The law that shields the state and other landowners from personal injury lawsuits caused by the condition of recreational areas does not extend to the injuries caused by negligent park employees, the Ohio Supreme Court ruled today.

The Supreme Court ruled that Ohio’s “recreational user statute” does not bar a visitor to Indian Lake State Park from suing the Ohio Department of Natural Resources (ODNR) because a park employee mowing the grass ran over a rock that shot into the man’s face causing serious injuries. In the Court’s lead opinion, Justice Terrence O’Donnell wrote the immunity protection in the law is limited to injuries caused by the defective condition of the recreational premises.

In a dissenting opinion, Justice Sharon L. Kennedy maintained that the accident was based on the condition of the premises and ODNR cannot be held liable.

Hit By Rock When Going to Fish
In July 2011, Richard Combs was celebrating his birthday at Indian Lake and was crossing a causeway to Pew Island where an ODNR employee was using a boom mover to cut weeds and brush along the lakeshore. One of the mower blades hit the riprap (stones place along the water’s edge to prevent erosion) and threw a rock that struck Combs in the eye and face. Combs filed a lawsuit in the Ohio Court of Claims alleging the employee negligently operated the mower and caused the injury.

The Court of Claims found that Combs was a recreational user and that under R.C. 1533.181, ODNR had no obligation to keep the park safe for his use. The court ruled his negligence claim was barred by the law and granted summary judgment to ODNR. Combs appealed to the Tenth District Court of Appeals, which reversed the Court of Claims. The Tenth District ruled that R.C. 1533.181, known as the recreational user statute, abolished the property owner’s duty to keep the premises safe for entry and use by recreational users. However, it provides immunity only for injuries caused by defective conditions of the grounds, the Tenth District concluded. Because Combs claimed he was injured by the negligence of a park worker and not defects to the park, the recreational user statute did not apply. ODNR appealed the decision to the Supreme Court, which agreed to hear the case.

The agency maintained the law grants landowners absolute immunity to injury claims by recreational users that occur on the premises as long as the user entered without paying a fee, and Combs did not pay a fee. Combs countered that landowners are not immune from their own negligence and he cited cases from California, Iowa, and Utah where similar recreational immunity laws were not extended to prevent lawsuits stemming from vehicle-related accidents caused by negligent landowners or employees.

Law Enacted to Encourage Recreational Land Use
Quoting the Court’s 1988 Loyer v. Buchholz decision, Justice O’Donnell explained that in 1963 the General Assembly enacted the recreational user statute “to encourage owners of premises suitable for recreational pursuits to open their land to public use without fear of liability.”

Before the statute, Ohio courts were using common law principles to determine if an injured user could sue the landowner. The common law theories varied the obligations of the landowner based on whether the person on the property was invited, there to work or on business, or was trespassing. The recreational user statute amended the common law rules and no longer made a distinction based on the status of the visitor, but instead classified all visitors who do not pay a fee to engage in activities such as hunting, fishing, camping, hiking, and swimming as recreational users.

Justice O’Donnell explained the immunity provided by the statute is not unlimited, and limits the liability of landowners in three ways: the landowner has no duty to keep the premise safe for entry; the landowner has no duty to assure users once on the property remain safe; and the landowner is not liable if a recreational user is injured by another recreational user.

“The General Assembly could have provided that a landowner owes no duty whatsoever to any recreational user or that a landowner is not liable for injury caused by the act of the landowner or its employees, but tellingly, it did not do so,” he wrote.

Prior rulings by the Court have barred lawsuits for injuries arising from the condition of the premises, Justice O’Donnell noted. He cited as an example the Court’s 2013 Pauley v. Circleville decision in which the city was not held liable for an injury that occurred when a boy on a sled hit a railroad-tie like object embedded in a snow covered mound of dirt at a public park. While not allowing a suit in that case, he explained the Court did authorize a lawsuit in the 2002 Ryll v. Columbus Fireworks Display Co., Inc. decision. In that case a spectator was injured by shrapnel from a fireworks display at a public park. Because the shrapnel was part of a firework and not part of the premises, the recreational user statute did not apply, the Court concluded.

“Accordingly, the recreational user statute does not limit a landowner’s liability for a negligently inflicted injury that does not arise from the condition of the premises,” Justice O’Donnell wrote, and “(I)n 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.”

Justice Paul E. Pfeifer joined Justice O’Donnell’s opinion.

Chief Justice Maureen O’Connor and Justice William M. O’Neill concurred in judgment only.

Dissent Maintains Injury Caused by Land
In her dissent, Justice Kennedy asserted the majority relies on four cases with facts that are different from what happened to Combs. She noted that the three cases Justice O’Donnell cited from other states did not extend immunity to the landowner were based on claims of negligence in the operation of a vehicle. She noted that two of the three cases involved the collision of a vehicle with a cyclist. In the third case, a rider was thrown from a hay wagon when the driver of the tractor lost control of the vehicle.  The fourth case involved an injury to a minor using a wood splitter, and the negligence claim in that case was based on negligent “supervision and instruction,” she observed.

“The common thread in the cases from our sister courts is that the injuries in those cases resulted from something other than the land,” she wrote.

Justice Kennedy maintained that based on the Court’s precedent the fact that the rock was thrown at Combs by the mower “is of no consequence,” and the rocks at Indian Lake are part of the premises. Unlike the Ryll case, which involved an injury from shrapnel from fireworks where the Court ruled the city could be liable, “Combs’s injury was caused by a rock that was part of the land,” which makes ODNR immune from a lawsuit, she wrote.

Justices Judith Ann Lanzinger and Judith L. French joined Justice Kennedy’s opinion.

2014-1891. Combs v. Ohio Dept. of Natural Resources, Slip Opinion No. 2016-Ohio-1565.

View oral argument video of this case.

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