On April 19, 2016, the Supreme Court of Ohio handed down a merit decision in Combs v. Ohio Dept. of Natural Resources, Div. of Parks & Recreation, 2016-Ohio-1565. In a splintered 4-3 opinion written by Justice O’Donnell, joined in full only by Justice Pfeifer, the court held there is no immunity for injuries to a recreational user caused by a rock thrown by the allegedly negligent operation of a boom mower in a state park open to the public free of charge. Chief Justice O’Connor and Justice O’Neill concurred in judgment only. Justice Kennedy dissented, joined by Justices Lanzinger and French. The case was argued November 17, 2015.
Richard Combs was fishing with a friend at Indian Lake State Park, which is open to the public free of charge. As he was walking across a causeway to find a better fishing spot, an employee of the Ohio Department of Natural Resources (“ODNR”), was using a boom mower to cut weeds and brush along the shore line. One of the mower blades hit the riprap-a line of rocks near the shoreline used to prevent erosion-which threw a rock that hit Combs in the eye and face, causing serious injuries.
Combs sued ODNR in the Court of Claims, alleging that his injuries were caused by the negligent operation of the boom mower. The Court of Claims granted ODNR’s motion for summary judgment, finding that ODNR owed no duty to Combs because he was a recreational user when he was injured on ODNR’s premises, and ODNR owed no duty to keep the park safe for entry or use.
The Tenth District reversed and remanded the decision of the Court of Claims, finding that the Recreational User Statute did not bar Combs’ negligence claim, because Combs’ suit was based on employee negligence, not premises liability.
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.”)
Carrel v. Allied Prods. Corp., 78 Ohio St.3d 284 (1997) (in the absence of language clearly showing the intention to supersede the common law, the existing common law is not affected by the statute, but continues in full force.)
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(Duty owed depends on whether person using the property is a recreational user. Landowner not liable to sled rider for injury caused by railroad-tie-like object embedded in mound of dirt covered in snow.)
Scott v. Wright, 486 N.W.2d 40 (Iowa, 1992) (landowner could be liable for the negligent operation of a tractor, because “[n]othing in the language of [Iowa’s recreational use statute] suggests a legislative intent to immunize all negligent acts of landowners, their agents, or employees.”)
Young v. Salt Lake City Corp., 876 P.2d 376 (Utah 1994) (explaining, in a case involving the collision of a maintenance vehicle with a bicyclist, “The operative language of the Act does not purport to relieve landowners of their separate duty to conduct themselves in a reasonably safe manner while on the premises.”)
Dickinson v. Clark, 767 A.2d 303 (Me., 2001) (the Maine recreational use statute does not apply to a claim alleging negligent supervision and instruction on the use of a wood splitter.)
Klein v. United States, 235 P.3d 42 (Cal. 2010) (The statutory phrase “keep the premises safe” is an apt description of the property-based duties underlying premises liability, a liability category that does not include vehicular negligence.)
Under the recreational user statute, there is no liability for injuries caused by a defective condition of the property. The disagreement in this case is simple and basic. The majority believes the plaintiff’s injury wasn’t caused by a defective condition of the property. It was caused by the alleged negligence of an employee in the operation of a boom mower, and thus isn’t protected under the statute. The dissenters believe an injury caused by a rock was clearly caused by a defective condition of the premises, and is thus covered by the statute.
Position of the Parties
Justice O’Donnell usually begins his opinions by setting forth the position of the parties. So, here they are:
The recreational user statute gives absolute immunity to landowners who open their land free of charge to recreational users for any injury that occurs on the premises. R.C. 1533.181 is thus a total no-duty rule. Further, the legislature could not have intended to discourage landowners from performing the maintenance necessary to make the premises safer and more enjoyable to recreational users. Ryall is easily distinguishable—in that case the injury was caused by flying shrapnel, clearly a foreign object brought onto the premises. In this case the injury was caused by a rock which was clearly a part of the premises.
Even though he was a recreational user, the immunity of that statute applies only to injuries that result from a condition of the premises. His were not; they were caused by the negligence of an employee that occurred on the premises.
In short, the majority agreed with Combs’ position, while the dissenters agreed with ODNR.
A Short Primer on Premises Liability
As all of my former tort students well know, the common law duty owned by a landowner to those on the premises depends on whether the entrant was an invitee, licensee, or lowly trespasser. Justice O’Donnell reviews the duty owed to each at common law.
Ohio’s Recreational User Statute
The Recreational User Statute, enacted in 1963, changes some aspects of the common law trichotomy by providing immunity to landowners who open their premises free of charge to the public. Instead of the common law distinctions, any duty owed depends on whether the person using the property is a recreational user. Under the express language of the statute, the landowner owes no duty to a recreational user to keep the premises safe for entry or use. The purpose of the statute is to encourage this practice. And in this case, it was undisputed that Combs was a recreational user.
But the majority in this case rejects the idea that the recreational user statute provides absolute immunity, noting that the legislature did not say that a landowner owes no duty whatsoever to any recreational user in any circumstance.
Is Injury From Defect in Premises or Not?
Under existing jurisprudence in this area of law (and there is a lot of it), there is a distinction between injures arising from conditions of or defects in the premises themselves (as in Pauley), and those that don’t (as in Ryall). There is immunity for the former category, but not the latter. Actually, all the justices agree with this distinction, but those in the majority find the injury in this case falls in the latter category, while the dissenters find this falls in the former.
Sister Supreme Courts
Justice O’Donnell cites decisions from California, Maine, Iowa, and Utah which did not extend recreational user immunity beyond injuries arising from conditions of the premises. Justice Kennedy tries to distinguish them all in her dissent, arguing that in all of those cases, the injuries resulted from something other than the land, such as by some kind of vehicle.
The majority here holds that R.C. 1533.181 is limited in scope and does not apply to the alleged negligence of an employee using a boom mower.
“In this case, the injuries to Combs did not arise from a defective condition of the premises but rather from alleged negligent mowing when the boom mower struck the riprap. R.C. 1533.181 therefore does not apply in these circumstances,” O’Donnell wrote.
This isn’t an outright win for Combs, though. He still must prove negligence, which may not be so easy.
Justice Kennedy wrote the dissent, joined by Justices Lanzinger and French. Kennedy, author of Pauley, would find that the recreational user statute totally abrogates the common law premises-liability doctrine, and thus would uphold summary judgment in favor of ODNR. The injury here was caused by a rock, which is clearly part of the land, and thus is covered by the statute. The fact that the rock was thrown by a mower is of no consequence. Ryall is inapposite. A rock just isn’t the same thing as flying shrapnel from a fireworks display. A rock is part of the premises.
I incorrectly called this for ODNR. Like Justice Pfeifer, I dislike tort immunity. But honestly, I think the recreational user statute was meant to cover this situation. If the mower itself had caused the injury I might feel differently, but a flying rock does not seem the same to me as flying shrapnel. It seems like part of the premises.
Regardless of the win on the legal issue, this case is far from a sure win for Combs. Just because a mower throws a rock doesn’t mean there was negligence on anyone’s part. The blog will continue to follow the case in our “what happened on remand” section.