. The types of risks associated with

the activity are those that are foreseeable and customary risks of the sport or recreational

activity. Curtis v. Schmid, 2008-Ohio-5239, ¶ 54 (5th Dist.). The doctrine relieves

people providing or taking part in a recreational activity from any duty to eliminate the

risks that are inherent in the activity or sport because such risks cannot be eliminated. Id.

{¶ 41} The Hugs concede that flipping is a known risk that is inherent in the

activity of driving or riding a UTV. Parker v. Patrick, 2012-Ohio-3312, ¶ 16 (12th

Dist.). They argue that “attendant circumstances” exist—including darkness, the

condition of the terrain, unmarked trails, and lack of safety gear—that “caused the

dangers to UTV riding to be more than the inherent risks.” However, flipping is caused

by many different types of circumstances—like speed, terrain, or failure to follow safety

procedures. Brumage v. Green, 2014-Ohio-2552, ¶ 16 (2d Dist.), citing West v.

Devendra, 2012-Ohio-6092, ¶ 26 (7th Dist.). “What causes the driver to lose control is

better addressed when determining whether the driver acted intentionally, recklessly or

negligently”—i.e., not as part of whether the risks are inherent to the activity. West at ¶

26.

{¶ 42} Accordingly, Candace was injured due to an inherent, foreseeable, and

customary risk of riding a UTV, i.e., the UTV flipping. Although the Hugs point to

several factors that they claim increased the risks of UTV riding, those factors are more

17.

appropriately considered when determining whether Livensparger, as Candace’s coparticipant, acted negligently, recklessly, or intentionally. Id. In other words, the

existence of “attendant circumstances” does not alter the risks inherent to this particular

recreational activity.

{¶ 43} Accordingly, the trial court did not err by finding that Candace was injured

from an ordinary risk of UTV riding. The Hugs’ fourth assignment of error is not welltaken.

E. The evidence does not support a finding that Livensparger was reckless.

{¶ 44} In their second assignment of error, the Hugs argue that the trial court erred

by granting summary judgment to Livensparger because there is a genuine issue of

material fact regarding Livensparger’s recklessness. The Hugs point out that

Livensparger drove the UTV at night for the first time on the night of the accident; she

drove at night despite knowing that the property contained multiple waterways; she

attempted to navigate unlit, unmarked, overgrown terrain; and she should have

anticipated that the rain earlier in the day would affect the trails and creek. They also

point out that Livensparger contradicted herself by saying in her interrogatories that she

was unaware of the washout because it was covered by grass and weeds but denying in

requests for admission that the area near the creek was overgrown with vegetation and

that any obstructions blocked her view.

{¶ 45} Livensparger responds that Candace admitted in her deposition testimony

that she knew there were risks inherent to riding a UTV, knew that she assumed those

risks by riding in the UTV, and that she failed to take any safety precautions, like using

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the seatbelt or door netting. She also contends that the record does not support a finding

that she was reckless because she was not an incompetent, inexperienced driver. She had

operated ATVs and UTVs her whole life, had been to the Hakes’ property numerous

times, had driven and ridden the UTV on the property, used the UTV’s headlights while

she was driving that night, and did not know about the washout so she had no duty to

warn Candace about it.

{¶ 46} Because Candace’s injuries were caused by an inherent risk of UTV riding,

she cannot recover from Livensparger unless Livensparger’s conduct was intentional or

reckless. Marchetti, 53 Ohio St.3d 95, at syllabus. The Hugs do not allege that

Livensparger’s conduct was intentional, so they must show recklessness to hold

Livensparger liable.

{¶ 47} The evidence in this case does not support a finding that Livensparger was

reckless. There is no evidence that Livensparger ignored the risks posed by the darkness

and the overgrown trails. Instead, Livensparger used the UTV’s headlights and backed

away from a trail that was too overgrown, which shows that she was using caution related

to the existing risks. Any failure by Livensparger to anticipate that the rain from earlier

in the day would affect the terrain does not rise above the level of simple carelessness.

Finally, Livensparger’s contradictory statements about the area around the washout are

not material to the resolution of this case. The evidence shows that Livensparger did not

see the washout before the UTV flipped into the creek. Whether she did not see the

washout because of vegetation or her own failure to notice it, neither is so egregious that

it rises above the level of negligence.

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{¶ 48} Because the Hugs cannot show that Livensparger knew of a specific risk

that she deliberately ignored or acted in a manner more egregious than simple

carelessness, they cannot show that Livensparger was reckless. Thus, Livensparger was

entitled to summary judgment as a matter of law, and the trial court properly granted

summary judgment in her favor. Accordingly, the Hugs’ second assignment of error is

not well-taken.

F. Jeffrey’s loss of consortium claim cannot survive dismissal of Candace’s claims.

{¶ 49} In their final assignment of error, the Hugs argue that the trial court erred

by dismissing Jeffrey’s loss of consortium claim because the court also erred by

dismissing Candace’s claims. The Hakes and Livensparger each argue that the court

properly dismissed the lack of consortium claim because it cannot survive dismissal of

Candace’s claims.

{¶ 50} “[A] claim for loss of consortium is derivative in that the claim is

dependent upon the defendant’s having committed a legally cognizable tort upon the

spouse who suffers bodily injury.” Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 92-93

(1992). “[W]hen a principal claim fails for substantive reasons, the derivative loss-ofconsortium claim fails as well.” McCarthy v. Lee, 2023-Ohio-4696, ¶ 17.

{¶ 51} We have determined that summary judgment was appropriately granted on

Candace’s claims against the Hakes and Livensparger. Because all of her principal

claims have failed, Jeffrey’s derivative loss of consortium claim must fail as well. Id.

The Hakes and Livensparger were entitled to summary judgment on the loss of

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consortium claim as a matter of law, and the trial court did not err by granting judgment

in their favor. Therefore, the Hugs’ fifth assignment of error is not well-taken.

III. Conclusion

{¶ 52} Based on the foregoing, the November 25, 2025 decision of the Williams

County Court of Common Pleas is affirmed. The Hugs are ordered to pay the costs of

this appeal under App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.

Christine E. Mayle, J. ____________________________

JUDGE

Charles E. Sulek, J.

CONCUR. ____________________________

JUDGE

Myron C. Duhart, J.

CONCURS AND WRITES ____________________________ SEPARATELY. JUDGE

DUHART, J., concurring,

{¶ 53} I concur with the majority opinion. I write separately because I do not

believe we can find the Hakes immune under R.C. 1533.181 as a matter of law as I

believe there to be a question of fact regarding whether the property at issue is

nonresidential. The majority has defined “nonresidential,” as “([o]f an area, building,

etc.) not being a place where people live.” (Emphasis added.) Here, there is no evidence

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that the area of the accident was not on the same plot of land as the Hakes’ home. While

the accident occurred in an area of the property that was in its natural state, I believe,

based on the facts of this case, where the accident occurred 300 – 400 yards from the

Hakes’ residence, that we should not determine as a matter of law that this property is

nonresidential. I note that in Thomas, the case cited by the majority in support of its

statement that a property with a home on it can be considered nonresidential, depending

on the character and use of the land, the court took care to note that “[t]he character of the

parcel of property containing the zipline and pond are clearly being used for recreational

activities not associated with the residence on a different parcel of land.” (Emphasis

added.) Thomas, 2021-Ohio-4204, at ¶ 27 (5th Dist.). There is no evidence that this is

the case here. Thus, I disagree with the majority’s finding that the Hakes are immune

under R.C. 1533.181 as a matter of law.

{¶ 54} While I find there to be a question of fact as to the applicability of R.C.

1533.181, I believe the trial court correctly found the recreational activity doctrine

applied, and that the Hakes were not reckless. I agree with the majority’s analysis

regarding whether Candace was injured from an ordinary risk of UTV riding. Further, I

do not find any evidence that the Hakes were reckless.3 The Hugs contend that the Hakes

were reckless by allowing Livensparger to drive the UTV and for not warning either

Livensparger or Candace of the hazardous conditions on the property, including “the

increased risk of nighttime operation . . ., water accumulation in the creek . . ., and a prior

3

The Hugs do not contend that the Hakes’ actions were intentional.

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rollover involving the same UTV.” I agree with the majority that the evidence does not

support a finding that the Hakes were reckless in permitting Livensparger to drive the

UTV. Further, I agree with the trial court’s conclusion that the Hakes were not reckless

in failing to warn of conditions on the property. Any increased risk due to driving in the

dark would be known to Candace. Additionally, the facts of the prior rollover were not

similar to the facts at issue here, and I do not believe that any failure to warn of possible

water accumulation in the creek rises to the level of recklessness. For the above reasons,

I ultimately agree that the trial court’s judgment should be affirmed.

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.

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