Pauley v. Circleville , 2012 Ohio 2378 ( 2012 )

[Cite as Pauley v. Circleville, 2012-Ohio-2378.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
JEREMY PAULEY, et al.,
:
Plaintiffs-Appellants,
: Case No. 10CA31
vs. :
CITY OF CIRCLEVILLE, et al., : DECISION AND JUDGMENT
ENTRY
Defendants-Appellees. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANTS: W. Craig Bashein, Bashein & Bashein Co., L.P.A., Terminal
Tower, 35th Floor, 50 Public Square, Cleveland, Ohio
44113, and Paul W. Flowers, Paul W. Flowers Co., L.P.A.,
Terminal Tower, 35th Floor, 50 Public Square, Cleveland,
Ohio 44113, and George R. Oryshkewych, 5566 Pearl Road,
Parma, Ohio 44129
COUNSEL FOR APPELLEES: Patrick J. Deininger, Law Office of Douglas J. May, 625
Eden Park Drive, Suite 510, Cincinnati, Ohio 45202, and
Robert Lynch, Kathleen M. Gaurente & Associates, 6150
Oak Tree Boulevard, Suite 450, Independence, Ohio
44131
_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 5-23-12
PER CURIAM.
{¶ 1} This is an appeal from a Pickaway County Common Pleas Court summary judgment
in favor of the City of Circleville, defendant below and appellee herein.
{¶ 2} Jeremy and Christine Pauley, plaintiffs below and appellants herein, raise the
PICKAWAY, 10CA31 2
following assignment of error for review:
“THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, BY
GRANTING SUMMARY JUDGMENT AGAINST
PLAINTIFF[S]-APPELLANTS.”
{¶ 3} On January 24, 2007, eighteen-year-old Jeremy Pauley tragically was rendered a
quadriplegic while sledding with friends at Barthelmas park. He and his mother filed a
negligence complaint and alleged that appellee “failed to fulfill [its] duty of inspecting the park
and removing the physical defects which posed a hazard to the public. [Appellee] had further
failed to warn the citizens using the park of the physical defects which were known, or should have
been known, to be threatening their safety.” Appellants alleged that “[t]he waste and debris
which had been left on the grounds surrounding the public buildings created an inherently
dangerous situation which no user of the park could have anticipated and thus substantially altered
the nature and characteristic of the public property.”
{¶ 4} On June 1, 2010, appellee requested summary judgment and argued that: (1) the
recreational user statute relieves it of liability for Jeremy’s injury; (2) Jeremy could not identify the
unsafe condition that caused his injury; (3) it is entitled to political subdivision immunity under
R.C. Chapter 2744; and (4) the assumption of the risk doctrine bars appellants’ claims.
{¶ 5} Appellants opposed appellee’s summary judgment motion and argued, in part, that
the recreational user statute does not apply when the premises contain manmade mounds of
construction debris that are not consistent with the recreational nature of the premises.
{¶ 6} In his deposition,1 Jeremy stated that although he had previously visited the park, he
1
The parties attached partial depositions to their respective filings, but the record contains nothing to indicate that
the parties officially filed the full depositions. Because neither party has objected to the partial depositions attached to the
filings, we consider them.
PICKAWAY, 10CA31 3
had never participated in snow sledding at the park before the day of the accident. He stated that
after he “hit an immovable object," he went numb.
{¶ 7} Kevin Baisden, Jeremy’s friend who went sledding with him, stated that when he
first approached Jeremy after the accident, Baisden observed that the area was snow-covered.
Thus, he did not notice any debris or anything that Jeremy may have hit. Baisden stated that he
watched Jeremy go down the hill2 and when asked if it looked like Jeremy struck something,
Baisden stated: “Not really. I mean not even on the videotape, it didn’t, I mean, that I recall. It
didn’t look like he hit something. It just looked like he went and just stopped toward the bottom
of the hill. I mean, yeah, there were sticks and stuff there. I meant there–there was nothing to
stop him stop him. [sic]” Baisden stated that he went back to the park after the accident and
discovered that “there was a railroad tie—well, at least something that looked like a railroad tie.”
{¶ 8} Circleville City employee Philip S. Riffle stated that appellee decided to place dirt
piles at the park when it started to run out of room at the storage facility. He explained that the
city used the dirt “for various things, backfill material. It was topsoil. Any areas that, like we do
digging in, or we use it in various locations throughout the town. We use a lot of it there on the
site, at the park for reseeding purposes.”3
{¶ 9} Dane Patterson, Jr., another city employee, stated that appellee obtained the dirt from
2
The "hill" mentioned here and throughout the opinion was described at oral argument as a mound of dirt
approximately fifteen feet tall with a diameter of approximately twenty feet. This structure or object is also referred to as a
"mound," a "pile" and a "dirt pile."
3
Riffle, when asked about the purpose of the dirt pile, stated that it is also used for backfill for other areas of town:
"Well, we'll dig out old curbs, pour new curbs, so you'll need topsoil to put back in the curb and reseed. You know, like, storm
sewer repairs, sometimes we make large holes, and we usually just haul off a lot of the junk material and put the good topsoil
back in."
PICKAWAY, 10CA31 4
a Wal-Mart construction site. Like Riffle, Patterson also explained that appellee ran out of room
at its storage facility, is was decided to store the dirt at the park.
{¶ 10} On August 23, 2010, the trial court awarded appellee summary judgment. The
court determined that no genuine issues of material fact remained as to whether appellee is entitled
to recreational user immunity. This appeal followed.
{¶ 11} In their sole assignment of error, appellants assert that the trial court improperly
entered summary judgment in appellee’s favor. They contend that the trial court wrongly
determined that appellee is entitled to immunity under the recreational user statute, R.C. 1533.181.
I
STANDARD OF REVIEW
{¶ 12} Appellate courts conduct a de novo review of trial court summary judgment
decisions. E.g., Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Accordingly, an appellate court must independently review the record to determine if summary
judgment is appropriate and need not defer to the trial court’s decision. See Brown v. Scioto Bd.
of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio
App.3d 409, 411-12, 599 N.E.2d 786 (1991). Thus, to determine whether a trial court properly
granted a summary judgment motion, an appellate court must review the Civ.R. 56 summary
judgment standard, as well as the applicable law.
{¶ 13} Civ. R. 56(C) provides, in relevant part, as follows:
* * * Summary judgment shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence in
the pending case, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party
PICKAWAY, 10CA31 5
is entitled to judgment as a matter of law. No evidence or stipulation may be
considered except as stated in this rule. A summary judgment shall not be
rendered unless it appears from the evidence or stipulation, and only from the
evidence or stipulation, that reasonable minds can come to but one conclusion and
that conclusion is adverse to the party against whom the motion for summary
judgment is made, that party being entitled to have the evidence or stipulation
construed most strongly in the party’s favor.
{¶ 14} Thus, pursuant to Civ.R. 56, a trial court may not award summary judgment unless
the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come
to but one conclusion, and after viewing such evidence most strongly in favor of the nonmoving
party, that conclusion is adverse to the party against whom the motion for summary judgment is
made. See, e.g., Vahila v. Hall, 77 Ohio St.3d 421, 429-30, 674 N.E.2d 1164 (1997).
II
RECREATIONAL USER IMMUNITY
{¶ 15} Appellants assert that the trial court wrongly determined that appellee is entitled to
immunity under the recreational user statute. Although appellants admit that Jeremy was a
“recreational user,” appellants assert that appellee is not entitled to immunity under the statute
when the cause of Jeremy’s injury (i.e., the alleged railroad tie) had no relation to the recreational
nature of the premises. They further argue that appellee’s storage of the dirt mounds on the park
premises changed the nature of the premises and put the premises outside the protection of the
recreational user immunity statute.
{¶ 16} Immunity issues ordinarily present questions of law that an appellate court reviews
independently and without deference to the trial court. See Conley v. Shearer, 64 Ohio St.3d 284,
PICKAWAY, 10CA31 6
292, 595 N.E.2d 862 (1992), quoting Roe v. Hamilton Cty. Dept. Of Human Serv., 53 Ohio
App.3d 120, 126, 560 N.E.2d 238 (1988) (citation omitted) (“‘Whether immunity may be invoked
is a purely legal issue, properly determined by the court prior to trial, and preferable on a motion
for summary judgment.’”); see, also, Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873
N.E.2d 878, ¶21 (stating that whether political subdivision entitled to immunity under R.C.
Chapter 2744 is a question of law); see, also, Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541,
2006-Ohio-6208, 857 N.E.2d 573, ¶14 (stating that issue of personal immunity under R.C. 9.86
presents question of law); Greenwald v. Shayne, Franklin App. No. 09AP-599, 2010-Ohio- 413,
¶4 (stating that whether party entitled to arbitral immunity is a question of law); Cook v.
Cincinnati, 103 Ohio App.3d 80, 85, 658 N.E.2d 814 (1995) (stating that whether qualified
immunity applies is a question of law). Thus, whether a premises owner is entitled to recreational
user immunity is a question of law.4
{¶ 17} The recreational user statute, R.C. 1533.181, states:
(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.
(B) Division (A) of this section applies to the owner, lessee, or occupant of
privately owned, nonresidential premises, whether or not the premises are kept
open for public use and whether or not the owner, lessee, or occupant denies entry
to certain individuals.
4
Although we were unable to locate a case that specifically sets forth the standard of review that applies to
recreational user immunity, we observe that most of the cases cited in this opinion appear to use a de novo standard of review
without expressly stating so.
PICKAWAY, 10CA31 7
R.C. 1533.181.
{¶ 18} R.C. 1533.181 applies to “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. 1533.18(A). The Ohio Supreme Court has further construed the statute to apply to state and
municipal property. See LiCause v. City of Canton, 42 Ohio St.3d 109, 111-112, 537 N.E.2d
1298 (1989), citing Moss v. Dept. of Natural Resources, 62 Ohio St.2d 138, 404 N.E.2d 742(1980), and McCord v. Division of Parks & Rec., 54 Ohio St.2d 72, 375 N.E.2d 50 (1978).
{¶ 19} R.C. 1533.18(B) defines a “recreational user” as follows:
[A] person to whom permission has been granted, without the
payment of a fee or consideration to the owner, lessee, or occupant
of premises, other than a fee or consideration paid to the state or any
agency of the state, or a lease payment or fee paid to the owner of
privately owned lands, to enter upon premises to hunt, fish, trap,
camp, hike, or swim, or to operate a snowmobile, all-purpose
vehicle, or four-wheel drive motor vehicle, or to engage in other
recreational pursuits.
Thus, if a person qualifies as a recreational user, the premises owner has no duty to the recreational
user to keep the premises safe. Ryll v. Columbus Fireworks Display Co., Inc., 95 Ohio St.3d 467,
2002-Ohio-2584, 769 N.E.2d 372, ¶15; Estate of Finley v. Cleveland Metroparks, 189 Ohio
App.3d 139, 152, 2010-Ohio-4013, 937 N.E.2d 645, ¶54; accord Marrek v. Cleveland Metroparks
Bd. of Com’rs, 9 Ohio St.3d 194, 198, 459 N.E.2d 873 (1984).
PICKAWAY, 10CA31 8
{¶ 20} In the case at bar, appellants concede in their reply brief that “there is no dispute that
* * * [Jeremy] qualified as a ‘recreational user.’” Therefore, appellee is entitled to recreational
user immunity. Appellants nevertheless assert that even though Jeremy qualified as a recreational
user, the recreational user statute does not apply when the premises owner creates a hazardous
condition on the premises. Appellants request, in essence, that we read an exception into the
statute when none exists. We decline to do so.
{¶ 21} The Eighth District Court of Appeals has rejected any argument that the
recreational user statute contains an exception from immunity when a dangerous condition exists
on the premises, Milliff v. Cleveland Metroparks Sys., Cuyahoga App. No. 52315 (June 4, 1987),
and we do as well.5 In Milliff, the plaintiff suffered injuries when she collided with a rock barrier
that was used to block access to a washed out area of the park. The plaintiff argued that the
recreational user statute did not protect the defendant from liability when the defendant
affirmatively created a dangerous condition. The appellate court rejected the plaintiff’s argument
and explained:
“ * * * This court has already determined that the creation of hazardous conditions
does not change the determinative factor, i.e., whether the plaintiff was a
recreational user.
It is clear that appellant did not pay a fee or consideration for admission or
entrance to the Metropark. Appellant testified that she entered the Metropark to
take a ‘casual, leisurely bicycle’ ride. We conclude that a bicycle ride is a
recreational pursuit within the meaning of R.C. 1533.18(B).
Appellant’s status was one of a recreational user and as a result the
Metroparks owed her no duty to keep the premises safe. * * * Further, we hold that
5
Some Court of Claims decisions also have reached this same conclusion. Shockey v. Ohio Dept. of Natural
Resources, Ohio Court of Claims No. 2004-09509-AD, 2005-Ohio-641, ¶11 (“Even if defendant’s conduct would be
characterized as ‘affirmative creation of hazard,’ it still has immunity from liability under the recreational user statute.”); Meiser
v. Ohio Dept. of Natural Resources, Ohio Court of Claims No. 2003-10392-AD, 2004-Ohio-2097.
PICKAWAY, 10CA31 9
the recreational users’ statute does not contemplate a distinction between what
appellant terms as passive and active negligence. The statute protects all owners
of land who fall within it from all acts of negligence. Its application simply turns
on the status of the plaintiff.”
Milliff (citations omitted); see, also, Erbs v. Cleveland Metroparks Sys., Cuyahoga App. No.
53247 (Dec. 24, 1987).
{¶ 22} The court reached the same conclusion in Look v. Cleveland Metroparks Sys., 48
Ohio App.3d 135, 137, 548 N.E.2d 966 (1988). In Look, the plaintiff suffered injuries when a
wood plank in a footbridge collapsed, causing him to fall into a ravine. The plaintiff asserted that
the defendant failed to properly maintain the bridge. The court rejected the plaintiff’s argument
that the recreational user statute did not apply when the defendant created a dangerous condition.
The court explained:
“* * * R.C. 1533.181 makes no distinction between active and passive
negligence. The creation of a hazardous condition does not change the
determinative factor of [the plaintiff]’s status as a recreational user. As such,
Metroparks owed no duty to [the plaintiff] to keep the footbridge safe.”
(Citations omitted).
{¶ 23} In Estate of Finley v. Cleveland Metroparks Sys., 189 Ohio App.3d 139,
2010-Ohio-4013, 937 N.E.2d 645, Finley and his wife’s motorcycle collided with a tree that had
fallen into the roadway of a park. Finley suffered injuries and his wife died. Finley and his
wife’s estate later filed a negligence action against the city and the park. The city and the park
subsequently sought summary judgment. The trial court denied their summary judgment
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motions, and the appellate court reversed the trial court’s judgment. The appellate court held that
the recreational user statute provided the park6 with immunity. The court determined that the
Finleys were recreational users when the evidence indicated that they were enjoying a leisurely
ride through the park when the accident occurred.
{¶ 24} In the present case, appellants have admitted that Jeremy was at the park for
sledding and that he was a recreational user. There is no dispute that Jeremy was using the mound
for purely recreational purposes. Thus, because he was a recreational user, appellee owed him no
duty to keep the premises safe. The statute provides blanket immunity for injuries that occur to a
recreational user on the premises. Here, the use of the mound for a recreational purpose did not
change the essential character of the park.
{¶ 25} When defining who qualifies as a recreational user, the statute focuses upon the
character of the property and the use to which it is put. Miller v. Dayton, 42 Ohio St.3d 113, 537
N.E.2d 1294 (1989), paragraph one of the syllabus. As the Miller court explained: “In
determining whether a person is a recreational user under R.C. 1533.18(B), the analysis should
focus on the character of the property upon which the injury occurs and the type of activities for
which the property is held open to the public.” Id. If the property’s essential character is
recreational, then a user of that property will ordinarily be a recreational user. Id. at 114-115. In
seeking to define recreational premises, the Miller court explained:
“Generally speaking, recreational premises include elements such as land,
water, trees, grass, and other vegetation. But recreational premises will often have
such features as walks, fences and other improvements. The significant query is
whether such improvements change the character of the premises and put the
6
The appellate court determined that the plaintiffs’ claims against the city were time-barred and, thus, did not enter
any holding regarding the city’s immunity.
PICKAWAY, 10CA31 11
property outside the protection of the recreational-user statute. To consider the
question from a different perspective: Are the improvements and man-made
structures consistent with the purpose envisioned by the legislature in its grant of
immunity? In other words, are the premises (viewed as a whole) those which
users enter upon ‘* * * to hunt, fish, trap, camp, hike, swim, or engage in other
recreational pursuits?”
Id. at 114-115.
{¶ 26} The parties also argue the applicability of Ryll v. Columbus Fireworks Display Co.,
Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372. Appellants suggest that under the
Ryll logic, the recreational user statute does not bar their claims. In Ryll, the court determined
that the recreational user statute did not bar an injured party’s claim when the injury occurred, not
as a result of a condition on the premises, but as a result of flying shrapnel from a fireworks
display. Ryll is inapposite to the case sub judice. Here, Jeremy’s injury did not occur from a
flying object. Instead, his injury resulted from some condition, whether a railroad tie or some
other object, that existed on the premises. Thus, appellants’ assertion that Ryll removes Jeremy’s
injury from the recreational user statute is unavailing. While the instant case is undeniably tragic,
we cannot disregard the law in order to allow appellants’ claims to proceed.
{¶ 27} Accordingly, based upon the foregoing reasons, we overrule appellants’ assignment
of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
ABELE, P.J., dissenting
{¶ 28} I respectfully dissent. In this instance, I do not believe that the recreational user
statute provides the premises owner with immunity from liability for an injury that occurred to a
user as a result of the premises owner’s active creation of a hazard that had absolutely nothing to
PICKAWAY, 10CA31 12
do with the recreational nature of the premises.
{¶ 29} Although appellants concede that Jeremy was a recreational user, thus potentially
foreclosing their ability to argue that the addition of the dirt mounds changed the character of the
property, I believe that Miller is not necessarily as limited as the majority suggests. Miller speaks
in terms of defining a recreational user by examining the character of the property, yet it also
speaks of the premises being protected under the recreational user statute. The court stated: “To
qualify for recreational-user immunity, property need not be completely natural, but its essential
character should fit within the intent of the statute.” Id. at 114. The court further defined
recreational premises and explained:
“Generally speaking, recreational premises include elements such as land,
water, trees, grass, and other vegetation. But recreational premises will often have
such features as walks, fences and other improvements. The significant query is
whether such improvements change the character of the premises and put the
property outside the protection of the recreational-user statute. To consider the
question from a different perspective: Are the improvements and man-made
structures consistent with the purpose envisioned by the legislature in its grant of
immunity? In other words, are the premises (viewed as a whole) those which
users enter upon ‘* * * to hunt, fish, trap, camp, hike, swim, or engage in other
recreational pursuits?”
Id. at 114-115.
{¶ 30} The court then examined prior cases that explained what types of activities
constitute “other recreational pursuits.” The court then noted a caveat to the cases defining
recreational pursuits and stated:
“The existence of statutory immunity does not depend upon the specific
activity pursued by the plaintiff at the time of the plaintiff's injury. Rather, the
inquiry should focus on the nature and scope of activity for which the premises are
held open to the public. The goal is to determine the character of the premises. If
the premises qualify as being open to the public for recreational activity, the statute
does not require a distinction to be made between plaintiffs depending upon the
activity in which each was engaged at the time of injury. For example, we
PICKAWAY, 10CA31 13
recognize immunity to the owner of a park (which qualifies as recreational
premises), whether the injury is to one who is jogging in the park, tinkering with a
model airplane or reading poetry to satisfy a school homework assignment. Thus
we attach no significance to the fact that Miller’s injury may have occurred during a
highly competitive softball tournament. The essential character of Dayton’s
Kettering Field is that of premises held open to the plaintiff, without fee, for
recreational purposes.”
Id. at 115 (emphasis added).
{¶ 31} The Miller court applied the foregoing principles and determined that premises do
not lose recreational user immunity simply “because (1) the park includes a softball field with
dugouts, fences, base plates and similar manmade structures * * *.” Id. at 115. The court
reasoned that because the manmade structures enhanced the recreational nature of the premises,
the plaintiff, a user of those premises, was a recreational user.
{¶ 32} I believe that Miller not only defines who qualifies as a recreational user, but also
defines the type of property that falls within the definition of premises within the recreational user
statute.
{¶ 33} In Huffman v. Willoughby, Lake App. No. 2007-L-040, 2007-Ohio-7120, the court
applied the Miller principles and affirmed the trial court’s decision to deny the city’s motion to
dismiss the complaint. In Huffman, the complaint alleged that the plaintiffs drowned while
rafting down a river toward a dam. They asserted that the dam was built for purposes that the dam
no longer serves and has not served for quite some time. The city filed a motion to dismiss the
complaint. In opposition to the city’s motion, the plaintiffs argued that the city’s placement of a
lowhead dam in the river changed the nature of the river such that the recreational user statute did
not apply. The trial court agreed that the construction of the dam changed the character of the part
of the river where the dam was located. The trial court determined that the dam was not
PICKAWAY, 10CA31 14
constructed to encourage the recreational use of this part of the river. Id. at ¶9. Instead, the court
found that the dam was inherently dangerous and was not suitable for recreational use.
{¶ 34} On appeal, the court framed the issue as whether the face of the complaint showed
that the recreational user statute barred the plaintiffs’ claims. The appellate court looked to the
complaint and concluded that it failed to show that the decedents had permission to enter the area
where the dam was located. The court therefore determined that the city was not entitled to a
dismissal based upon the recreational user statute. The court further noted that the complaint
alleged that the premises were inherently dangerous and exposed any user to the risk of imminent
death. It thus concluded that the plaintiffs “were entitled to the reasonable inference that the dam
was not installed for recreational pursuits.” Id. at ¶49.
{¶ 35} I believe that an application of Miller and Huffman results in the conclusion that in
the case sub judice appellee is not entitled to recreational user immunity. Here, appellee added an
unnatural structure to the park premises–the dirt mounds. Appellee’s stated purpose in placing
the dirt mounds on the park premises was because it had no space to store the dirt at its storage
facility. Appellee has not suggested that it added the dirt mounds to enhance the recreational
nature of the property. Thus, I believe that the addition of the dirt mounds transformed the
character of that part of the park premises from recreational to storage and maintenance.7
7
One case that went before the Ohio Supreme Court involved similar facts. See Sorrel v. Ohio Dept. Of Natural
Resources, Division of Parks and Rec., 40 Ohio St.3d 141, 532 N.E.2d 722 (1988). In Sorrel, the Ohio Department of Natural
Resources (ODNR) engaged in dredging operations on a lake. ODNR apparently left a mound of dirt on the surface of the
lake. The plaintiff suffered injuries when the snowmobile he was riding struck the dirt mound. The plaintiff subsequently
sued ODNR. On appeal to the supreme court, the court determined that the plaintiff was a recreational user and that ODNR
was therefore entitled to immunity.
Interestingly, the plaintiff had requested the Ohio Supreme Court to consider “whether the statutory immunity would
apply where injuries are caused by artificial and willfully created hazards, such as the mound of dredge material herein.” Id. at
PICKAWAY, 10CA31 15
{¶ 36} Furthermore, granting appellee immunity under these circumstances does not
appear consistent with the goal of the recreational user statute.
“Statutory immunity for landowners in this situation promotes the
development and availability of property for recreational use and is consistent with
the public policy reflected in R.C. 1533.181. According to Moss, supra, the
purpose of the statute is ‘”to encourage owners of premises suitable for recreational
pursuits to open their land to public use without worry about liability.”’ Id., 62
Ohio St.2d at 142, 404 N.E.2d 742[, quoting Moss, (Feb. 6, 1979), Franklin App.
Nos. 78AP-578, 78AP-579].”
Marrek v. Cleveland Metroparks Bd. of Com’rs, 9 Ohio St.3d 194, 198, 459 N.E.2d 873 (1984).
To allow immunity when a premises owner chooses to use part of recreational premises as a dirt
storage facility does not fulfill the purpose of encouraging a recreational premises owner to open
the land to the public for recreational use without fear of liability. The purpose of the statute is
not to encourage landowners to use their what-would-otherwise-be recreational property as a
storage facility and then be shielded behind the recreational user statute when a person suffers
injury from the addition of this non-recreational aspect of the premises.
{¶ 37} I recognize that appellee states in its brief that appellants “cannot show that the dirt
mound changed the character of Barthelmas Park.” Appellee does not elaborate on this
142, fn.1. The supreme court, however, found that the plaintiff failed to raise this argument in the lower courts and thus,
declined to consider this argument. Instead, the court considered and rejected the plaintiff’s argument that the recreational
user statute did not apply because he was snowmobiling during a prohibited time period and thus using the park without
permission. The court explained: “The immunity granted by R.C. 1533.181 to owners, lessees, or occupants of premises
who hold such premises open for gratuitous recreational use by the general public can not be lost where a person violates state
park rules and regulations while using a park for permitted, gratuitous recreation purposes.” Id. at 144-145.
PICKAWAY, 10CA31 16
statement. I believe, however, that the evidence the parties submitted during the summary
judgment proceedings does indeed show that the dirt mounds changed the character of the park.
Appellee’s employees stated that the dirt mounds were placed on the park premises for storage
purposes. No one stated that the dirt mounds were placed on the park premises for sledding or
other recreational pursuits. Thus, I believe that the evidence supports a conclusion that the
addition of the dirt mounds changed the essential character of the premises where Jeremy suffered
his injuries.
{¶ 38} Additionally, as the party moving for summary judgment, appellee bore the burden
to point to evidence in the record to establish the absence of a material fact regarding whether the
addition of the dirt mounds changed the essential character of the park. See Dresher v. Burt, 75
Ohio St.3d 280, 293, 662 N.E.2d 264 (1996); Ray v. Wal-Mart, Washington App. No. 08CA41,
2009-Ohio-4542, 17. As the Dresher court explained:
“[A] party seeking summary judgment, on the ground that the nonmoving
party cannot prove its case, bears the initial burden of informing the trial court of
the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on the essential
element(s) of the nonmoving party’s claims. The moving party cannot discharge
its initial burden under Civ.R. 56 simply by making a conclusory assertion that the
nonmoving party has no evidence to prove its case. Rather, the moving party must
be able to specifically point to some evidence of the type listed in Civ.R. 56(C)
which affirmatively demonstrates that the nonmoving party has no evidence to
support the nonmoving party’s claims. If the moving party fails to satisfy its
PICKAWAY, 10CA31 17
initial burden, the motion for summary judgment must be denied.”
Id. In the case at bar, appellee has not pointed to any evidence to show the absence of a material
fact regarding whether the dirt mounds changed the essential character of the premises. Instead,
appellee has offered a conclusory assertion that appellants cannot demonstrate this fact.
Appellee’s conclusory assertion is not sufficient to warrant summary judgment.
{¶ 39} Furthermore, I disagree with the majority's view of Milliff, Look, and Finley. In
those cases, the alleged negligently created hazard did not change the essential character of the
premises. In the case at bar, however, the hazard–the dirt mounds–did change the character of the
premises.
{¶ 40} Therefore, based upon the foregoing reasons, I believe that the trial court
improperly determined that appellee is entitled to recreational user immunity and, thus, wrongly
granted appellee summary judgment on this basis. Accordingly, I respectfully dissent.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellants the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
Harsha, J. & McFarland, J.: Concur in Judgment & Opinion
Abele, P.J.: Dissents with Dissenting Opinion
For the Court
PICKAWAY, 10CA31 18
BY:
Peter B. Abele
Presiding Judge
BY:
William H. Harsha, Judge
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.