LiCause v. City of Canton
537 N.E.2d 1298
Ohio
1989
Check Treatment
Alice Robie Resnick, J.

We initially note that appellees in both cases were found to be recreational users. R.C. 1533.181 states:

“(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.”

Although not originally enacted to provide immunity with regard to public land, R.C. 1533.181 has been construed by this court to apply to state and municipal property. See Moss v. Dept. of Natural Resources (1980), 62 Ohio St. 2d 138, 16 O.O. 3d 161, 404 N.E. 2d 742; McCord v. Division of Parks & Recreation (1978), 54 Ohio St. 2d 72, 8 O.O. 3d 77, 375 N.E. 2d 50; Johnson v. New London (1988), 36 Ohio St. 3d 60, 521 N.E. 2d 793. The scope of R.C. 1533.181 has not been limited to only those persons entering land to “* * * hunt, fish, trap, camp, hike, swim * * *.” See R.C. 1533.18(B). Immunity has encompassed “other recreational pursuits” such as sledding and sitting on a beach. See Marrek v. Cleveland Metroparks Bd. of Commrs. (1984), 9 Ohio St. 3d 194, 9 OBR 508, 459 N.E. 2d 873; Fetherolf v. State (1982), 7 Ohio App. 3d 110, 7 OBR 142, 454 N.E. 2d 564.

In the case before us, appellees entered Stadium Park without paying any entrance fee in order to watch a softball game. The character of Stadium Park is that of being open to the public for recreational pursuits. See Miller v. Dayton (1989), 42 Ohio St. 3d 113, 537 N.E. 2d 1294. Thus we find that appellees, who walked through the park in order to reach or leave the softball field arid who also watched a softball game, are recreational users within the scope of R.C. 1533.181. We find that both walking through the park in order to reach or to leave the softball field and watching the softball game are recreational pursuits within the scope of R.C. 1533.181.

*111As recreational users, appellees were owed no duty by appellant to keep Stadium Park safe for entry or use. Therefore, liability, if any, can only be imposed on the city of Canton as a municipality under R.C. 723.01.

R.C. 723.01 states:

“Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of a municipal corporation shall have the care, supervision, and control of the public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and the municipal corporation shall cause them to be kept open, in repair, and free from nuisance.”

When G.C. 3714 (predecessor to R.C. 723.01) was recodified in 1910, it was an exception to the then common-law doctrine of sovereign immunity. Wall v. Cincinnati (1948), 150 Ohio St. 411, 38 O.O. 289, 83 N.E. 2d 389. The substance of this statute has been incorporated into Ohio law from an early date and is traceable to at least 1852. Hunter & Boyer, Tort Liability of Local Governments in Ohio (1948), 9 Ohio St. L.J. 377, 381.

Its objective was to keep the streets open for the purpose for which they were designed and built; that is, to afford the public safe means of travel. See Lovick v. Marion (1975), 43 Ohio St. 2d 171, 72 O.O. 2d 95, 331 N.E. 2d 445; Standard Fire Ins. Co. v. Fremont (1955), 164 Ohio St. 344, 347, 58 O.O. 130, 132, 131 N.E. 2d 221, 224. “* * * The general theory for imposing liability under this section is that the municipality is permitting the existence of a nuisance by failing to keep the public ways clear, open, in repair, and safe for the normal uses thereof.” Hunter & Boyer, supra, at 381; Wall, op. cit.

Before sovereign immunity for municipalities was abrogated, see Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26, 2 OBR 572, 442 N.E. 2d 749, municipalities acting in a governmental capacity could not be sued for their tortious conduct. See Taylor v. Cincinnati (1944), 143 Ohio St. 426, 447, 28 O.O. 369, 378, 55 N.E. 2d 724, 733. Thus, R.C. 723.01, which imposed a duty on municipalities to keep their streets and public grounds open, in repair, and free from nuisance was in derogation of the common law and strictly construed. Zupancic v. Cleveland (1978), 58 Ohio App. 2d 61, 63, 12 O.O. 3d 213, 214, 389 N.E. 2d 861, 863.

R.C. 1533.181 was enacted in 1963 in order to protect private landowners from liability when opening their land to the general public for recreational pursuits. The purpose of this statute was “ ‘to encourage owners of premises suitable for recreational pursuits to open their land to public use without worry about liability.’ * * *” Moss, supra, at 142, 16 O.O. 3d at 164, 404 N.E. 2d at 745. Because the doctrine of sovereign immunity still was in effect, publicly owned land originally was not within the statute’s scope. Nevertheless, private and publicly owned lands both retained immunity against recreational-user liability; the former because of R.C. 1533.181, and the latter because of sovereign immunity.

However, in 1975, pursuant to the Court of Claims Act, R.C. Chapter 2743, the state waived its sovereign immunity. The state’s liability henceforth was to be determined “* * * in accordance with the same rules of law applicable to suits between private parties * * *.” R.C. 2743.02(A). Because R.C. 1533.181 was such a rule of law between private parties, we held that this statute applied to state-owned *112property as well as to private property. See McCord, supra; Moss, supra.

In 1982 and 1983, the doctrine of municipal sovereign immunity also was abolished. See Haverlack, supra, at paragraph two of the syllabus; Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31, 6 OBR 53, 451 N.E. 2d 228. “* * * [M]unicipalities will be held liable, the same as private corporations and persons, for the negligence of their employees and agents in the performance of the activities.” Enghauser, supra, at paragraph two of the syllabus.

Thus, unless there is statutory immunity the sovereign immunity defense “* * * is not available to a municipal corporation in an action for damages alleged to be caused by the tortious conduct of the municipality.” Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118, 6 OBR 178, 451 N.E. 2d 787, syllabus.

In Johnson v. New London, supra, at 63-64, 521 N.E. 2d at 796-797, we found that R.C. 1533.181 did provide such derivative statutory immunity to municipalities. Because R.C. 1533.181 was “* * * one of the rules governing the liability of private persons for negligence, * * * municipalities, pursuant to Enghauser, remained immune from tort liability to recreational users of municipal property * * *.” Id. at 63, 521 N.E. 2d at 796. Hence, it is settled that R.C. 1533.181 applies to private as well as to both state and municipal property.

The court of appeals in the case before us, however, held that recreational use immunity does not apply to municipalities because R.C. 723.01 is a special statute which derogates from the general application of R.C. 1533.181. The appellate court rendered its decisions in LiCause and Albert before our decision in Johnson, supra, and thus it did not have the benefit of our holding as to recreational-use immunity for municipal property and incorrectly construed R.C. 723.01 and 1533.181.

As seen above, R.C. 723.01 originally was a special statute in derogation of the common-law doctrine of sovereign immunity. With the abrogation of sovereign immunity for municipal- negligence, however, R.C. 723.01 clearly no longer can be considered an exception to the common law. To the contrary, R.C. 1533.181 now is a special statute which derogates from the general unavailability of municipal sovereign immunity.

The General Assembly, in R.C. 1.51, instructs us how to treat a special statute which conflicts with a general statute:

“If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.”

R.C. 1533.181 was enacted several years after R.C. 723.01 (formerly G.C. 3714) was recodified. We find that R.C. 1533.181 and 723.01 are compatible and should be construed together. See Wooster Republican Printing Co. v. Wooster (1978), 56 Ohio St. 2d 126, 132, 10 O.O. 3d 312, 315, 383 N.E. 2d 124, 128.

Thus, a person who enters or uses municipal land which is held open to the general public free of charge for recreational pursuit is a recreational user. Johnson v. New London (1988), 36 Ohio St. 3d 60, 521 N.E. 2d 793. If such recreational user is injured while *113engaged in recreational pursuit on such land the municipality is immune from an action brought under R.C. 723.01 due to the exemption from liability to recreational users in R.C. 1533.181. See Vitai v. Sheffield Lake (Jan. 21, 1987), Lorain App. No. 4045, unreported. The appellants, therefore, owe no duty to LiCause and Albert who were recreational users pursuant to R.C. 1533.181. We reverse the decisions of the court of appeals and reinstate the judgments of the trial court.

Judgments reversed.

Moyer, C.J., Sweeney, Holmes, Douglas, Wright and H. Brown, JJ., concur.