Fetherolf v. State, Dept. of Natural Resources, Div. of Parks & Recreation, 82AP-66

• Decision Date: 27 May 1982
• Docket Number: No. 82AP-66,82AP-66
• Citation: 454 N.E.2d 564,7 Ohio App.3d 110,7 OBR 142
• Parties: , 7 O.B.R. 142 FETHEROLF, Appellant, v. The STATE of Ohio, DEPT. OF NATURAL RESOURCES, DIV. OF PARKS & RECREATION, Appellee.
• Court: Ohio Court of Appeals

Page 110

7 Ohio App.3d 110

454 N.E.2d 564, 7 O.B.R. 142

FETHEROLF, Appellant, v. The STATE of Ohio, DEPT. OF NATURAL RESOURCES, DIV. OF PARKS & RECREATION, Appellee.

No. 82AP-66.

Court of Appeals of Ohio, Tenth District, Franklin County.

May 27, 1982.

Syllabus by the Court

1. Since R.C. 1533.181(A)(1) provides that an owner of the premises owes no "duty to a recreational user to keep the premises safe for entry or use," an action cannot be brought against the owner by a recreational user for alleged wanton misconduct.

2. A person is a "recreational user" within the contemplation of R.C. 1533.18(B) when he enters the premises for the purpose of personally engaging in a recreational pursuit.

3. Sitting on the beach watching others swim constitutes a recreational pursuit within the contemplation of R.C. 1533.18(B).

William L. Stehle, Columbus, for appellant.

William J. Brown, Atty. Gen., and Warren M. Enders, Columbus, for appellee.

WHITESIDE, Presiding Judge.

Plaintiff-appellant, Larry W. Fetherolf, Sr., appeals from a judgment of the Court of Claims and raises four assignments of error, as follows:

"I. The Court of Claims of Ohio erred in holding as a matter of law that plaintiff-appellant's claim of willful and wanton misconduct against the state was barred by Ohio Revised Code Sections 1533.18 and 1533.181.

"II. The Court of Claims of Ohio erred in not holding that the state, even if under no initial obligation to protect the public, once having undertaken to do so, must use ordinary care to so protect, or else be liable for damages.

"III. The Court of Claims of Ohio erred in holding as a matter of law that plaintiff-appellant was a recreational user, as defined by Ohio Revised Code Section 1533.18(B), and thereby barred from recovery by Ohio Revised Code Section 1533.181.

"IV. The Court of Claims of Ohio erred in not holding that, as applied to actions for willful and wanton misconduct, Ohio Revised Code Section 1533.181 violates the equal protection clauses of the United States and Ohio Constitutions."

By his complaint, plaintiff seeks damages for injuries to his right leg ankle and foot and other parts of his body as a result of a fall during a visit with his family to Delaware State Park sustained as he "stepped from the concrete pad onto a muddy area which was negligently maintained." Plaintiff further alleged that defendant was guilty of willful and wanton misconduct "in that they had a duty to warn plaintiff and failed to warn him of a dangerous situation."

Defendant filed a motion for summary judgment supported by an affidavit of the park manager stating that Delaware State Park is owned and operated by the state and open to the public and that no fee is charged for use thereof. Defendant, therefore, sought dismissal pursuant to R.C. 1533.181(A)(1) providing in part that the owner of the premises owes no "duty to a recreational user to keep the premises safe for entry or use."

Plaintiff filed an affidavit, as well as one of his wife, in opposition to the motion for summary judgment, which states in part:

"1. On July 6, 1980, I took my family to Delaware State Park. The purpose of the trip was to allow my family to swim in the lake.

"2. I was unable to participate in the swimming due to a damaged right shoulder. My intent was to sit by the lake while my family swam. I was not using the park facilities in any other manner.

"3. I was walking toward the beach area with my three-year-old daughter. I was walking in the grass and hit a mud slick and took a very hard fall which resulted in severe damage to my lower leg and ankle which required surgery and permanent screws in my ankle.

"4. After I fell, the lifeguards came over to try to help until the emergency squad arrived. At this time they said that they were afraid someone would get hurt on the mud slick due to the washout and had informed their supervisors about the danger. However, the supervisors did nothing in fact to eliminate the danger."

The affidavit of plaintiff's wife was similar to his.

The trial court sustained defendant's motion for summary judgment and dismissed the case upon authority of Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138 404 N.E.2d 742 and McCord v. Division of Parks & Recreation (1978), 54 Ohio St.2d 72 , 375 N.E.2d 50.

In both Moss and McCord, the Supreme Court held that R.C. 1533.181 applies to the state since state-owned land is within the definition of "premises" as defined in R.C. 1533.18(A). R.C. 1533.181 provides as follows:

"(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."

Clearly, the state owed no duty to plaintiff and, therefore, could not be liable to him if he were a recreational user of Delaware State Park at the time of his injury. Plaintiff contends that he was not a recreational user because, as a result of his injured shoulder, he was unable to use the recreational facilities which were to be enjoyed by his family but, instead, was only going to sit and watch. R.C. 1533.18(B) defines recreational user, as follows:

" '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."

Accordingly, whether plaintiff was a recreational user at the time in question depends upon whether he entered the park for the purpose of engaging in a recreational...