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Property
hazards don’t disqualify immunity under Ohio’s Recreational User Statute
From Sam Custer
OSU Extension, Darke County
We often explain the Ohio Recreational User’s Statute to farmland
owners because the law provides liability protection when someone asks
to hunt, fish, snowmobile or conduct other recreational activities on
the farm. Peggy Hall, Asst. Professor, OSU Extension Agricultural
& Resource Law Program reports that ss long as the landowner grants
permission for the use and does not receive a fee from the recreational
user, the landowner does not owe a legal duty to assure that the
premises are safe for the user. This immunity from liability
encourages those who own non-residential land to open the land for
recreational activities.
Landowners always have “what if” type questions when we explain this
law. Recently, the Ohio Supreme Court answered one of those “what
if” questions: what if I modify the property in some way and
create a hazardous condition that causes an injury; does the
Recreational User’s Statute still protect me from liability? The
Supreme Court’s response: yes. But the court was not in
complete agreement on the issue.
The accident at the heart of the case occurred when an 18 year old boy
went sledding in a park owned by the City of Circleville, Ohio.
The boy slid head first into a wooden railroad tie which the city had
transported to the park from a construction site. The city
planned to temporarily store the railroad tie and other construction
debris at the park because no storage space was available at its
maintenance facility. Upon hitting the railroad tie, the boy
broke his neck and became paraplegic.
In its decision in the lawsuit filed by the boy, the trial court
determined that the city was immune from liability because of the
Recreational User’s Statute, which grants recreational immunity to
governmental as well as private landowners. The boy appealed the
case to the Fourth District Court of Appeals, which affirmed the trial
court’s decision. The Ohio Supreme Court agreed to review the
case.
The question before the court was whether the city’s action of placing
the railroad ties in the park created an exception from the immunity
provided by the Recreational User’s Statute. The boy’s legal
counsel argued that storage of the railroad ties and other construction
debris in the park had changed the property’s essential character so
that it was no longer a recreational property and should not fall under
the protection of the Recreational User’s Statute. A
majority of the court disagreed, concluding that the city’s alleged
creation of a hazard on the premises did not affect the city’s immunity.
“We cannot accept as reasonable any contention that the presence of a
railroad tie in a public park changes its essential character as a
recreational space,” wrote Justice Sharon Kennedy. “Critics may
claim that our decision reaches a harsh result. However, the
language of the recreational-user statute is plain; a property owner
owes no duty to a recreational user to keep the property safe for entry
or use. Creating an exception to this immunity is a policy
decision that comes within the purview of the General Assembly, not the
courts. … [W]e will not create an exception by judicial fiat.”
Justice William O’Neill entered a dissenting opinion, joined by Justice
Paul Pfeifer, who also wrote a separate dissent. “[L]et’s
be accurate here — we are not talking about a single railroad tie,”
stated Justice O’Neill. “That tie that crippled this child was
part of an overall scheme of disposal of huge mounds of debris that the
city had incredibly decided to place in the middle of a recreational
park! Cover it with a light dressing of snow, and the perfect killing
field was created. . . . [T]he city made a decision to dump huge mounds
of debris into a city-owned park. When it did that, it lost its
“recreational user” immunity entirely.”
In his dissent, Justice Pfeifer questioned the protection afforded by
the Recreational User’s Statute. The immunity provisions in those
statutes, he stated, “provide unreasonable and unconstitutional
protection to government entities that own property.”
What does the Court’s decision mean for agricultural landowners?
While the case did not involve an agricultural property, the decision
does have impact for agricultural landowners. A few lessons from
the case:
Affirmation of broad landowner immunity. The court’s decision
affirms the broad immunity afforded by Ohio’s Recreational User’s
Statute. We often hear questions such as “but what if I left my
equipment out in the field?” or “but what if they fall into that hole I
just dug?” Based on the court’s decision, the landowner has
no duty to make the property safe and won’t be liable for injuries
caused by any “hazards” the landowner created on the
property. Remember that this immunity applies to
“recreational users”– property visitors who have the landowner’s
permission to engage in recreational activities such as hunting,
fishing and snowmobiling on non-residential property and who haven’t
paid the landowner for the recreational activity (with an exception for
hunting lease payments; landowners may receive hunting lease payments
and still retain recreational user immunity).
Take recreational permission seriously. This lawsuit arose
because someone suffered a serious injury. Even with immunity
protection, landowners should think twice about allowing recreational
users on the property when highly dangerous situations are
present. If there’s a good chance that someone could suffer harm
from the situation, avoid the potential of harm and simply don’t grant
permission for people to be on the property.
Immunity comes at a cost. While it can prevent
landowner liability, the Recreational User’s Statute can’t stop a
harmed party from taking the landowner to court. The
city incurred not only the costs of defending itself through three
court hearings, involving attorney fees and the city’s time, but also
the cost of negative publicity. Surely, more responsible land
management decisions would have cost less and kept someone from
suffering harm.
The Ohio Supreme Court’s decision in Pauley v. Circleville is available
at http://go.osu.edu/pauleyvscircleville. The Ohio Recreational
User’s Statute is in Ohio Revised Code Sections 1533.18 and 1533.181.
For more information, visit the Darke County OSU Extension web site at
www.darke.osu.edu, the OSU Extension Darke County Facebook page or
contact Sam Custer, at 937.548.5215.
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