Oral Argument Preview: Recreational User Immunity for Injury from Flying Rock? Combs v. Ohio Department of Natural Resources, Division of Parks & Recreation.

Update: On April 19, 2016, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of this argument here.

On November 17, 2015, the Supreme Court of Ohio will hear oral argument in the case of Combs v. Ohio Department of Natural Resources, Division of Parks & Recreation, 2014-1891. At issue in the case is whether Ohio’s Recreational User Statute provides immunity to a park owner when a recreational user is struck by a flying rock in the course of a park employee’s maintenance of the premises.

Case Background

On July 28, 2011, Richard Combs (Combs) and a friend visited Indian Lake State Park to go fishing. That same morning, Jerry Leeth (Leeth), an employee of the Ohio Department of Natural Resources (ODNR), was mowing the overgrown grass with a boom mower near the edge of the lake. When the mower’s blade hit the riprap—a line of rocks near the shoreline used to prevent erosion—a piece of a rock was launched approximately 100 yards in the air, striking Combs in the eye. As a result, Combs suffered injuries and sued ODNR in the Court of Claims, alleging that Leeth negligently operated the mower.  Thus Combs’ suit was based on employee negligence, not premises liability.

Based on R.C. 1533.181, Ohio’s Recreational User Statute, the trial court granted ODNR’S motion for summary judgment, holding that ODNR owed no duty to Combs because he was a recreational user when he was injured on ODNR’s premises.

In a unanimous opinion authored by Judge William Klatt, joined by Judges Susan Brown and Julia Dorrian, the Tenth District reversed and remanded the decision of the Court of Claims, finding that the Recreational User Statute does not bar Combs’ negligence claim. While Combs conceded that he was a recreational user, the Tenth District held the ODNR was not entitled to immunity because the injury from the flying rock, like the injury from the flying shrapnel in  Ryll v. Columbus Fireworks Display Co., Inc., did not arise from a defect in the premises.

Key Precedent

R.C. 1533.18 ((A) “Premises” means all privately owned lands, ways, and waters, and any buildings and structures thereon, and all privately owned and state-owned lands, ways, and waters leased to a private person, firm, or organization, including any buildings and structures thereon.)

R.C. 1533.181 (Recreational User Statute)(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.)

Pauley v. Circleville, 2013-Ohio-4541(Property owner not liable to recreational user injured while sledding, even if property contains a hazardous condition created by property owner.)

Ryll v. Columbus Fireworks Display Co., Inc. 95 Ohio St. 3d 467 (2002)(the Recreational User Statute immunizes property owners from injuries that arise from a defect in the premises. Shrapnel from an exploding fireworks display shell not a defect in the premises; no immunity for death from that flying shrapnel.)

ODNR’s Argument

ODNR asserts that the Tenth District’s decision should be reversed because it defies the plain text of the Recreational User Statute, the legislative intent, and related case law.

The Recreational User Statute immunizes a landowner from suit if (1) the injured party was a recreational user; (2) the injury occurred on the premises, and (3) the recreational user did not pay to use the premises. Since Combs himself did not dispute that he was a recreational user and did not pay a fee, ODNR contends that the plain text of the statute directs a finding of immunity because the only element in dispute, that the injury occur on the “premises,” is also present. According to ODNR, the park fit the definition of “premises” in R.C. 1533.18(A), and therefore, the fact that Combs was injured on the park premises indicates that this element has also been met.

Next, ODNR claims that the Recreational User Statute covers all claims of negligence, both active and passive, so ODNR does not lose its immunity simply because Combs’ injury was caused by Leeth’s alleged active negligence. By absolving a landowner of any duty to a recreational user, the legislative intent was to protect landowners from all negligence claims.

ODNR also asserts that Tenth District’s decision conflicts with the legislative intent behind the Recreational User Statute because it discourages landowners from performing maintenance on their properties. If landowners are only immune from harm arising from the condition of the premises and not from the maintenance of the premises, landowners will be discouraged from maintaining or opening their property to the public.

Finally, ODNR addresses Ryll by noting that it provided a unique exception to landowner immunity when the harm—while occurring on the premises—does not result from a part of the premises, but rather, from a foreign object. Here, the riprap was not a foreign object like the firework mortar shell, but a part of the premises. Therefore, the exception in Ryll-which ODNR also emphasizes was only a plurality decision–is inapplicable.

Combs’ Argument

Combs argues that the Tenth District was correct in holding that ODNR is not immune from liability under the Recreational User Statute. While Combs concedes that he was a recreational user, he contends that the projectile rock was not a condition of the premises, so ODNR is not immune under the Recreational User Statute. That statute only provides immunity when the victim is injured by the premises themselves. In this case, the injury to Combs was caused by the negligence of the operator of the boom mower, not by any defect in the park premises.

While the Recreational User Statute provides immunity for premises liability claims, that immunity does not extend to active negligence claims.

Relying primarily on Ryll, Combs argues that immunity attaches only to the conditions of the premises. Since Combs’ injury arose from an act of vehicular negligence by ODNR’s employee, which is not a defect in the premises, there is no basis for immunity under the Recreational User Statute.

ODNR’s Proposed Proposition of Law

R.C. 1533.181(A) immunizes landowners from liability for injuries to recreational users arising from the condition and maintenance of the land.

Amicus In Support of Combs

The Ohio Association of Justice (OAJ) is an association of Ohio attorneys who advocate for victims-rights through efforts to secure a safe and clean environment, safe products, safe workplace, and quality healthcare.

OAJ filed an amicus brief in support of Combs, asserting that the Recreational User Statute only immunizes a tortfeasor when the recreational user is injured by the condition of the premises. Like Combs, OAJ asserts that the Recreational User Statute does not provide immunity when the harm is caused by something other than a condition of the premises. In supporting this conclusion, OAJ notes that the highest courts in California, Iowa, Maine, and Utah, which have  similar recreational user statutes, have come to this conclusion.

Moreover, OAJ asserts that the Recreational User Statute does not categorically immunize landowners from all negligence claims, rather, it only relieves them of the “duty… to keep the premises safe for entry or use.” According to OAJ, the language “for entry or use” limits the immunity to that which relates to the condition of the premises. While Pauley holds that there is immunity for a negligent act of premises maintenance if the resulting injury is caused by the condition of the premises, there is no immunity for negligent maintenance of the premises where, as here, the injury is not caused by a condition of the premises.

It is OAJ’s position that “in light of Pauley, R.C. 1533.181 already immunizes too much malfeasance,” and that “adopting any of the State’s expansive interpretations of R.C. 1533.181 would further encourage hidden dangers and prevent remedies for victims of negligence and recklessness,” and would ill serve the public.

 OAJ reiterates that since Combs’ injury did not result from a defect in the condition of the premises, the Recreational User Statute does not protect ODNR.

Student Contributor: Danielle List

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