Johnson v. Village of New London

• Decision Date: 06 April 1988
• Docket Number: No. 87-707,87-707
• Citation: 521 N.E.2d 793,36 Ohio St.3d 60
• Parties: JOHNSON, Appellant, v. VILLAGE OF NEW LONDON, Appellee.
• Court: Ohio Supreme Court

Page 60

36 Ohio St.3d 60

521 N.E.2d 793

JOHNSON, Appellant, v. VILLAGE OF NEW LONDON, Appellee.

No. 87-707.

Supreme Court of Ohio.

April 6, 1988.

Syllabus by the Court

A political subdivision has derivative immunity from tort liability to a recreational user of municipal property to the same extent that an owner of private land has, pursuant to R.C. 1533.181, immunity from tort liability to a recreational user of private property. (Enghauser v. Eriksson Engineering Ltd. [1983], 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228, followed; Marrek v. Cleveland Metroparks Bd. of Commrs. [1984], 9 Ohio St.3d 194, 9 OBR 508, 459 N.E.2d 873, clarified.)

The facts in the cause now before us are undisputed. On January 11, 1985, at approximately 10:30 p.m., appellant, Carroll Edward Johnson, was injured while riding his snowmobile at the village of New London's Reservoir Park. Appellant was injured when he struck an above-ground cable which had been installed to prevent pick-up trucks and four-wheel drive vehicles from driving onto the retention embankment. The reservoir was owned and operated by the village of New London, appellee herein, as a recreational area open to the public for activities such as snowmobiling.

On June 19, 1985, appellant brought suit against appellee alleging that appellee had negligently installed the above-ground cable in such a manner that it was not visible at night and thereby created a nuisance. On May 14, 1986, pursuant to R.C. 1533.18 and 1533.181, appellee sought summary judgment on the basis of statutory immunity. This motion was granted on August 15, 1986. Upon appeal, the court of appeals affirmed the judgment of the trial court, finding that " * * * [t]he Village of New London, owner and operator of the reservoir, is a governmental entity and should be afforded an equal right to the statutory defense accorded the state, the municipal park district, and private land owners * * * [pursuant to R.C. 1533.181]."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Sindell, Rubenstein, Einbund, Pavlik & Novak, William J. Novak and Michael S. Tucker, Cleveland, for appellant.

Carpenter, Paffenbarger & McGimpsey and Earl R. McGimpsey, Norwack, for appellee.

DOUGLAS, Justice.

The instant appeal requires this court to determine whether a political subdivision, which holds land open to certain recreational use without charge, is immune from tort liability to a recreational user who is injured on such property. For the reasons expressed infra, we answer this question in the affirmative.

It is axiomatic that a motion for summary judgment may only be granted where there exists 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). Moreover, summary judgment is inappropriate unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the nonmoving party. Id. Furthermore, in reviewing a motion for summary judgment, this court, as is the case with other courts, must construe the evidence in a light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198, 201-202, 24 OBR 426, 429, 494 N.E.2d 1101, 1104; Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 188, 26 OBR 160, 161, 497 N.E.2d 1118, 1120; McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 31 OBR 449, 450, 510 N.E.2d 386, 388. Therefore, absent an affirmative showing by the moving party, appellee herein, that no genuine issue exists as to any material fact, Toledo's Great Eastern Shoppers City, Inc., supra; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47; Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520, 26 O.O.2d 206, 207, 196 N.E.2d 781, 783, and that such party is entitled to judgment as a matter of law, summary judgment may not be granted.

The case before us contains no genuine issues of material fact. Appellant's status as a "recreational user" of the reservoir park is undisputed. ¹ Thus, the sole question to be determined herein is whether appellee is entitled to judgment as a matter of law.

Appellant argues that a political subdivision, such as appellee herein has no statutory immunity pursuant to R.C. 1533.18 and 1533.181. ² While we agree that appellee has no direct statutory immunity pursuant to R.C. 1533.181, we find that appellee has, under the facts of the cause now before us, derivative immunity from tort liability to recreational users of appellee's property.

R.C. 1533.18 and 1533.181, as enacted in 1963 (130 Ohio Laws 423), created immunity for owners of private land against injury occurring to recreational users of such land. Subsequently, in 1965 (131 Ohio Laws 521), the scope of this immunity was expanded, by redefining "premises," to permit private parties who were leasing state-owned land to share in the immunity. R.C. 1533.18(A). Thus, lands owned by the state, political subdivisions and municipalities have never been within the express statutory definition of lands which were subject to this immunity and, accordingly, those governmental units had no direct statutory immunity, pursuant to R.C. 1533.181, from tort liability to recreational users of such property.

However, it is important to note that when R.C. 1533.18 and 1533.181 were enacted, the state, its political subdivisions and municipalities all had immunity from recreational-user tort liability by virtue of the doctrine of sovereign immunity. Thus, the General Assembly did not need to include, and in fact did not include, government-owned land as a type of property receiving immunity pursuant to R.C. 1533.181, see McCord v. Division of Parks & Recreation (1978), 54 Ohio St.2d 72, 8 O.O.3d 77, 375 N.E.2d 50; Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138, 16 O.O.3d 161, 404 N.E.2d 742, as all landowners were, through some type of immunity, then immune from tort liability to recreational users of property.

In 1975, the state waived its immunity from certain tort claims and consented to be sued " * * * in accordance with the same rules of law applicable to suits between private parties * * *." R.C. 2743.02(A). See, also, McCord, supra; Moss, supra; and Marrek v. Cleveland Metroparks Bd. of Commrs. (1984), 9 Ohio St.3d 194, 9 OBR 508, 459 N.E.2d 873. When the state waived its immunity, one of the rules of law applicable to suits between private parties was the statutory immunity afforded owners of private land pursuant to R.C. 1533.181. Thus, pursuant to the Court of Claims Act, specifically R.C. 2743.02(A), the state has a derivative immunity from suits for tortious injuries to recreational users of state-owned property. See McCord, supra; Moss, supra. The immunity is derivative because it is not conferred directly upon the state by R.C. 1533.181, but rather is derived from the immunity enjoyed by private persons under the provisions of R.C. 1533.181.

Similarly, between 1982 and 1983, this court abolished municipal sovereign immunity. Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749, and Enghauser v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228. Thereafter, municipalities were " * * * held liable, the same as private corporations and persons, for the negligence of their employees and agents in the performance of * * * activities." Enghauser, supra, at paragraph two of the syllabus. As was the situation with the Court of Claims Act, when Enghauser was decided, R.C. 1533.181 was one of the rules governing the liability of private persons for negligence. Thus, municipalities, pursuant to Enghauser, remained immune from tort liability to recreational users of municipal property because of R.C. 1533.181. Like the immunity of the state, the municipalities' recreational-user immunity is derivative, being conferred indirectly from R.C. 1533.181 to the municipalities through this court's holding in Enghauser, and does not arise directly from R.C. 1533.181. ³ Since owners of private land are statutorily immune from tort liability to recreational users, and municipalities have, pursuant to Enghauser, only the same liability for negligent acts as do private persons, municipalities are immune from liability to recreational users of municipal property.

We hold, therefore, that a political subdivision has derivative immunity from tort liability to a recreational user of municipal property to the same...