Combs v. Ohio Dep't of Natural Res., Div. of Parks & Recreation
| Decision Date | 19 April 2016 |
| Docket Number | No. 2014–1891.,2014–1891. |
| Parties | COMBS, Appellee, v. OHIO DEPARTMENT OF NATURAL RESOURCES, DIVISION OF PARKS AND RECREATION, Appellant. |
| Court | Ohio Supreme Court |
146 Ohio St.3d 271
55 N.E.3d 1073
COMBS, Appellee
v.
OHIO DEPARTMENT OF NATURAL RESOURCES, DIVISION OF PARKS AND RECREATION, Appellant.
No. 2014–1891.
Supreme Court of Ohio.
Submitted Nov. 17, 2015.
Decided April 19, 2016.
Arthur C. Graves Co., L.P.A., and Arthur C. Graves, Columbus, for appellee.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Eric A. Walker, Assistant Attorney General, for appellant.
Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for amicus curiae, Ohio Association for Justice.
O'DONNELL, J.
{¶ 1} The Ohio Department of Natural Resources (“ODNR”) appeals from a judgment of the Tenth District Court of Appeals, that reversed a grant of summary judgment in its favor in connection with an action filed by Richard Combs for injuries sustained when an ODNR boom mower threw a rock that struck him in the eye.
{¶ 2} R.C. 1533.181, the recreational user statute, provides that no landowner owes any duty to a recreational user to keep the premises safe for entry or use or extends any assurance in that regard. Thus, a landowner is not liable to a recreational user for injuries caused by the defective condition of a recreational premises. Here, however, the injuries resulted from the alleged negligent operation of a boom mower, not from the condition of the
premises. ODNR has a duty to conduct mowing safely and can be held liable for the negligence of its employees if it breaches that duty. Thus, the appellate court correctly reversed the grant of summary judgment, and we affirm its judgment.
Facts and Procedural History
{¶ 3} On July 27, 2011, Combs was celebrating his birthday at Indian Lake State Park, which is open to the public without an admission charge. He spent the night fishing and early the next morning walked to Pew Island, which affords better fishing. As Combs walked across the causeway to Pew Island, Jerry Leeth, an ODNR employee, was using a boom mower to cut weeds and brush along the lakeshore. One of the mower blades hit the riprap—stones placed along the waterline to prevent erosion—and threw a rock that struck Combs in the eye and face and caused serious injuries.
{¶ 4} Combs sued ODNR in the Court of Claims, alleging that Leeth negligently operated the boom mower and caused his injury. The Court of Claims granted ODNR's motion for summary judgment, finding that because Combs was a recreational user, ODNR had no duty to keep the park safe for his entry or use and his negligence claim was barred as a matter of law.
{¶ 5} The Tenth District Court of Appeals reversed the decision of the Court of Claims, explaining that although the recreational user statute abolished the property owner's duty to keep the premises safe for entry and use by recreational users, it provides immunity only for injuries caused by the defective condition of the premises. The appellate court held that because Combs claimed that he
was injured by the negligence of a park employee and not by a defect in the premises, the recreational user statute did not apply.
Positions of the Parties
{¶ 6} On appeal to this court, ODNR maintains that landowners who open their lands to recreational users have absolute immunity for any injury that occurs on the premises, contending that the recreational user statute precludes negligence claims as long as the user entered the land without paying a fee. It states that pursuant to R.C. 1533.181, the landowner owes no duty to a recreational user and therefore cannot be held liable for any negligent acts or omissions. It further notes that the General Assembly departed from the common law rule that treated recreational users as licensees, “transforming them into, in essence, trespassers under the common-law premises-liability regime.” Further, ODNR asserts, the legislature could not have intended to discourage landowners from performing the maintenance needed to make the premises safer and more enjoyable to recreational users. And, lastly, it distinguishes the lead opinion in Ryll v. Columbus Fireworks Display Co., Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372, because in that case, it notes, the injury arose from a foreign object brought onto the land—shrapnel from a firework shell—whereas in this case, Combs was injured when the mower threw a rock, which ODNR claims was part of the premises.
{¶ 7} Combs admits that he was a recreational user at the time of his injury and that ODNR held Indian Lake State Park open for recreational use without charge, but he contends that recreational user immunity attaches only when injury results from the condition of the premises. He asserts that he was not injured by the condition of the premises and that a landowner is not immune for its own active negligence, citing cases from California, Utah, and Iowa holding that recreational user immunity does not extend to acts of
vehicular negligence committed by the landowner or its employees on the premises.
{¶ 8} Accordingly, we are asked to address what duty, if any, a landowner owes to recreational users for alleged acts of negligence by employees occurring on the premises.
Law and Analysis
Common Law Premises Liability
{¶ 9} At common law, the duty owed by a landowner to those who entered the premises depended on the status of the entrant: invitee, licensee, or trespasser. Englehardt v. Philipps, 136 Ohio St. 73, 77, 23 N.E.2d 829 (1939). A landowner owes an invitee the duty to “exercise ordinary care to render the premises reasonably safe,”
Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925), paragraph one of the syllabus, but “owes no duty to a trespasser or licensee upon [the] land except to refrain from wanton, willful or reckless misconduct which is likely to injure him,” Soles v. Ohio Edison Co., 144 Ohio St. 373, 59 N.E.2d 138 (1945), syllabus; see also Scheibel v. Lipton, 156 Ohio St. 308, 328–329, 102 N.E.2d 453 (1951) (discussing the duties owed to business visitors and social guests).
{¶ 10} However, the common law also recognizes that a landowner, “being aware of the presence of a licensee, or even a trespasser, is required to use ordinary care to avoid injury to him arising from the active negligence of such owner or his servants.” Union News Co. v. Freeborn, 111 Ohio St. 105, 107, 144 N.E. 595 (1924). The duty to exercise reasonable care arises after the landowner knows or should know that a licensee or trespasser is on the land. 2 Restatement of the Law 2d, Torts, Section 336, Comment d (1965). See also Keeton, Dobbs, Keeton & Owen, Prosser and Keeton on the Law of Torts, Section 58, 397–398, and Section 60, 416 (5th Ed.1984); Salemi v. Duffy Const. Corp., 3 Ohio St.2d 169, 209 N.E.2d 566 (1965).
The Recreational User Statute
{¶ 11} In 1963, the General Assembly enacted the recreational user statute, R.C. 1533.18 et seq., Am.H.B. No. 179, 130 Ohio Laws 423, 1638, “to encourage owners of premises suitable for recreational pursuits to open their land to public use without fear of liability.” Loyer v. Buchholz, 38 Ohio St.3d 65, 66, 526 N.E.2d 300 (1988). R.C. 1533.181(A) provides:
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.
{¶ 12} R.C. 1533.18(A) defines “premises” to include “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.” However, in McCord v. Ohio Div. of Parks & Recreation, 54 Ohio St.2d 72, 74, 375 N.E.2d 50 (1978), we concluded that recreational user immunity also applies to state-owned property, because the waiver of sovereign immunity in R.C. 2743.02(A) provides
that the liability
of the state will be determined in accordance with the rules of law applicable to suits between private parties.
{¶ 13} Pursuant to R.C. 1533.18(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...
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