Update: On October 16, 2013, the Supreme Court handed down a merit decision in this case. Read the analysis here.
On April 24, 2013 the Supreme Court of Ohio heard 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.
Jeremy Pauley, then 18 years old, was sled riding with friends near dark 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 fractured his neck. Pauley is now a quadriplegic. The two man-made mounds were created by municipal workers from topsoil given to the City. The topsoil was dumped in the park because there was no room left at the City maintenance facility. The railroad tie had been deposited in the pile and was hidden by the snow. Pauley filed suit against the City of Circleville. The trial court granted summary judgment to the city, finding the city immune under R.C. 1533.181, the recreational user immunity statute. In a split decision, the Fourth District Court of Appeals affirmed. Read the oral argument preview of the case here.
Key Statutes 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.
1533.18 Recreational user definitions. (A)Provides the definition of premises (B)Provides the definition of 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).
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.
At Oral Argument
Two things were not at issue in this case. It was undisputed that Pauley was a recreational user, and it was undisputed that he was on the premises with permission.
Plaintiff’s counsel argued that the statute does not apply in this case because the cause of the accident was not a legitimate part of the recreational premises. The dirt wasn’t the problem, it was the railroad tie that was. While the definition of premises is broad, and includes buildings and structures, and by implication, improvements, it does not include trash and debris. The plaintiff is not asking the Court to create a statutory exception, but rather to limit Miller to say that improvements that enhance the recreational value and that serve a legitimate purpose are entitled to immunity but not trash and debris—like the railroad tie. While property owners owe no duty to keep the premises safe or extend any assurances, they can’t do anything they want and create additional hazards.
There is no dispute in the case that Pauley was a recreational user, so under the statute the city owed no duty whatsoever to him to keep the premises safe. Only if a fee were charged for admission would such a duty kick in. Legislatures in some states have included some limits in their equivalent recreational user immunity statutes, but Ohio has not done so. Any limitation must come from the legislature, not the Court. The purpose of the statute is to encourage landowners to open their property free of charge for recreational acitivity, and Ohio’s law, which is very broad, achieves that purpose. It is to eliminate a landowner’s fear of liability. Just because a small part of the property may not serve a recreational purpose does not convert the property into a non-recreational facility.
What Was on Their Minds
The Snow-Covered Mound of Dirt
The Justices asked a lot of questions about how the accident actually happened. Was the mound built there to enhance the sled-riding experience, asked Chief Justice O’Connor? Was it a permanent or a temporary site for the debris? Would that make a difference? And wasn’t it the railroad tie, not the mound of dirt, that had nothing to do with improving the recreational character of the property?
Aren’t there legitimate uses for dirt in a park, asked Justice French?
What was the character of the park for sledding other than this incident, asked Justice Pfeifer?
Inherent Danger in Recreational Activities
Isn’t recreational activity dangerous by definition, asked Justice O’Neill? Even though the City makes no assurances that its parks will be safe, are there any limits to how far the city can go in escaping liability? Does it have carte blanche to make the premises more dangerous?
Premises aren’t stagnant, mused the Chief. Won’t there always be hazardous areas? Did the city know about the hazard? Should the plaintiff not have been using this area of the park for sledding?
Would the danger have been open and obvious in the daylight and without the snow, asked Justice Pfeifer?
The statute talks about the character of the individual using the park, not about the recreational property, commented Justice O’Donnell. So if the statute says the owner owes no duty to a recreational user, wouldn’t it be up to the legislature, not the Court, to create any exceptions? How can the Court find a duty, given the way the statute is written?
Was the Court being asked to place a duty on the City to have sifted through the dirt to make sure there was nothing hazardous in it, asked the Chief?
If you are not asking the Court to impose a duty, Justice Pfeifer asked plaintiff’s counsel, then what are you basing your claim on? (answer—the general duty imposed under the law of premises liability not to create hazards or dangerous conditions)
Is the statutory definition of premises limited to recreational premises, asked Justice Lanzinger? (no, said the city’s lawyer, it is much broader than that.)
Transformability of Recreational Premises
Did the city turn a portion of the park into a temporary dump site, asked Chief Justice O’Connor? If property or some portion of it is transformed from a recreational area to some other use, how does the statute apply then? What if the area was abandoned as a recreational area and transformed into a dump site? Doesn’t a recreational user have to be on recreational property?
Lots of things in a park have no recreational value, commented Justice French. What if a recreational user were injured on a piece of equipment, like a backhoe?
Did the city abandon the recreational aspect of this piece of the property when it decided to store its trash where kids went sledding, asked Justice O’Neill? Is there nothing the city can do to abandon the recreational nature of this park?
Three different appeals courts have said introduction of man-made hazards can change the character of recreational premises, and all have referenced the Miller case. Is there some reason the Court should reject these views, asked Justice O’Donnell? (answer from the city’s lawyer—the legislature has come up with a straight, broad, no duty rule. And Miller only instructs on how to determine what a recreational user is—which isn’t contested in this case).
Wasn’t this particular area transformed into storage space for a landfill, asked Justice Pfeifer? Even with snow on it, would it have been obvious to young people that it was a temporary dump site?
How it Looks from the Bleachers
To Professor Bettman
The justices pounded relentlessly on the city’s lawyer—I think more than they might have had they not had a room full of high school students as an audience in this off-site court session. After all the plaintiff was about the age of the audience members when he suffered this horrific injury. Still, this statute is a very broad no duty statute, and this Court is not, in the words of Justice O’Donnell “exceptors or policy makers.” And the legislature clearly established a broad immunity to encourage property owners to open up their land without fee to recreational users, and without having to worry about keeping the premises safe. Plaintiff’s counsel conceded that if the statute applies, they lose. But it is also well within the Court’s common law power in the area of premises liability and in statutory interpretation to hold that only improvements that enhance the recreational value and that serve a legitimate recreational purpose are entitled to immunity, which does not include trash and debris. Personally, I like that argument. And after some reluctance at first, clearly a number of the justices began to warm up to it, but I don’t think a majority will. I think in the end a majority will go with the City on this, and perhaps urge the legislature to modify the statute as other jurisdictions have done. I see this case as close, and not unanimous. I should add that even if the plaintiff does win the appeal, he is a far way from winning the case. There is a large assumption of the risk aspect to the case.
To Student Contributor Katlin Rust.
Katlin disagrees with me on this one. Here’s her take Counsel for the City really got hammered… At the beginning, the Court appeared fairly skeptical of Pauley’s proposition. Justice O’Donnell in particular disliked the idea of taking on the General Assembly’s job. As argument progressed the Justices—first the Chief, and then Justices O’Neill, Pfeifer, and O’Donnell– began to distance themselves from the game, set, and match concept that once the injured party was deemed a recreational user, that ended the matter. It appears as though Justice Lanzinger was not swayed – stating ‘you’re saying owners have a responsibility to remove hazards, which is making the premise safe, which is what the statute says you don’t have to do.’ To which Pauley responded with a narrow definition of premise (which doesn’t include trash and debris). In rebuttal Pauley provided a perfectly acceptable rationale for adopting his proposition – and it appears the Court will likely follow his invitation. The definition of premise is broad, but not broad enough to cover trash and debris. The city is claiming immunity not on the basis of the statutory definition of premise and its relationship with the statute but rather the expansion of “premise” created in Miller. Pauley directly asked the Court to limit Miller. By doing so, the Court could place a definite limit on immunity – which Justice O’Neill seemed concerned about – without adopting the role of the General Assembly.