Lead Opinion
{¶ 2} Appellees allege in their complaint that appellant owns and operates a "lowhead dam" in the Chagrin River near Daniel's Park in Willoughby, Ohio. They allege the dam was built "for purposes that the dam no longer serves and has not served for quite some time."
{¶ 3} According to the complaint, on May 12, 2002, Chad and Charles entered the Chagrin River in Gates Mills, Ohio, and rafted down the river toward the dam. Appellees allege that use of the river in the area of the dam would expose anyone to a risk of "imminent death" and that this danger was well known to appellant. They allege the city failed to remedy or warn the public about this risk.
{¶ 4} Appеllees allege the current of the river pulled Chad and Charles over the dam, causing both to drown "because of the dam's intended design to create a backwash and recirculation of the water." Appellees allege the city created and maintained an attractive nuisance with regard to the dam, which it knew would cause injury or death to anyone engaged in any activities at or near the dam.
{¶ 5} Following the death of the two boys, Chad's father Sampson, allegedly grief-striсken over his son's death, took his own life on April 20, 2004, just before the second anniversary of Chad's death. Appellees allege the city intentionally or negligently caused Sampson to suffer emotional distress for which the city is also liable.
{¶ 6} Appellees assert claims for wrongful death on behalf of the estates of Chad, Charles, and Sampson and survivorship claims on behalf of Sampson's estate, Karen Schreibman, and Charles' parents.
{¶ 7} Appellant filed a motion to dismiss pursuant to Civ.R. 12(B)(6) for fаilure to state a claim upon which relief could be granted. Appellant argued it was immune from *3
liability under R.C.
{¶ 8} Appellees opposed appellant's motion, arguing, inter alia, that the recreational user statute only applies to undeveloped land, and that Willoughby's placement of a lowhead dam in the river changed the nature of the river such that the recreational user statute does not apply.
{¶ 9} In denying appellant's motion, the trial court found that construction of the dam changed the character of the part of the river where the dam was located because the dam was not constructed to encourage the recreational use of this part of the river. The court found the dam made that part of the river inherently dangerous and so not suitable for recreational use. The court thus found appellant was not immune from liability under R.C.
{¶ 10} The trial court also found that, considering the allegations concerning Sampson Schreibman's suicide as true, as it was required to do under Civ.R. 12(B)(6), appellant was not entitled to dismissal of appellees' claims concerning him.
{¶ 11} Appellant appealed the trial court's judgment, asserting for its sole assignment of error:
{¶ 12} "THE TRIAL COURT INCORRECTLY CONCLUDED THAT DEFENDANT WAS NOT IMMUNED [SIC] FROM LIABILITY UNDER OHIO REVISED CODE SECTION
{¶ 13} Before addressing the assigned error, we note that, pursuant to R.C.
{¶ 14} The Supreme Court of Ohio addressed R.C.
{¶ 15} In the case sub judice, the trial court, in denying appellant's motion to dismiss under Civ.R. 12(B)(6), expressly found "Defendant City of Willoughby is not immune from liability pursuant to R.C. Sec.
{¶ 16} A motion to dismiss for failure to state a claim upon which relief can bе granted is procedural in nature and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. ofComm'rs. (1992),
{¶ 17} In resolving a Civ.R. 12(B)(6) motion, courts are confined to the allegations in the complaint and cannot consider outside materials.State ex rel. Baran v. Fuerst (1990),
{¶ 18} In order for a court to grant a motion to dismiss for failure to stаte a claim, it must appear "`beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" O'Brien v. Univ. Community Tenants Union, Inc. (1975),
{¶ 19} Civ.R. 8(A), concerning "claims for relief," provides in pertinent part:
{¶ 20} "A pleading that sets forth a claim for relief * * * shall contain (1) a short and plain statement of the claim showing that the рarty is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled. * * *"
{¶ 21} Under the rules of notice pleading, Civ.R. 8(A) requires only a short and plain statement of the claim that gives the defendant fair notice of the plaintiff's claim and the grounds upon which it is based.Patrick v. Wertman (1996),
{¶ 22} "Because it is so easy for the pleader to satisfy the standard of Civ.R. 8(A), few complaints are subject to dismissal." Leichtman v.WLW Jacor Communications, Inc. (1994),
{¶ 23} Appellant argues that it is entitled to dismissal because it is immune from liability pursuant to R.C.
{¶ 24} Appellant does not challenge the sufficiency of appellees' various claims for relief, e. g., attractive nuisance, intentional infliction of emotional distress, wrongful death, survivorship. Instead, it argues it is immune from liability pursuant to R.C.
{¶ 25} "(A) No owner, lessee, or occupant of premises:
{¶ 26} "(1) Owes any duty to a recreational user to keep the premises safe for entry or use;
{¶ 27} "(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;
{¶ 28} "(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user. *7
{¶ 29} "(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."
{¶ 30} "Premises" is defined at R.C.
{¶ 31} "[A]ll privately owned lands, ways, and waters, and any buildings and structures thereon, and all privately owned and state-owned lands, ways, and waters leased to a private person, firm, or organization, including any buildings and structures thereon."
{¶ 32} "Recreational user" is defined at R.C.
{¶ 33} "[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 engage in other recreational pursuits."
{¶ 34} The Supreme Court of Ohio has held that "[i]n determining whether a person is a recreational user under R.C.
{¶ 35} The purpose of R.C.
{¶ 36} The immunity provided by the recreational user statute is an affirmative defense. Kendrick v. Cleveland Metroparks Bd. OfComm'rs. (1994),
{¶ 37} One of the required elements of the recreational user immunity defense is that the user was given permission to enter the premises. R.C.
{¶ 38} The Supreme Court has held that such permission is an element of the statutory defense. Marrek v. Cleveland Metroparks Bd. OfCommrs. (1984),
{¶ 39} In Sorrell, supra, the Tenth Appellate District held that R.C.
{¶ 40} The Supreme Court of Ohio addressed the permission requirement in Fuehrer v. Board of Educ. Of Westerville City School Dist. (1991),
{¶ 41} Thus, in order to prevail on this defense, appellant had the burden to prove that Chad and Charles had permission to enter the area where the dam was located. However, because appellant filed its motion under Civ.R. 12(B)(6), such motion could only be granted if permission was shown in the complaint. There is no such allegation in the complaint, and appellant was therefore not entitled to dismissal under Civ.R. 12(B)(6).
{¶ 42} We further note that appellees allege in their complaint that the area of the river where the dam is located is not used for recreational purposes and is inherently dangerous. They allege the dam is "treacherous for its danger and ability to take lives." As appellees are entitled to have all inferences drawn in their favor, seeByrd, supra, from these allegations it may reasonably be inferred that they did not have permission to enter the area of the river where the lowhead dam was located. *10
{¶ 43} Another element of the recreational user defense is non-payment of a fee or other consideration made to the owner to enter the premises. It is well-settled that a "person is not a `recreational user,' as defined in R.C.
{¶ 44} Non-payment of a fee or consideration to enter upon the premisеs is an element of the immunity defense provided at R.C.
{¶ 45} Next, appellant argues the trial court incorrectly applied the Supreme Court's decision in Miller v. City of Dayton (1989),
{¶ 46} "Generally speaking, recreational premises include elements such as land, water, trees, grass, and other vegetation. But recreational premises will often have such features as walks, fences and other improvements. The significant query is whether such improvements change the character of the premises and put the property outside the protection of the recreational-user statute. To consider the question from a different perspective: Are the improvements and man-made structures consistent with *11 the purpose envisioned by the legislature in its grant of immunity? In other words, аre the premises (viewed as a whole) those which users enter upon `* * * to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits?'
{¶ 47} "* * *
{¶ 48} "* * * [T]he inquiry should focus on the nature and scope of activity for which the premises are held open to the public. * * *" Id. at 114-115.
{¶ 49} In considering a Civ.R. 12(B)(6) motion to dismiss, the only issue for the trial court to consider is whether the plaintiffs complaint states a claim, viewing the allegations as true and all inferences in a light most favorable to him. Because the complaint alleged the premises were inherently dangerous and exposed any user to the risk of imminent death, appellees were entitled to the reasonable inference that the dam was not installed for recreational pursuits.
{¶ 50} Based on the allegations of the complaint, the trial court in its judgment entry found "the lowhead dam was clearly created for purposes other than to draw rafters * * * onto the river." It found that "the construction of the lowhead dam changed the character of this portion of the river, and that this improvement is not consistent with the purpose of Ohio's Recreational User statute * * *." The court found the creation of the dam was not an improvement that was made to encourage the recreational use of this part of the river. Instead, the court found it made that part of the river inherently dangerous and thus not suitable for recreational use.
{¶ 51} The trial court's findings are limited to the court's ruling on appellant's motion to dismiss. Since these findings are based on the allegations of the complaint, *12 they have no binding effect on the merits of the case, which may only be determined by the evidence.
{¶ 52} Based on our thorough review of the complaint, we hold that appellees' claims were properly pled. We further hold that appellant's immunity defense is not supported by the allegations of the complaint.
{¶ 53} For the reasons stated in the Opinion of this court, the assignment of error is not well taken. It is the judgment and order of this court that the judgment of the Lake County Court of Common Pleas is affirmed.
COLLEEN MARY OTOOLE, J., concurs in judgment only, DIANE V. GRENDELL, J., dissent with Dissenting Opinion.
Dissenting Opinion
{¶ 54} The majority bases its decision to affirm the trial court's judgment primarily upon the conclusion that "unless the complaint on itsface demonstrates the existence of a defense that conclusively bars theplaintiff's claim", a 12(B)(6) motion based upon an affirmative defense cannot result in the dismissal of a complaint. The essence of the majority's argument is that, unless the plaintiff alleges in his complaint thаt Chad Schreibman and Charles Triozzi were given permission to enter the premises, i.e., the river, for recreational pursuits and specifically alleges that the boys did not pay a fee or other information to enter upon the premises, appellant cannot *13
possibly be granted a dismissal under Civ.R. 12(B)(6). Such a conclusion is supported neither by the facts, as alleged, nor Ohio law. Because the City of Willoughby is entitled to immunity under R.C.
{¶ 55} "Statutory immunity is an affirmative defense." Turner v. Cent.Local School Dist.,
{¶ 56} A review of the record reveals that Willoughby's "Motion to Dismiss," though made pursuant to Civ.R. 12(B)(6), was filed contemporaneously with its answer, thus it may also properly be viewed as a Civ.R. 12(C) motion for judgment on the pleadings. The rule provides that "[a]fter the pleadings are closed but within such times as not to delay the trial, any party may move for judgment on the pleadings." Civ.R. 12(C). "[A] motion for judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief could be granted. * * * Therefore, the same standard of review is applied to both motions. * * * The court must limit its inquiry to the material allegations contained in thе complaint and accept those allegations and all reasonable inferences as true.
* * * If, after undertaking this review, *14
the allegations in the complaint are such that plaintiff could prove no set of facts which would entitle him to relief, the moving party is entitled to judgment as a matter of law." Gawloski v. Miller BrewingCo. (1994),
{¶ 57} Thus, the issue for our consideration becomes whether the recreational user's statute, when viewed in the light of the allegations of the plaintiffs' complaint, accepted as true, conclusively bars recovery as a matter of law.
{¶ 58} R.C.
{¶ 59} For purpose of the recreational user's statute, "[premises" means "all privately owned lands, ways, and waters, and any buildings and structures thereon." R.C.
{¶ 60} A "recreational user," on the other hand, is "a person to whom permission has been granted, without the payment of a fee * * * tо the owner, * * * 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.
{¶ 61} A review of plaintiffs' complaint reveals the following relevant allegations, which are not in dispute:
{¶ 62} "Defendant, City of Willoughby * * *, a duly incorporated municipality in the State of Ohio, is located in the County of Lake, in the state of Ohio, and oversees, operates, owns, upkeeps [sic], controls, servicеs, maintains, and is otherwise responsible for the lowhead dam in or near the City of Willoughby, Ohio."
{¶ 63} "There is located, at or in * * * Willoughby[s] jurisdictions a lowhead dam in the Chagrin River adjacent to Daniels Park inWilloughby." (Emphasis added).
{¶ 64} "On or about May 12, 2002[,] Chad Shreibman and Charles Trizza entered the Chagrin River and began rafting down the river at or around Gates Mills, Ohio."
{¶ 65} "There were no signs or warnings to either Chad Schreibman or Charles Trizza, non-residents of Willoughby, about the imminent death they faced as they neared the Daniels Park lowhead dam."
{¶ 66} "Defendant, City of Willoughby's [sic] created and maintained an attractive nuisance with regard to the lowhead dam; Defendant advertised the lowhead dam, which Defendant knew to be dangerous, for use for recreational purposes and thus created and maintained a danger which it knew would cause injuries to persons engaged in activities at or around the lowhead dam." *16
{¶ 67} Accepting all of the aforementioned allegations as true, there is no question that the boys were recreational users on the river adjacent to the city's public park as a matter of law.
{¶ 68} "Whether a specific pursuit is comprehended within the meaning of [the term "other recreational pursuit"] may be determined by analyzing whether 1) it is a pursuit of an active sporting nature; (2) it requires a commitment of personal involvement or participation, as opposed to the disjoined interest of a detached spectator; and (3) whether it is generally thought of as a form of outdoor recreation."Pierce v. Cleveland Metroparks Sys. (Oct. 23, 1986), 8th Dist. No. 51162,
{¶ 69} Furthermore, as stated by the Ohio Supreme Court, "[t]he existence of statutory immunity does not depend upon the specific activity pursued by the plaintiff at the time of the plaintiff's injury. Rather, the inquiry should focus on the nature and scope of activity for which the premises are held open to the public. The goal is to determine the character of the premises. If the premises qualify as being open to the public for recreational activity, the statute does not require a distinction to be made between plaintiffs depending upon the activity in which each was engaged at the time of the injury. For example, we recognize immunity to the owner of a park (which qualifies as recreational premises), whether the injury is to one who is jogging in the park, tinkering with a model airplane or reading poetry to satisfy a school homework assignment. * * * The essential character of * * * [the park] is that of premises held opеn to the plaintiff, without fee, for recreational purposes." Miller v. Dayton (1989),
{¶ 70} The majority attempts to justify its conclusion based upon the proposition that "permission is an element of the statutory defense," and that, absent affirmative proof of permission being granted by the landowner, Willoughby cannot qualify for immunity under the recreational user's statute. Another basis for the majority's conclusion is that the immunity provided by the recreational user's statute does not apply because "non-paymеnt of a fee or consideration to enter upon the premises is an element of the immunity defense," thus, "the complaint would have to have alleged that the decedents did not pay a fee or other consideration to the owner to enter the premises." These propositions ignore what should be a blatantly obvious fact as acknowledged in thecomplaint, i.e., that the boys were on the premises of a public park owned by the municipality.
{¶ 71} This court has held that "[a] recreational user is one who is given express permission to use the land for a recreational pursuitor one who participates in a recreational pursuit with the owner'sacquiescence." Nelson v. Bd. of Park Commrs. of Conneaut Twp. ParkDist., 11th Dist. No. 2001-A-0016,
{¶ 72} Moreover, the absence of any proof in the complaint that the boys did not pay a fee prior to entering park property is not dispositive. For purposes of the recreational user's statute, a municipal park is, by its nature, entitled to a reasonable inference that its facilities are available without the payment of a fee.Pippin v. M.A. *18 Hauser Ents. (1996),
{¶ 73} Based upon the foregoing analysis, I would reverse the judgment of the Lake County Court of Common Pleas. *1