Pauley v. City of Circleville

• Decision Date: 16 October 2013
• Docket Number: No. 2012–1150.,2012–1150.
• Citation: 998 N.E.2d 1083,137 Ohio St.3d 212
• Parties: PAULEY et al., Appellants, v. The CITY OF CIRCLEVILLE, Appellee, et al.
• Court: Ohio Supreme Court

137 Ohio St.3d 212

998 N.E.2d 1083

PAULEY et al., Appellants,

v.The CITY OF CIRCLEVILLE, Appellee, et al.

No. 2012–1150.

Supreme Court of Ohio.

Submitted April 23, 2013.

Decided Oct. 16, 2013.

Bashein & Bashein Co., L.P.A., and W. Craig Bashein; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers, Cleveland; and George R. Oryshkewych, Parma, for appellants.

Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, Todd M. Raskin, and Frank H. Scialdone, Cleveland; and Law Offices of Douglas J. May and Patrick J. Deininger, Cincinnati, for appellee.

Elk & Elk Co., Ltd., and Kimberly C. Young, Mayfield Heights, urging reversal for amicus curiae Ohio Association for Justice.

Roetzel & Andress, L.P.A., and Stephen W. Funk, Akron, 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., and Philip Hartmann, Rebecca K. Schaltenbrand, Cleveland, and Stephen J. Smith; and John Gotherman, Columbus, urging affirmance for amicus curiae Ohio Municipal League.

KENNEDY, J.

I. Introduction

{¶ 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.”

{¶ 2} Under the recreational-user statutes (R.C. 1533.18 and 1533.181), property owners who open their premises to recreational users free of charge are immune from liability for injuries suffered by recreational users while they are engaged in a recreational activity. Appellants urge this court to hold that if a property owner modifies his or her property in a manner that creates a hazard without promoting or preserving the recreational character of the property, immunity does not apply. Finding no support in statutory or case law, we decline to adopt such an exception. Therefore, we affirm the judgment of the court of appeals.

II. Facts and Procedural History

{¶ 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.

{¶ 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 approximately 150 to 200 truckloads, which were taken to its maintenance facility for storage. When that facility reached capacity, the remaining topsoil was taken to the park and emptied onto the ground, where it formed two mounds approximately 15 feet high.

{¶ 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.”

{¶ 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.

{¶ 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.”

{¶ 8} The trial court granted the city's motion for summary judgment, finding that the city was immune from suit under R.C. 1533.181. The court of appeals affirmed the trial court's judgment, with one judge dissenting. 2012-Ohio-2378, 971 N.E.2d 410 (4th Dist.).

{¶ 9} We accepted the appellants' discretionary appeal. 133 Ohio St.3d 1422, 2012-Ohio-4902, 976 N.E.2d 913.

{¶ 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 R.C. 1533.181 does not apply when a property owner makes the property “more dangerous without promoting or preserving recreational activities.”

{¶ 11} The city argues that R.C. 1533.181 provides a “bright-line rule”: “If a premises is freely open to the public for recreational purposes and a person is injured while using the premises for a recreational purpose, the landowner has no duty to that user to keep the premises safe.” The city argues that appellants “improperly ask this Court to judicially create an exception or limitation to recreational immunity that does not exist in the Statute.”

III. Analysis

Recreational–User Immunity

{¶ 12} We begin our analysis by examining the statute, as well as applicable case law.

{¶ 13} R.C. 1533.181(A) states:

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} R.C. 1533.18 states:

As used in sections 1533.18 and 1533.181 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.

{¶ 15} “Premises” under R.C. 1533.18(A) includes land owned by municipalities and the state. LiCause v. Canton, 42 Ohio St.3d 109, 110, 537 N.E.2d 1298 (1989).

{¶ 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 R.C. 1533.181); Brinkman v. Toledo, 81 Ohio App.3d 429, 611 N.E.2d 380 (6th Dist.1992) (even though sidewalks and streets are often used for recreational purposes, such premises are not protected by recreational-user immunity because they do not have the essential character of land held open to the public for recreational use).

{¶ 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 R.C. 1533.18(B) are generally conducted in ‘the wide open spaces,’ such as parks or wilderness tracts * * *.” Loyer at 67, 526 N.E.2d 300. Recreational premises typically “include elements such as land, water, trees, grass, and other vegetation.” Miller v. Dayton, 42 Ohio St.3d 113, 114, 537 N.E.2d 1294 (1989).

{¶ 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, 537 N.E.2d 1294.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. R.C. 1533.181(B) lists hunting, fishing, trapping, camping, swimming, operating a snowmobile, all-purpose vehicle, or four-wheel-drive motor vehicle, and “other recreational pursuits” as examples of the types of activities contemplated by the statute. And courts have broadly construed “other recreational...