Ricky D. Miller v. City of Sheffield Lake

• Decision Date: 08 April 1987
• Docket Number: 4133,87-LW-0861
• Parties: Ricky D. MILLER, et al., Plaintiffs-Appellants, v. CITY OF SHEFFIELD LAKE, Defendant-Appellee.
• Court: Ohio Court of Appeals

Ricky D. MILLER, et al Plaintiffs-Appellants, v. CITY OF SHEFFIELD LAKE, Defendant-Appellee.

No. 4133.

87-LW-0861 (9th)

Court of Appeals of Ohio, Ninth District Lorain

April 8, 1987

Appeal from Judgment Entered in the Common Pleas Court, County of Lorain, Case No. 96973 86.

Mark J Mihok and Robert D. Gary, Lorain, for plaintiffs.

David S. Marshall and James J. Dyson, Lyndhurst, for defendant.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

CACIOPPO Judge.

Plaintiffs-appellants, Ricky D.O. Miller, and his father, Ricky D. Miller, appeal the trial court's order dismissing their complaint for negligence against defendant-appellee, City of Sheffield Lake.

The complaint alleged that the son was injured while playing on a merry-go-round in a city park. Appellants claimed that the city was negligent in not correcting the unsafe condition of the merry-go-round, and that this negligence was the proximate cause of their injuries. The city responded to the complaint with a Civ.R. 12(B)(6) motion to dismiss.

In its motion to dismiss, the city maintained that R.C. 1533.181 was an absolute bar to their liability in this case. Appellants filed a memorandum in opposition to the city's motion. In their memorandum, appellants attempted to distinguish the Ohio Supreme Court cases applying R.C. 1533.181 to governmental entities. The trial court granted the City's motion. We affirm.

Because appellants' assignments of error all deal with the application of R.C. 1533.181 to governmental entities, they will be addressed together.

ASSIGNMENTS OF ERROR

"1.The trial court erred in dismissing appellants' complaint as O.R.C. Sec. 1533.181 does not foreclose a cause of action in negligence for tortious acts of a municipal corporation which occurred in a public park.

"2.The trial court erred in dismissing appellants' complaint as O.R.C. Sec. 1533.181 does not apply to municipal corporations in light of the provision of O.R.C. Sec. 723.01.

"3.The provisions of O.R.C. Sec. 1533.181 violate constitutional due process as applied to this case, and the trial court erred in not so finding."

R.C. 1533.181 recites that:

"(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."

A trial court cannot grant a motion to dismiss for failure to state a claim upon which relief could be granted unless plaintiff's complaint has alleged no set of facts entitling him to relief. O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242 syllabus. Here, the facts alleged in appellants' complaint fall squarely within the purview of R.C. 1533.181. Appellant's challenges to R.C. 1533.181 have been made and refuted in at least three Ohio Supreme Court decisions. McCord v. Division of Parks and Recreation (1978), 54 Ohio St.2d 72; Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138; Marrek v. Cleveland Metroparks Bd. of Commrs. (1984), 9 Ohio St.3d 194; See, also, Vitai...