Update: On April 19, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
“What would be an example of an injury that occurs in a state park by a visitor to the state park that would be compensable?” Justice Pfeifer to the Chief Deputy Solicitor
On November 17, 2015, the Supreme Court of Ohio heard 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.
Richard Combs and a friend visited Indian Lake State Park to go fishing. That same morning, Jerry 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.
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, 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, because Combs’ suit was based on employee negligence, not premises liability.
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.
Read the oral argument preview of the case here.
Key Statutes and 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.)
McCord v. Division of Parks and Recreation 54 Ohio Dt.2d (1978) (Recreational user immunity applies to both private property owners and publicly owned land)
Moss v. Dep’t of Natural Res., 62 Ohio St. 2d 138 (1980)( The purpose of the immunity is “to encourage owners of premises suitable for recreational pursuits to open their land to public use without worrying about liability.”)
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.)
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.)
At Oral Argument
Michael J. Hendershot, Chief Deputy Solicitor, Office of the Ohio Attorney General, Columbus, for Appellant ODNR
Arthur C. Graves, Arthur C. Graves Co., L.P.A. Columbus, for Appellee Richard Combs
The text of the Recreational User Statute, its history and overarching purpose and this court’s precedent, all compel reversal of the court of appeals decision and reinstatement of the Court of Claims judgment in this case.
The text of the statute creates a categorical no duty rule as to landowners, and makes no distinction between activities and conditions. Both are encompassed within the broad no duty rule of the statute. And maintenance is a covered activity. The statute turns on and off based on the status of the entrant, and whether the entrant is a recreational user or not. It does not focus on the landowner. Conditions and maintenance are core landowner activities and both are shielded by the statute. Maintenance allows a line to be drawn around a significant body of cases that have an obvious connection to the premises. Maintenance is an activity one would expect and encourage any landowner—public or private—to do to their land. The maintenance activity in this case—mowing—was to make the land safer for the recreational users of the park. So long as there is a connection to the premises, no duty is owed. The only time the rule falls away is when there is reckless or willful conduct, or where, as in Ryall, there is no connection to the premises. That is not the case here.
The mere fact that there is some kind of connection to premises doesn’t trigger the immunity of the statute –the statute talks about keeping the premises safe for entry and the premises themselves being safe. Combs was not injured by unsafe premises, as in Pauley. The premises were perfectly safe when Combs entered them. Nothing was unsafe until improper force was applied to the premises. It was only the application of the negligent force of the mower that caused the injury here. This case is more like Ryall than Pauley. This is not a defect in the premises case. In Pauley the court refused to add a restriction to the statute. Likewise, here the court should not add an expansion to the statute by holding that there is no liability for negligent maintenance of the premises. The state is asking for such an expansion to the statute; the court should not allow this.
What Was On Their Minds
A Bunch of Hypotheticals
Would negligently constructing a bridge over a river be included, asked Justice O’Donnell? If someone fell into the river and drowned?
How is a negligently constructed bridge making the land safer, asked Chief Justice O’Connor?
What if a state park has teeter totters to attract children who come to the park, and they are made of wood that rots, and kids use it and it breaks, and someone is injured, asked Justice Pfeifer? No recovery? No duty in that hypothetical situation if it is connected to the property, asked Chief Justice O’Connor? Conduct has to be reckless in order not to be covered?
What if mowers circle the kids, and rocks are thrown (negligently, he later added) and the kids are injured, asked Justice O’Neill? Should the court just say, stuff happens?
Limits of the No Duty Rule
Is any negligent act immune as long as it happens on the premises of recreational property, asked Justice O’Neill? How expansive is the court being asked to be? Does a rock striking a person have anything to do with the premises, or the design of the premises? If the statute creates a no duty rule, what exception to the statute should the court incorporate?
Is negligence in construction immune under the statute, asked Justice O’Donnell? Is there a distinction between a condition of the premises and negligence, either in construction or in maintenance? Should there be liability for negligent maintenance of the premises?
Even if Combs didn’t face immunity, wouldn’t he still have to show the mower was negligent, asked Justice Pfeifer? (answer: yes)
Ryall and Pauley
Was Ryall wrongly decided, asked Justice French? Are we only talking about entry?
In Ryall, the court said that the statute did not state that a recreational user is owed no duty, observed Justice O’Neill.
Pauley wasn’t a maintenance issue, was it, asked Justice O’Donnell?
Obligations During Maintenance
How should the state have handled things when they were mowing, asked Chief Justice O’Connor? By putting up signs saying no fishing while the grass is being cut?
Wasn’t Combs injured by a stone thrown by the mower, asked Justice Lanzinger? Wasn’t the stone part of the riprap on the shoreline?
How it Looks From the Bleachers
To Professor Bettman
Like a win for the state, even though I found the Chief Deputy Solicitor’s argument overblown. The fact is that the whole point of this statute is to encourage landowners to open their land free of charge to recreational users without fear of liability. And surely maintaining the premises is part of that no-duty equation. It certainly doesn’t make sense to have landowners let their places run to seed because of fear of liability arising out of maintenance.
I do not think this case is like Ryall, (authored by Justice Pfeifer) which I think was correctly decided. As between Ryall and Pauley, I think Pauley was the more dubious case, and actually presented a more difficult issue than this case—there the court rejected an argument that there should be no immunity for an accident caused by something (a railroad tie hidden in a mound of snow) that added nothing to the recreational character of the premises. A mower hitting a stone that was part of the landscape used to prevent erosion seems totally related to the premises. Still, Justice Pfeifer had a point when he asked Mr. Hendershot for an example of an injury which would be compensable under this statute, according to his theory of the case.
At the end of oral argument, Justice Pfeifer good naturedly chided Mr. Hendershot for complimenting the three justices he thought were on his side, searching for a fourth. I think he will get that fourth with Justice Kennedy, who authored Pauley. Justice Pfeifer of course, is well known for his dislike of immunities. He may dissent, as he usually does in this cases, or he but may go along with the majority in this case, while still expressing his dislike of immunities. Justices O’Neill undoubtedly will dissent.
I also might add, as Justice Pfeifer asked, even without immunity, it isn’t at all clear how the boom mower operator was even negligent in this case.
To Student Contributor Danielle List
Counsel for ODNR began by arguing that the Tenth District’s decision should be overruled on account of the (1) text of the Recreational Use Statute; (2) precedential cases like Pauley, McCord, and Moss; (3) history of the Recreational Use Statute as compared with its corresponding section in the Restatement 2nd of Torts; and (4) the overarching statutory purpose. Following this outlay, ODNR gave a rather persuasive argument as to how the Recreational User Statute does not distinguish between conditions and maintenance of the premises. Using the aptly described “core landowner activity” as the limiting principle, ODNR seemed to, at least facially, distinguish Ryll while still adhering to Pauley.
However, ODNR received quite a bit of pushback when it came to scenarios of negligent construction as a form of maintenance. Justices O’Neill and Pfeifer, in particular, expressed discontent with the Recreational User Statute encompassing increasingly attenuated connections to the premises. There was also some disagreement as to what sort of incentives such decision would create. While Chief Justice O’Connor suggested that immunizing landowners under these circumstances would result in a lack of diligence among landowners in constructing and maintaining their properties, ODNR posited that failing to immunize such landowners would instead serve to disincentive maintaining the property at all.
In a somewhat confusing introduction, counsel for Combs argued that the Recreational User Statute also covers reckless conduct and that counsel for ODNR was suggesting Pauley was wrongly decided by stating otherwise. While I’m not sure how Pauley can be read to extend immunity to reckless conduct or how doing so would help Combs’s case, the Court didn’t seem to have much a response. Instead, several Justices challenged Combs on whether ODNR’s actions even rose to the level of negligence in this case.
With these peripheral issues aside, counsel for Combs did circle back in order to key in on the distinction between harm caused by a defect in the condition of the premises and harm caused by an exterior force applied to the premises. However, based on Justice Lanzinger’s comment that the harm was ultimately caused by a piece of the premises (the rock), it seems such a distinction may too metaphysical, especially in a case where the harm did bear some connection to the premises.
Ultimately, I believe ODNR stands on better ground for this case. While the bench was not particularly warm to ODNR’s position, it seems that the source of many of the Justices’ reservation points was really Pauley. As counsel for ODNR observed, Pauley itself could be characterized as falling into the “failure to maintain” category. Additionally, distinguishing Pauley on the grounds of active negligence would cast cases like McCord and Moss into doubt.