Mitchell v. Blue Ash , 181 Ohio App. 3d 804 ( 2009 )

{¶ 1} Plaintiff-appellant, Justin Mitchell, appeals the summary judgment entered by the Hamilton County Court of Common Pleas in favor of defendant-appellee, the city of Blue Ash, in a personal-injury action.

{¶ 2} On July 4, 2005, Mitchell went to a city park to watch a free fireworks display. A portion of the park property was enclosed by a fence, which had a gate that opened and closed by rolling across the fence.

{¶ 3} Shortly after dusk, Mitchell was standing with his hand on top of the fence. A park employee opened the gate, and Mitchell's finger was severely injured when it was caught under the rolling mechanism.

{¶ 4} Mitchell sued the city for its alleged negligence. The trial court granted the city's motion for summary judgment, holding that it was entitled to immunity under the recreational-user statute, R.C. 1533.181.

{¶ 5} In a single assignment of error, Mitchell now argues that the trial court erred in granting summary judgment in favor of the city.

{¶ 6} Under Civ. R. 56(C), a motion for summary judgment may be granted only when no genuine issue of material fact remains to be litigated, the moving party is entitled to judgment as a matter of law, and it appears from the evidence that reasonable minds can come to but one conclusion, and with the evidence construed most strongly in favor of the nonmoving party, that conclusion is adverse to that party.¹ This court reviews the granting of summary judgment de novo.²

{¶ 7} R.C. 1533.181(A)(1) provides that "[n]o owner, lessee, or occupant of premises * * * [o]wes any duty to a recreational user to keep the premises safe for entry or use." Under R.C. 1533.18(B), the term "recreational user" is defined as "a person to whom permission has been granted, without the payment of a fee or consideration to the owner * * * to enter upon premises * * * to engage in * * * recreational pursuits." The term "premises" is defined in R.C. 1533.18(A) as "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 or firm, or organization, including any buildings or structures thereon."

{¶ 8} In the case at bar, it was undisputed that Mitchell had entered the park without payment of a fee to engage in a recreational pursuit and that the gate was a part of the park premises under R.C. 1533.18(B). But Mitchell argues that the city was not entitled to immunity in this case because the negligence of the city's employee had contributed to the injury.

{¶ 9} In support of his argument, Mitchell cites the Ohio Supreme Court's decision in Ryll v. ColumbusFireworks Display Co., Inc.³ In Ryll, the plaintiffs decedent had gone to a fireworks display at a park owned by the city of Reynoldsburg and had been killed by shrapnel from a fireworks shell.⁴ In holding that Reynoldsburg was not immune, the court stated: "The cause of the injury in this case had nothing to do with ``premises' as defined in R.C. 1533.18(A). The cause of the injury was shrapnel from fireworks, which is not part of ``privately-owned lands, ways, waters, and * * * buildings and structures thereon.'"⁵

{¶ 10} Thus, the basis of the Ryll decision was not that the negligence of a city employee or other person had contributed to the injury, but rather that the injury had not arisen from part of the premises. TheRyll court did not express an intention to abrogate prior cases in which a government entity had been accorded immunity despite the alleged negligence of an employee.⁶ And in cases decided by the Ohio Court of Claims since theRyll decision, that court has held the state government immune under the recreational-user statute even where the plaintiff had alleged negligence on the part of public employees.⁷

{¶ 11} Although the dissent offers inflammatory rhetoric in response to what it deems to be a harsh result, it does not offer any authority for reversing the decision of the trial court. The fact remains that the plaintiff inRyll was permitted to seek recovery because he was not harmed by any portion of the premises. The same cannot be said of Mitchell.

{¶ 12} Accordingly, Ryll does not control the instant case. The uncontroverted evidence established that Mitchell was a recreational user and that his injuries arose from the park premises. We overrule the assignment of error and affirm the judgment of the trial court.

Judgment affirmed.

DINKELACKER, J., concurs.

PAINTER, J., dissents.

¹ State ex rel. Howard v. Ferreri (1994),70 Ohio St.3d 587, 589, 639 N.E.2d 1189.

² Jorg v. Cincinnati Black United Front.153 Ohio App.3d 258, 2003-Ohio-3668, 792 N.E.2d 781, 116.

³ 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372.

⁴ Id. at ¶ 4.

⁵ Id. at ¶ 15, quoting a prior version of R.C. 1533.18(A).

⁶ See, e.g., McCord v. Ohio Div. of Parks Recreation (1978), 54 Ohio St.2d 72, 74, 375 N.E.2d 50 (recreational-user immunity applicable where alleged negligence of lifeguard led to child's drowning in a public lake).

⁷ See Gudliauskas v. Lakefront State Park, Ct. of CI. No. 2004-08464, 2005-Ohio-5598 (allegedly negligent driving on part of park ranger causing injury to skater); andMeiser v. Ohio Dept. of Natural Resources, Ct. of CI. No. 2003-10392-AD, 2004-Ohio-2097 (damage to automobile caused by public employee's allegedly negligent use of an electric weed trimmer).