Oral Argument Preview: Determining the Scope of Recreational User Immunity. Jeremy Pauley, et al. v. City of Circleville, et al.

Update: On October 16, 2013, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On April 24, 2013 the Supreme Court of Ohio will hear oral argument in the case of Jeremy Pauley et al. v. City of Circleville, et al., 2012-1150.  At issue in this case is whether the Ohio recreational user immunity statute provides immunity to land owners who create man-made hazards on their property that do not further any recreational purpose. The Court will hear this case in Logan County, as part of the Court’s off-site program.

Case Background

Jeremy Pauley, then 18 years old, was sled riding with friends at Barthelmas Park, owned by the City of Circleville. While riding down one of two snow-covered, man-made hills, roughly 15 feet high and 20 feet around, Pauley struck an object, later discovered to be a five foot long railroad tie, and was seriously injured.  The railroad tie had been deposited in the pile and was hidden by the snow. As a result of the collision, Pauley’s neck was fractured and he is now a quadriplegic.

The two man-made mounds were created by municipal workers from topsoil given to the City by construction workers at a local construction site.  According to Pauley, when the construction workers loaded the dirt, no one examined the topsoil for debris.  The topsoil was originally dumped at the City’s maintenance facility.  However, when no room remained at the maintenance facility, the City created the two mounds at the  Park.

Pauley filed suit against the City of Circleville. It was undisputed that Pauley was a recreational user. A recreational user is one who has been given permission to enter land for a recreational use without payment of fee or consideration to the owner, lessee or occupant. The trial court granted summary judgment to the City, solely on the basis of recreational user immunity.

Court of Appeals Decision

The Fourth District Court of Appeals, in a divided decision, upheld the trial court’s ruling and agreed that a “recreational user” is barred from pursuing any civil claims occurring on open land except in instances of “flying objects.”

The dissenting judge found that the addition of dirt mounds changed the essential character of the premises, no longer fulfilling the purpose of recreational use immunity, and would deny summary judgment.

 Key Statute and Precedent

R.C. 1533.181, Ohio’s “Recreational User Immunity” statute states:

(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

Miller v. City of Dayton, 42 Ohio St. 3d 113 (1989)Syllabus

¶ 1.  In determining whether a person is a recreational user under R.C. 1533.18(B), the analysis should focus on the character of the property upon which the injury occurs and the type of activities for which the property is held open to the public (citations omitted).

When man-made aspects are added to the property, the question is whether the addition changed the character of the property.

Ryll v. Columbus Fireworks Display Co., Inc., 95 Ohio St. 3d 467 (2002)

This case involved the death of a recreational user killed by shrapnel from an exploding shell from a firework display.  The Court held that the City was not immune from liability under R.C. 1533.181 because the fireworks display had nothing to with the “premises” as defined by the statute.  To allow immunity would be to immunize any negligent actions on  the premises.

Pauley’s Argument

Pauley argues that although property owners should be free to improve their land in ways that add recreational value, immunity should not extend to man-made hazards that do not add any recreational value to the land.  The concealment of a railroad tie dumped in the Park does not enhance its recreational value, therefore, summery judgment was erroneously granted.  The purpose of R.C. 1533.181 is to encourage land owners to open up their lands suitable for recreational use to the public without fear of liability.  The statute has been used to prevent claims against land owners based upon defects in the land and accidents through no fault of the land owner.  If Pauley had been injured in an area of the park left to its natural state or improved for the purpose of promoting a recreational activity, R.C. 1533.181 would provide immunity to the City.  However, because Pauley was injured by a man-made object having no relation to a recreational purpose, immunity should not preclude his claim.  Under the City’s “wildly expansive” construction of the recreational immunity statute, every “recreational user” would be automatically denied a remedy in all instances.

Pauley also argues that when man-made objects are involved, liability has only been precluded when the object enhanced the recreational activities on the property.  Based on Miller, the question is whether the man-made object changes the character of the property and places it outside the protection of the recreational immunity statute.  Reasonable minds could certainly conclude that a railroad tie does nothing to enhance the recreational value of the property.  In fact, the topsoil was only in the Park because the maintenance facility was full.  The use of the Park as a storage facility for the topsoil transformed the character of the Park.

In passing R.C. 1533. 181, the General Assembly never intended to afford blanket immunity for a property owner’s careless and reckless acts.  The bright-line rule advanced by the City of Centerville is incompatible with precedent.

City’s Argument

The City of Circleville argues that the General Assembly established a bright-line rule that if the premises are open to the public for recreational purposes and a person using the premises for a recreational purpose is injured, the landowner is not liable.  Pauley was a recreational user injured in a recreational area while participating in a recreational activity.  Those facts are all that is required to ensure that the City, as landowner, is not held liable for Pauley’s injuries.

Furthermore, R.C. 1533.181(A)(3)  applies to injuries caused by the recreational user himself.  Pauley himself caused his injury by sledding headfirst down a small, snow covered mound illuminated only by his headlights.

The City argues that Pauley is asking the Court to create a limitation to recreational immunity that does not exist in the unambiguous statutory language.  While Pauley may disagree with the wisdom of the General Assembly, the Court has made clear that the wisdom of the legislature is beyond the purview of the Court.

Ohio precedent establishes that a property owner does not have a duty to keep recreational premises safe for users.  Man-made hazards on recreational property that cause injury do not subject the property owner to liability.  The recreational user immunity statute has long been applied to man-made structures irrespective of whether the “instrumentality” sufficiently promoted a recreational use.  There is no exception.

Pauley’s argument, if accepted, would create uncertainty and effectively defeat the purpose of the statute.  It is impossible to determine how a recreational user will utilize a particular aspect of property.  That a person uses recreational property in an unconventional way should not eliminate immunity to the property owner.

Pauley’s Proposed 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.

Amicus Brief in Support of Pauley

An amicus brief was filed by the Ohio Association for Justice in support of Pauley.  The OAJ is an organization of practicing personal injury and consumer law attorneys in Ohio.

The OAJ urges the court not to extend R.C. 1533.181 immunity to owners who create man-made hazards that do not advance the recreational value of the property and create an unacceptable danger to citizens.  OAJ argues that Pauley’s proposition of law is consistent with the General Assembly’s purpose in enacting the Recreational User Immunity statute.  Imposing reasonable restrictions on immunity protects both reasonable property owners and citizens.  Additionally, other jurisdictions have adopted propositions of law similar to Pauley’s.

Amicus Briefs In Support of the City of Circleville

The County Commissioners Association of Ohio, Ohio Township Association and Ohio Parks and Recreation Association argue that Pauley seeks to move the focus of immunity away from whether the injured party was a recreational user to  whether the instrumentality on the property enhanced its recreational value.  This shift is contrary to the direct language of the statute and would create uncertainty for property owners and invite a flood of lawsuits.  The result would be property owners closing their property to recreational users.

The Ohio Association of Civil Trial Attorneys (OACTA), an organization of attorneys and corporate executives who devote time to defend civil lawsuits against individuals, corporations, and government entities, argues that the recreational user statute establishes a bright-line rule that grants immunity to owners of property held open to the public for recreational use and states that they owe no legal duty to a recreational user to keep the premise safe.  The Court should not create an exception that would impose a new legal duty on property owners to protect recreational users.  The statute clearly and unambiguously provides immunity for property owners who open up their property. If undermined, the purpose and intent of the statute would discourage owners from opening up their lands.

The Ohio Municipal League argues the purpose of the recreational user immunity statute is to encourage property owners to open up their property for recreational use.  Pauley’s proposed proposition of law directly conflicts with the language and intent of the statute.  Furthermore, the Court has recognized that a recreational premise need not be completely natural to receive immunity.

Student Contributor: Katlin Rust

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