583 N.E.2d 1015 | Ohio Ct. App. | 1989
Plaintiffs-appellants, Peter M. McNamara and his father, John McNamara ("appellants"), appeal from the trial court's granting of defendant-appellee Linda A. Cornell's supplemental motion for summary judgment. The facts giving rise to the instant appeal are as follows:
Appellee was the owner of a suburban residence in the city of Bay Village. In the house garage, a skateboard bowl had been constructed by her son, Tom Beercheck, and a friend of his. The skateboard bowl was a U-shaped bowl 12 feet wide, 4 feet high, tapering down to 2 1/2 feet. It was constructed of plywood and covered with masonite, which caused the bowl to be smooth and enabled the skaters to go faster.
Although the skateboard bowl did not comply with the housing maintenance code of the city of Bay Village, on November 12, 1985, the city permitted its use as a variance to the code. In order to avoid noise annoyance to the adjoining neighbors, the city restricted its use to the hours between 4:00 p.m. and 6:00 p.m. on weekdays, and 1:00 p.m. and 3:00 p.m. on weekends.
On Saturday, November 30, 1989, appellant Peter McNamara and his friends Jim Johnson, Tony Orseno, and David Gilmore were invited to skate on the skateboard bowl by appellee's son, Tom Beercheck. Prior to 1:00 p.m., appellant chose to ride the skateboard bowl while appellee and her son were in the house. He mounted the ramp at one end and, as he descended, appellant fell from his skateboard. Appellant suffered a broken leg.
On September 17, 1986, the appellants filed a personal injury action against the appellee in her capacity as the owner of the property in which the *271 skateboard bowl was located. Appellee's son, Tom Beercheck, was not named a party in this suit.
On December 24, 1987, the trial court granted appellee's motion for summary judgment which was unopposed by the appellants. However, on January 7, 1988, the court vacated the judgment and reinstated the case to allow the appellants to oppose appellee's motion for summary judgment.
On March 11, 1988, appellee filed a supplement to the original motion for summary judgment, and on April 7, 1988, appellants opposed this motion. On June 1, 1988, summary judgment was granted on the basis of R.C.
Appellants timely filed their notice of appeal and subsequently raised the following two assignments of error:
"I. The trial court erred as a matter of law in granting defendant's supplemental motion for summary judgment because Ohio's recreational user statute, R.C.
"II. The trial court erred as a matter of law in granting defendant's supplemental motion for summary judgment as there are genuine issues of material fact to be adjudicated."
Appellants' two assignments of error will be discussed jointly as they pertain to the trial court's granting of appellee's supplemental motion for summary judgment.
A motion for summary judgment should be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). The motion for summary judgment should not be granted unless reasonable minds could reach but one conclusion. In reviewing a motion for summary judgment, the inferences from the underlying facts are construed in the light most favorable to the nonmoving party. Civ.R. 56(C); Wills v. Frank Hoover Supply (1986),
Further, a reviewing court, upon an appeal from a summary judgment, should look at the record in the light most favorable to the party opposing the motion. Williams v. First UnitedChurch of Christ (1974),
R.C.
"(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; *272
"(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."
R.C.
"(A) `Premises' means all privately-owned lands, ways, waters, and any buildings and structures thereon, and all state-owned lands, ways, and waters leased to a private person, firm, organization or corporation, including any buildings and structures thereon.
"(B) `Recreational user' means a person to whom permission has been granted, without the payment of a fee or consideration to the owner, lessee, or occupant of premises, other than a fee or consideration paid to the state or any agency thereof, to enter upon premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits."
Appellant was a "recreational user" as defined in R.C.
In determining whether appellee should be given immunity under R.C.
The Ohio Supreme Court held:
"R.C.
In order to obtain immunity from R.C.
The holding in Loyer was intended to encourage owners of premises suitable for recreational pursuits to open their lands for public use. It follows that where the property is not held open to the public, the immunity does not apply. Loyer, supra,
In this case, R.C.
Therefore, we hold that the immunity provided by R.C.
Accordingly, the trial court's granting of appellee's supplemental motion for summary judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment reversedand cause remanded.
PATTON, P.J., and MATIA, J., concur.