March 26, 2014
Immunity

by Justice Paul E. Pfeifer

On a snowy afternoon in January 2007, Jeremy Pauley, 18, and three of his friends decided to go sledding at Barthelmas Park in their hometown of Circleville. Jeremy and Kevin Baisden started sledding around 5 p.m., while Danielle Ziemer and Natasha Cox watched. At around 6, when it was getting dark, Jeremy decided on a new location for his last sled run.

It so happened that in the summer of 2006, Circleville was offered free topsoil from a nearby construction site. The city uses topsoil for various projects, including reseeding the park. The nearly 200 truckloads were taken to a maintenance facility for storage. When that was full, the remaining topsoil was dumped on the park grounds, forming two mounds about 15 feet high.

It was to these mounds that Jeremy headed for his last run. Kevin moved the car so that the headlights lit the hill.  Jeremy claimed that as he sledded down the hill, he “hit an immovable object.” He “instantly went numb” and couldn’t move. Realizing that Jeremy was badly hurt, Kevin called 9-1-1.  Jeremy, it turned out, had suffered a broken neck, which caused him to become a quadriplegic.

At the time, Kevin didn’t notice any obstacle in Jeremy’s path, but the next day he found an object that looked like a railroad tie near where Jeremy was hurt.

Jeremy and his mother filed a complaint alleging that the city acted negligently, recklessly, and wantonly in dumping the 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.”

The trial court concluded – without a trial – that Circleville was immune from the lawsuit because of the recreational-user immunity law. The court of appeals affirmed that judgment, after which the case came before us – the Ohio Supreme Court.

The recreational-user law states: No landowner: 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 caused by any act of a recreational user.

Jeremy’s attorneys claimed that the law is designed to provide immunity only in specific circumstances. They argued that it doesn’t apply when a property owner makes the property “more dangerous without promoting or preserving recreational activities.”

Circleville argued that if a premises is freely open for recreational purposes and a person is injured while using it for a recreational purpose, the landowner has no duty to that user to keep the premises safe.

By a five-to-two vote, we affirmed the court of appeals’ judgment that Circleville was immune from liability.

According to the majority, to determine whether immunity applies, courts must examine the essential character of the property. The majority stated that the character of the premises envisioned by the recreational-user law involves “the true outdoors,” including elements such as “land, water, trees, grass, and other vegetation.”

But the property needn’t be entirely natural. For example, it might contain a softball field, which features certain manmade elements. The types of activities that qualify as recreational use are diverse: the law lists hunting, fishing, camping, swimming, and “other recreational pursuits.” Courts have broadly construed the “other recreational pursuits” to include sledding.

A decision by our court in a case from 1989 requires that, in these cases, a property be viewed as a whole. So, according to the majority, the question is whether any changes so altered “the essential character of the park as to take it outside the protection of the” recreational-user law. “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.”

Adopting Jeremy’s attorneys’ argument, the majority said, would conflict with the purpose of the recreational-user law, which is to encourage owners of premises suitable for recreational pursuits to open their land to public use without fear of liability. Removing the protection of immunity would undoubtedly cause property owners to restrict recreational use of their properties, or close them entirely, from fear of liability.

“The park in this case is an outdoor property with trees and grass and is open to the public free of charge for picnicking and sporting activities such as sledding, baseball, soccer, and basketball. The alleged defect in this case is an object resembling a railroad tie. When viewing the park property ‘as a whole,’ the existence of a single railroad tie does not change the essential character of the park to something other than a property that is open for recreational use.

“Critics may claim that our decision reaches a harsh result,” the majority wrote. However, the language of the recreational-user law 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 legislature, not the courts.

Justice William M. O’Neill and I cast the dissenting votes. I believe the immunity provisions in the law are overbroad and provide unreasonable and – with respect to governmental entities – unconstitutional protection to premises owners.

Justice O’Neill went further, saying that when “a property owner converts a recreational park to a municipal dump site for construction fill and debris,” there is no law in the land that should shield the owner “from accountability for such a disastrous action.” He concluded that “when the owner of a property that enjoys the immunity granted by the people of Ohio for recreational purposes makes a conscious decision to use the property for other purposes, the immunity ceases.”

Nevertheless, the majority ruled otherwise, and therefore the city is not liable for Jeremy’s injuries.

EDITOR'S NOTE: The case referred to is Pauley v. Circleville, 137 Ohio St.3d 212, 2013-Ohio-4541. Case No. 2012-1150. Decided October 16, 2013. Majority opinion written by Justice Sharon L. Kennedy.