On July 17, 2011, Richard Combs was celebrating his birthday at Indian Lake State Park, in Lakeview, Ohio. The park is open to the public without an admission charge.
He spent the night fishing, then early the next morning walked to Pew Island, a better fishing spot. As Richard walked across the causeway to Pew Island, an Ohio Department of Natural Resources (“ODNR”) employee, Jerry Leeth, was using a boom mower to cut weeds and brush along the lakeshore.
In a split second of bad timing, one of the mower blades hit the riprap – the stone placed along the waterline to prevent erosion. The mower threw a rock that struck Richard in the eye and face and caused serious injuries.
Richard ultimately filed a lawsuit against ODNR in the Court of Claims, alleging that Leeth negligently operated the boom mower and caused his injury. But the court granted ODNR’s motion for summary judgment, finding that because Richard was a recreational user, ODNR had no duty to keep the park safe for his entry or use, and his negligence claim was barred as a matter of law.
In making its ruling, the Court of Claims was referring to the recreational user law, enacted in 1963 by the Ohio legislature “to encourage owners of premises suitable for recreational pursuits to open their land to public use without fear of liability.” The law says, in part, that no owner of premises owes any duty to a recreational user to keep the premises safe for entry or use.
It also says that the owner does not extend any assurance to a recreational user – through the act of giving permission – that the premises are safe for entry or use, nor does the owner assume responsibility for or incur liability for any injury to person or property caused by any act of a recreational user.
But when the court of appeals reviewed the case, it reversed the Court of Claims, explaining that although the recreational user law abolished the property owner’s duty to keep the premises safe for entry and use by recreational users, it provides immunity only for injuries caused by the defective condition of the premises. After that ruling, Richard’s case came before us – the Ohio Supreme Court.
The question before us was, what duty – if any – does a landowner owe to recreational users for alleged acts of negligence by employees occurring on the premises?
Over the years, in cases that have dealt with these issues, our court has determined the duty owed by a landowner to those who entered the premises depended on the status of the entrant. Was the entrant an invitee, a licensee or a trespasser?
Under the common law rules established by those court decisions, a landowner owed an invitee the duty to “exercise ordinary care to render the premises reasonably safe,” but owed “no duty to a trespasser or licensee upon the land except to refrain from wanton, willful or reckless misconduct which is likely to injure him.”
But when the legislature enacted the recreational user law, it essentially amended those rules. In a 1988 case, our court concluded that, after passage of the recreational user law, it no longer mattered if the injured party was a trespasser, licensee, or invitee. In lieu of those distinctions, the duty owed depended on “whether the person using the property qualifies as a recreational user,” as defined by the law.
The immunity afforded by the recreational user law is not absolute. Rather, it limits the liability of landowners for injuries to recreational users in three ways. It provides that no landowner owes any duty to a recreational user to keep the premises safe for entry or use; it states that granting permission to enter the property is not an assurance that the premises are safe; and it provides that a landowner is not liable for injuries caused by the act of a recreational user.
As Justice Terrence O’Donnell pointed out in writing the majority opinion, the legislature “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.”
In most of the prior cases that have dealt with the recreational user law, the injuries have arisen from the condition of the premises – from the lands, the waters, or the buildings.
One notable exception was a 2002 case in which a spectator attending a fireworks show at a public park was killed by shrapnel from a fireworks shell. We determined that the landowner was not immune from liability because the law immunizes owners from injuries that arise from a defect in the premises, but since the shrapnel was not a defect in the premises, immunity did not apply.
The recreational user law does not expressly abolish a landowner’s duty to exercise reasonable care to avoid negligently injuring those on the premises. Accordingly, we concluded that the recreational user law does not limit a landowner’s liability for a negligently inflicted injury that does not arise from the condition of the premises.
Our interpretation of the law accords with decisions of other state supreme courts that have declined to expand recreational user immunity beyond injuries arising from the condition of the premises.
In this case, the injuries to Richard did not arise from a defective condition of the premises but rather from alleged negligent mowing when the boom mower struck the riprap. The recreational user law, therefore, does not apply in these circumstances.
Thus – by a four-to-three vote – we affirmed the judgment of the court of appeals. ODNR has a duty to conduct mowing safely and can be held liable for the negligence of its employees if it breaches that duty. Our decision doesn’t mean that Richard has won his claim; instead, it means that he can proceed with his claim if he can establish that negligence.
Paul Pfeifer is an associate justice of the Supreme Court of Ohio.
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