Moss v. Department of Natural Resources

• Decision Date: 07 May 1980
• Docket Number: No. 79-433,79-433
• Citation: 62 Ohio St.2d 138,404 N.E.2d 742,16 O.O.3d 161
• Parties: , 16 O.O.3d 161 MOSS et al., Appellants, v. DEPARTMENT OF NATURAL RESOURCES et al., Appellees. O'NEAL, Admx., Appellant, v. DEPARTMENT OF NATURAL RESOURCES et al., Appellees.
• Court: Ohio Supreme Court

Page 138

62 Ohio St.2d 138

404 N.E.2d 742, 16 O.O.3d 161

MOSS et al., Appellants, v. DEPARTMENT OF NATURAL RESOURCES et al., Appellees.

O'NEAL, Admx., Appellant, v. DEPARTMENT OF NATURAL RESOURCES et al., Appellees.

No. 79-433.

Supreme Court of Ohio.

May 7, 1980.

Syllabus by the Court

1. Pursuant to the enactment of R.C. 2743.02(A), the definition of "premises" in R.C. 1533.18(A) effectively encompassed state-owned lands. (McCord v. Division of Parks and Recreation, 54 Ohio St.2d 72, 375 N.E.2d 50, approved and followed.)

2. A person is not a "recreational user," as defined in R.C. 1533.18(B), if he pays a fee or consideration to enter upon "premises" to engage in recreational pursuits.

3. R.C. 1533.18 and 1533.181 do not violate the equal protection provisions of the United States and Ohio Constitutions.

The two causes presented in this appeal were consolidated by the Court of Appeals to resolve identical issues of law. Each cause was initially brought in the Court of Claims.

In the Moss case, plaintiff-appellants, Lenore and Abraham Moss, allege that Mrs. Moss fractured her ankle stepping into a hole at West Branch State Park, Ravenna, Ohio. Plaintiffs further allege that the hole was caused by the combined negligence of the state and other private parties. Plaintiffs also assert that they made certain purchases at the park, i. e., gasoline (for plaintiffs' boat) and refreshments.

In the O'Neal case, plaintiff-appellant, Bobbie O'Neal, as administratrix of the estate of Diedre O'Neal, sues in wrongful death for the drowning of the decedent at Punderson State Park, Geauga County. Plaintiff alleges that the decedent's death was caused by the negligence of the defendants, various departments of the state and Edward Skipper, manager of the area. As in the Moss case, plaintiff O'Neal asserts an expenditure by the aggrieved party at the state facility, to wit, the rental of a canoe.

The Court of Claims dismissed the claims against the state for failure to state a claim for relief because the state was immune from liability pursuant to R.C. 1533.181. Since only non-state parties remained, the court reasoned that it lacked jurisdiction as to them, and accordingly dismissed both cases in their entirety. The Court of Appeals affirmed.

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

Komito, Nurenberg, Plevin, Jacobson, Heller & McCarthy Co., L.P.A., Leon M. Plevin, Thomas Mester and Harlan M. Gordon, Cleveland, for appellants.

William J. Brown, Atty. Gen., Steven L. Gardner and Thomas E. Turk, Asst. Attys. Gen., for appellee Department of Natural Resources.

Lane, Alton & Horst, William L. Millard and David Wm. T. Carroll, Columbus, for appellee Dodson-Lindblom Associates.

PAUL W. BROWN, Justice.

The central issue in this appeal concerns the applicability of R.C. 1533.181 to the facts of this cause. R.C. 1533.181 provides:

"(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."

"Premises" and "recreational user" are defined in R.C. 1533.18, as follows:

"(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."

Appellants contend that the state may not use R.C. 1533.181 as a shield in these causes for two reasons. First, appellants argue that the term "premises," as defined in R.C. 1533.18(A), does not encompass state-owned lands. Second, appellants assert that the Mosses and decedent O'Neal were not "recreational users," pursuant to R.C. 1533.18(B), because they paid consideration at the parks.

Appellants' first contention was addressed, and resolved, by this court in McCord v. Division of Parks and Recreation (1978), 54 Ohio St.2d 72, 375 N.E.2d 50. In 1963, when R.C. 1533.18 and 1533.181 were enacted, this state was immune from tort liability by the doctrine of sovereign immunity. See McCord, supra. R.C. 1533.181 was enacted to create an immunity for private land owners against recreational users. ^* Since the state was already protected from liability under the sovereign immunity doctrine, the General Assembly did not include state-owned property within the definition of premises in R.C. 1533.18. Nevertheless, both privately and publicly-owned lands retained an immunity against recreational users.

In 1975, this state waived its immunity as to certain tort claims by the enactment of R.C. 2743.02(A). In so doing, the state provided that it "waive(d) * * * its immunity from liability and consent(ed) to be sued, and have its liability determined * * * in accordance with the same rules of law applicable to suits between private parties * * * ." (Emphasis added.) As we noted in McCord, supra, at page 74, 375 N.E.2d at page 52, one such rule of law " 'applicable to suits between private parties' " is R.C. 1533.181(A). R.C. 2743.02(A) thus made R.C. 1533.181(A) as applicable to state-owned lands as it was to privately-owned property. These statutes were not adopted in a vacuum. They must be understood in their historical context if we are to interpret and construe them in accordance with legislative will. Appellants' first contention is not well taken.

Appellants next argue that the Mosses and decedent O'Neal paid a fee or consideration at the state parks and thus they were not "recreational users" as that phrase is defined in R.C. 1533.18(B). The Court of Appeals held that the state possessed complete immunity regardless of whether a patron has paid a fee or consideration to the state, or one of its agencies. This was based upon the statutory definition of "recreational user" as one who enters premises for recreational pursuits without paying an admittance charge "other than a fee or consideration paid to the state or any agency thereof." The Court of Appeals interpreted this quoted provision to mean that any time a fee or consideration is paid to the state or its agencies, the state nonetheless remains immune. We do not agree.

R.C. 1533.18(A), as originally enacted, did not include state-owned lands within the definition of "premises," supra. Section (B) of the same statute defines "recreational user" as one who enters "premises." Thus, the statute did not originally contemplate that a "recreational user" could be one who enters state-owned property, the situation now before us. This raises the question as to why the General Assembly would make a different rule where consideration is paid to enter state-owned property...