On October 16, 2013, the Supreme Court of Ohio handed down a merit decision in Pauley v. Circleville, 2013-Ohio-4541 In a 5-2 decision written by Justice Kennedy, the Court held that the city was not liable for the injuries to a teenager who was sled-riding in a city park, since the city owed no duty to keep the park safe for recreational users. Chief Justice O’Connor concurred in judgment only. Justices Pfeifer and O’Neill dissented. This case was argued April 23, 2013. Read the oral argument preview here and the analysis of the oral argument here.
The City of Circleville owns Barthelmas Park, which houses various recreational facilities. There is no fee to enter the park. During the summer of 2006, the city accepted free topsoil excavated from a neighboring construction site. The topsoil was originally stored in a maintenance facility, but when that was full, the rest of the topsoil was dumped in the park, where it formed two mounds about fifteen feet high.
In January of 2007, then-eighteen year old Jeremy Pauley went sled riding in the park. As it began to grow dark, Pauley decided to try a new location for his last run of the day. One of his friends moved the car to illuminate his chosen hill, which turned out to be one of the mounds of dirt, then covered with snow. As Pauley sledded down the hill, he hit what he described as an immovable object, later thought to be a railroad tie or something like it, which was hidden by the snow. Pauley broke his neck, and is now a quadriplegic.
Pauley and his mother 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.
Recreational User Immunity and Barthelmas Park
The Court began its analysis with a close look at R.C. 1533.181, which provides immunity to owners, lessees, or occupants of premises open to the public for recreational use, free of charge, for injuries to a recreational user. In this case, Pauley conceded that he was a recreational user. And Barthelmas Park—the site of the accident– is covered by the statute. It was open to the public for recreational use, free of charge. It makes no legal difference that it was owned by the city rather than a private owner.
R.C. 1533.18(B) lists specific recreational activities that qualify as recreational use—hunting, fishing, trapping, swimming, and camping are several examples in the statute itself. Case law has added others, including sledding.
R.C. 1533.181(A) establishes a no duty rule. Is there any way around that?
The recreational user statute is a no duty rule. (Another example of a no duty rule in Ohio is the open and obvious danger doctrine). Under the express provision of R.C. 1533.181(A)(1), the city owed no duty to a recreational user to keep its premises safe for entry or use. That provision created uphill sledding for Pauley. He relied on two Supreme Court cases– Ryll v. Columbus Fireworks Display Co., Inc. and Miller v. City of Dayton–to argue that property owners should not get immunity if they modify their property in such a way that it creates a hazard without promoting or preserving the recreational character of the property, which is what he argued the city did with the mounds of dirt. He did not succeed. Justice Kennedy distinguished both cases for the majority.
Ryll v. Columbus Fireworks Display Co., Inc., 95 Ohio St. 3d 467 (2002)
A spectator who was attending a fireworks display sponsored by the city of Reynoldsburg was killed by shrapnel from a fireworks shell. In this case the Court held that the recreational user statute protects property owners from injuries arising from a defect in the premises. The spectator’s estate was allowed to recover because the Court held that shrapnel was not a defect in the premises, thus immunity did not apply. Pauley made a similar argument about the railroad tie in the mound of dirt, but the majority didn’t buy it. The majority found that the railroad tie embedded in a mound of dirt was a defect in the premises, and thus the city was entitled to immunity.
Miller v. City of Dayton, 42 Ohio St. 3d 113 (1989)
In Miller the plaintiff was injured sliding into second base during a softball tournament in a park owned by the city of Dayton. The plaintiff sought to recover for his injuries, but ultimately failed. The court extended recreational-user immunity to manmade improvements to the property.
Pauley argued that under Miller, immunity attaches for injuries caused by manmade improvements only when those improvements enhance the recreational activities on the property. The majority rejected this interpretation of Miller, finding the key question to be whether the improvements so changed the essential character of the park as to remove it from the statutory protection. In making this determination, one must look to the essential character of the property, taken as a whole. In Pauley’s case, the Court held that “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,” Kennedy wrote.
Public Policy Considerations
The majority found that to buy Pauley’s arguments would directly conflict with the purpose of the recreational use statute, which is to open land suitable for recreational activity to the public without fear of liability.
“Creating an exception to this immunity is a policy decision that comes within the purview of the General Assembly, not the courts. The General Assembly understands how to draft laws that contain exceptions, but included no exception, that can be applied in this case. And we will not create an exception by judicial fiat,”wrote Kennedy.
Justices Pfeifer and O’Neill dissented. Justice O’Neill wrote the longer dissent. Justice Pfeifer parted company with Justice O’Neill on one point—his enthusiasm for the “letter, spirit, and intent of most recreational-user statutes.” O’Neill likes the fact that such statutes encourage landowners to open their property to the public without having to worry about getting sued. Pfeifer has no such enthusiasm. But as for this case, O’Neill said this:
“ However, when, as here, a property owner converts a recreational park to a municipal dump site for construction fill and debris, there is no statute in the land that should shield that tortfeasor from accountability for such a disastrous action,” he wrote, citing (gasp!) Justice Cardozo in Palsgraf v. Long Island R.R. Co.: “the risk reasonably to be perceived defines the duty to be obeyed.” My first year torts students will loudly applaud!
When Justice O’Neill looked at the property as a whole—as Miller mandated—he did see its essential character change, to a dumpsite for dangerous debris, especially when coated with snow.
“And let’s be accurate here—we are not talking about a single railroad tie. 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,” O’Neill wrote.
He would hold that when a property owner consciously makes a decision to use its recreational premises for other purposes, there should be no immunity.
Justice Pfeifer, who of course hates every vestige of governmental immunity, would find the statutory protections unreasonable and overbroad, and with respect to governmental entities, unconstitutional.
At oral argument in this case, the majority really pounded away at the city’s lawyer—perhaps because this case was argued as part of the court’s off-site program, to a primarily teen-aged audience. The justices appeared to be warming to Pauley’s argument, but in the end, took the traditional path. As I have said many times on this blog, this Court is not a legislature-defying crowd. Justice O’Donnell said as much at argument when he said that the justices were not “exceptors or policy makers.” The public policy behind recreational-user immunity is clear. It’s to have those who open their land for recreational users not to have to worry about getting sued. I correctly called this case for the city, and predicted it would not be unanimous. (an easy call, given Justice Pfeifer’s well-known antipathy to governmental immunity. He now seems to have an ally on this point in Justice O’Neill.) Chief Justice O’Connor gave no reason for her concurrence in judgment only.