PAULEY ET AL., APPELLANTS, v. THE CITY OF CIRCLEVILLE, APPELLEE, ET AL.
No. 2012-1150
Supreme Court of Ohio
Submitted April 23, 2013—Decided October 16, 2013
137 Ohio St.3d 212, 2013-Ohio-4541
KENNEDY, J.
I. Introduction
{1 1} Appellants, Jeremy Pauley and his mother, appeal from a judgment of the Fourth District Court of Appeals that affirmed summary judgment in favor of the city of Circleville regarding appellants’ civil action for injuries Jeremy sustained while sledding in the city‘s park. We accepted the appellants’ discretionary appeal, which sets forth a single proposition of law: “Recreational user immunity does not extend to man-made hazards upon real property that do not further or maintain its recreational value.”
{1 2} Under the recreational-user statutes (
II. Facts and Procedural History
{1 3} The city owns Barthelmas Park, which contains ball fields, a playground, and various structures, such as a concession stand and picnic shelters. Entry to the park is free of charge.
{1 4} In the summer of 2006, the city was offered free topsoil that was excavated from a nearby construction site. The city uses topsoil for numerous projects, including reseeding the park. Consequently, the city accepted approxi-
{1 5} On the afternoon of January 24, 2007, 18-year-old Jeremy Pauley and his friends Kevin Baisden, Danielle Ziemer, and Natasha Cox decided to go snow sledding at the park. Jeremy and Kevin began sledding at about 5 p.m., while the girls looked on. At approximately 6:00 p.m., as it began getting dark, Jeremy decided on a new location for his last sled run, which was, in fact, one of the mounds of dirt that had been stored at the park by the city. Kevin moved the car so that its headlights illuminated the hill. Although there were other sled tracks on the mound, this was the first time that Jeremy had sledded down it. In his deposition, Jeremy asserted that “[t]o the very, very far left side [of the hill] away from where I went sledding there was a little bit of brush or something, but nothing around where I went down.”
{1 6} Jeremy claimed that as he sledded down the hill, he “hit an immovable object” and “instantly went numb” and could not move his body. Realizing that Jeremy was critically injured, Kevin Baisden called 9-1-1. At the time, Kevin did not notice any obstacle in Jeremy‘s path. However, the day after the accident, Kevin went back to the park and observed an object that looked like a railroad tie in the area where Jeremy was injured.
{1 7} Jeremy suffered a broken neck, which caused him to become a quadriplegic. He and his mother filed a complaint alleging that the city acted negligently, recklessly, and wantonly in dumping debris in the park, which resulted in a physical defect that caused Jeremy‘s injuries. The complaint alleged that “waste and debris * * * created an inherently dangerous situation which no user of the park could have anticipated and thus substantially altered the nature and characteristic of the public property.”
{1 8} The trial court granted the city‘s motion for summary judgment, finding that the city was immune from suit under
{1 9} We accepted the appellants’ discretionary appeal. 133 Ohio St.3d 1422, 2012-Ohio-4902, 976 N.E.2d 913.
{1 10} Appellants claim that “the recreational user immunity statute is designed to preclude the right to recovery of civil damages only in specific instances.” Appellants contend that
III. Analysis
Recreational-User Immunity
{¶ 12} We begin our analysis by examining the statute, as well as applicable case law.
{¶ 13}
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.
{¶ 14}
As used in sections
1533.18 and1533.181 of the Revised Code:(A) “Premises” means all 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.
(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 of the state, or a lease payment or fee paid to the owner of privately owned lands, 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.
{16} In determining whether immunity applies, courts examine the essential character of the property. First, the property must be held open to the public for recreational use, free of charge. See id. at syllabus; Fryberger v. Lake Cable Recreation Assn., Inc., 40 Ohio St.3d 349, 533 N.E.2d 738 (1988), paragraph one of the syllabus. Compare Loyer v. Buchholz, 38 Ohio St.3d 65, 526 N.E.2d 300 (1988) (private pool not held open for public use is not protected by
{17} The character of the premises envisioned by the recreational-user statute involves “the true outdoors,” because “[m]ost of the recreational activities enumerated in
{18} 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. For example, a softball field requires certain manmade elements, but those improvements do not change the essential character of the property so as to remove it from the protection of the statute. The property is still held open for public use for recreational purposes. Id. at 115. Compare Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986) (a gymnasium, an entirely manmade structure, “is not within the contemplation of the recreational user immunity statutes“).
{19} The types of recreational activities that qualify as a recreational use are diverse.
{20} However, activities such as pulling down a soccer goalpost (Fuehrer v. Westerville City School Dist. Bd. of Edn., 61 Ohio St.3d 201, 574 N.E.2d 448 (1991)), or marching in a parade on a public street (McGuire v. Lorain, 9th Dist. Lorain No. 10CA009893, 2011-Ohio-3887, 2011 WL 3426186 (Aug. 8, 2011)), are not the types of activities envisioned by the recreational-user immunity statutes.
Property Owners Owe No Duty of Care to Keep Their Premises Safe for Entry or Use by Recreational Users
{21} Under
{122} In this case, appellants admitted that Pauley was a recreational user within
{123} In arguing that property owners should not be afforded immunity if they “render[] their land more dangerous without promoting or preserving recreational activities,” appellants rely primarily upon Ryll v. Columbus Fireworks Display Co., Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372, and Miller v. Dayton, 42 Ohio St.3d 113, 537 N.E.2d 1294 (1989).
{124} Appellants cite Ryll for the proposition that even if an injured person was a recreational user within the meaning of
{125} Citing Miller, appellants then ask this court to hold that “[i]n lawsuits involving man-made objects, liability has been precluded only when such improvements enhance the recreational activities on the property.” We do not agree.
{1126} In Ryll, a spectator was attending a fireworks show sponsored by the city of Reynoldsburg when he was fatally injured by shrapnel from a fireworks shell. The spectator‘s estate sued the city, which asserted that it was immune from liability under the recreational-user statutes. We held that the recreational-user statute immunizes property owners from injuries that arise from a defect in the premises. Because the shrapnel was not a defect in the premises, immunity did not apply.
{27} In Miller, the plaintiff was playing in a softball tournament in a park owned by the city of Dayton when he was injured sliding into second base. The plaintiff sued the city seeking to recover for his injuries. The trial court granted summary judgment to the city pursuant to
{128} The court of appeals reversed the trial court‘s judgment. The court of appeals held that a baseball diamond is an artificial, manmade development, bearing little resemblance to land in its natural state. Thus, the court of appeals held that the plaintiff was not a recreational user, and the city was not immune.
{29} This court held that “[i]n determining whether a person is a recreational user under
{130} In its analysis, this court stated that “the presence of man-made improvements on a property does not remove the property from statutory protection.” Id. at 114. “To qualify for recreational-user immunity, property need not be completely natural, but its essential character should fit within the
{131} Applying this test, we held that “[t]he essential character of [the ballpark] is that of premises held open to the plaintiff, without fee, for recreational purposes” and that improvements such as “dugouts, fences, base plates, and similar manmade structures” did not change the park‘s essential character as outdoor premises used for recreational purposes within the recreational-user statutes. Id. Thus, the plaintiff was a recreational user, and the city was immune from suit.
{132} We find that the instant case is distinguishable from both Ryll and Miller. In Ryll, the injury was caused by a fireworks shell, not by a defect on the city‘s premises, so
{33} In Miller, there was no discussion of a defect in the premises. Indeed, the recreational-user statutes protect property owners from such defects. Rather, the question in Miller was whether manmade improvements, such as a baseball diamond, changed the essential character of the property to something other than an outdoor space used for something other than an outdoor recreational activity. Accordingly, Miller lends no support to appellants’ proposition that liability is precluded for injuries caused by manmade improvements only when such improvements enhance the recreational activities on the property. Whether the manmade improvements in Miller enhanced the recreational activities in the park was irrelevant. The question was whether the improvements so changed the essential character of the park as to take it outside the protection of the statute. We cannot accept as reasonable any contention that the presence of a railroad tie in a public park changes its essential character as a recreational space.
{34} Moreover, to adopt appellants’ reading of Miller would require property owners to make their property safe for entry and use in direct contravention of the plain language in
{135} In addition, adopting appellants’ interpretation of Miller would conflict with the purpose of the recreational-user statute, which is to encourage owners of premises suitable for recreational pursuits to open their land to public use
{¶ 36} Finally, even assuming arguendo that we agreed with appellants’ interpretation of Miller, it would not change the outcome in this case. Miller requires that the property be “viewed as a whole,” and only when the “essential character” of the property has been altered to something other than an outdoor property on which outdoor recreational activities occur does immunity fall away.
{¶ 37} The park in this case is an outdoor property with trees and grass and is open to the public free of charge for picnicking and sporting activities such as sledding, baseball, soccer, and basketball, as well as other recreational activities that inevitably occur in parks, such as tinkering with a model plane, reading poetry, or jogging. See Miller, 42 Ohio St.3d at 115, 537 N.E.2d 1294. The alleged defect in this case is an object resembling a railroad tie. When viewing the park property “as a whole,” the existence of a single railroad tie does not change the essential character of the park to something other than a property that is open for recreational use.
{¶ 38} Critics may claim that our decision reaches a harsh result. However, the 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. The General Assembly understands how to draft laws that contain exceptions, but included no exception that can be applied in this case. And we will not create an exception by judicial fiat. Akron v. Rowland, 67 Ohio St.3d 374, 380, 618 N.E.2d 138 (1993).
IV. Conclusion
{¶ 39} Pauley entered the park free of charge and engaged in the recreational activity of snow sledding on the date of his injury. Therefore, as he conceded, he was a recreational user as defined in
Judgment affirmed.
O‘DONNELL, LANZINGER, and FRENCH, JJ., concur.
PFEIFER and O‘NEILL, JJ., dissent.
PFEIFER, J., dissenting.
{40} I join Justice O‘Neill‘s dissent, although I do not share his enthusiasm for the recreational-user statutes. In particular, the immunity provisions contained in
O‘NEILL, J., dissenting.
{41} I respectfully dissent from the majority in this case. The holdings of the Fourth District Court of Appeals and the Pickaway County Court of Common Pleas granting summary judgment to the city of Circleville should be reversed, and this case should be remanded for trial. I agree wholeheartedly with the letter, spirit, and intent of most recreational-user statutes. This court has said that the purpose of Ohio‘s recreational-user statute is “to encourage owners of premises suitable for recreational pursuits to open their land to public use without worry about liability.” Marrek v. Cleveland Metroparks Bd. of Commrs., 9 Ohio St.3d 194, 198, 459 N.E.2d 873 (1984), quoting Moss v. Dept. of Natural Resources, 62 Ohio St.2d 138, 142, 404 N.E.2d 742 (1980). There is no question that a swimming-pool owner would simply close the pool if every child who slipped on the wet pavement was entitled to litigate his boo-boo for years in a court of competent jurisdiction. However, when, as here, a property owner converts a recreational park to a municipal dump site for construction fill and debris, there is no statute in the land that should shield that tortfeasor from accountability for such a disastrous action. As stated so eloquently by Justice Cardozo in Palsgraf: “The risk reasonably to be perceived defines the duty to be obeyed.” (Emphasis added.) Palsgraf v. Long Island RR. Co., 248 N.Y. 339, 344, 162 N.E. 99 (1928).
{42} In Miller v. Dayton, 42 Ohio St.3d 113, 537 N.E.2d 1294 (1989), this court extended recreational-user immunity to improvements made to property. We said that the
significant query is whether such improvements change the character of the premises and put the property outside the protection of the recreation-
al-user statute. To consider the question from a different perspective: Are the improvements and man-made structures consistent with the purpose envisioned by the legislature in its grant of immunity? In other words, are the premises (viewed as a whole) those which users enter upon “* * * to hunt, fish, trap, hike, swim, or engage in other recreational pursuits?”
Id. at 114-115 (quoting
{¶ 43} The majority asserts that our holding in Miller requires that the property be viewed as a whole, and only when the “essential character” of the entire property has been altered to something other than an outdoor property on which outdoor recreational activities occur does immunity fall away. Majority opinion at ¶ 36. The opinion goes on to say that “[w]hen viewing the park property ‘as a whole,’ the existence of a single railroad tie does not change the essential character of the park to something other than a property that is open for recreational use.“’ Majority opinion at ¶ 37. Even if the majority‘s overreliance on the words “as a whole” is correct—and it is not—I disagree. And let‘s be accurate here—we are not talking about a single railroad tie. That tie that crippled this child was part of an overall scheme of disposal of huge mounds of debris that the city had incredibly decided to place in the middle of a recreational park! Cover it with a light dressing of snow, and the perfect killing field was created. I would hold, as a matter of law, that when the owner of a property that enjoys the immunity granted by the people of Ohio for recreational purposes makes a conscious decision to use the property for other purposes, the immunity ceases. See Huffman v. Willoughby, 11th Dist. Lake No. 2007-L-040, 2007-Ohio-7120, 2007 WL 4564384, ¶ 50 (a lowhead dam “was not an improvement that was * * * made to encourage the recreational use of this part of the river. Instead, it made that part of the river inherently dangerous and thus not suitable for recreational use“); Vinar v. Bexley, 142 Ohio App.3d 341, 755 N.E.2d 922 (10th Dist.2001) (because a roadway through a park was available to the public for travel not related to a recreational use, recreational-user immunity under
PFEIFER, J., concurs in the foregoing opinion.
Bashein & Bashein Co., L.P.A., and W. Craig Bashein; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers; and George R. Oryshkewych, for appellants.
Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, Todd M. Raskin, and Frank H. Scialdone; and Law Offices of Douglas J. May and Patrick J. Deininger, for appellee.
Elk & Elk Co., Ltd., and Kimberly C. Young, urging reversal for amicus curiae Ohio Association for Justice.
Roetzel & Andress, L.P.A., and Stephen W. Funk, urging affirmance for amicus curiae Ohio Association of Civil Trial Attorneys.
Isacc, Brandt, Ledman & Teetor, L.L.P., Mark Landis, and Aaron M. Glasgow, urging affirmance for amici curiae County Commissioners Association of Ohio, Ohio Township Association, and Ohio Parks and Recreation Association.
Ice Miller L.L.P., Philip Hartmann, Rebecca K. Schaltenbrand, and Stephen J. Smith; and John Gotherman, urging affirmance for amicus curiae Ohio Municipal League.