Howell v. Buck Creek State Park , 144 Ohio App. 3d 227 ( 2001 )

I respectfully dissent.

The legal question to be addressed is whether Buck Creek State Park or the Ohio Department of Natural Resources ("ODNR") is to some degree liable for the injuries sustained by the Howell family, the Scofield family and others who stayed at the park overnight. ODNR asserts that no liability exists due to the operation of R.C. 1533.18 and 1533.181, commonly known as the Recreational User Statute.

R.C. 1533.18(B) defines "recreational user" as follows:

"Recreational user" means 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 thereof, to enter upon premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits.

R.C. 1533.181 reads:

(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.

In construing and applying these statutes, we are guided by case law from the Supreme Court of Ohio. In Miller v. Dayton (1989),42 Ohio St. 3d 113, the Supreme Court directed in paragraph one of the syllabus:

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. (Light v. Ohio University [1986], 28 Ohio St. 3d 66, 28 OBR 165, 502 N.E.2d 611; Loyer v Buchholz [1988], 38 Ohio St. 3d 65, 526 N.E.2d 300; Fryberger v. Lake Cable Recreation Assn., Inc. [1988], 40 Ohio St. 3d 349, 533 N.E.2d 738; Sorrell v. Ohio Dept. of Natural Resources [1988], 40 Ohio St. 3d 141, 532 N.E.2d 722, construed.)

In the Miller case, a softball player was injured while sliding into second base at the thirteenth national police softball tournament. The tournament was held in a Dayton city park, but no part of the entrance fee paid by softball teams went to the city. Further, the city was not a sponsor or an organizer of the tournament.

The difference between Kettering Field in Dayton and Buck Creek State Park is noticeable. Buck Creek State Park includes in its basic services the providing of cabins and other services for a fee. Money is paid directly to a government entity or its agents for use of the cabins and other services. The parties who were injured when the catwalk collapsed had all spent the two previous nights in rental cabins for which they had paid a fee or a fee had been paid on their behalf.

Further, in Huth v. State (1980), 64 Ohio St. 2d 143, the Supreme Court found a husband and wife who had paid a fee to enter and use a trailer site at Mohican State Park were not recreational users under R.C.1533.18(B). The Supreme Court distinguished the facts therein from the facts in Moss v. Dept. of Natural Resources (1980), 62 Ohio St. 2d 138. In Moss, the Supreme Court found that the plaintiffs, in purchasing gas and food and in renting a canoe, had not paid a fee to enter the parks at issue and, therefore, were recreational users. However, in Huth, the plaintiffs had paid a fee to enter the trailer site and could not have brought the items they purchased or rented (the trailer and electrical hookup) and still have made use of the park facilities. Huth at 145. The Supreme Court concluded that the plaintiffs were not recreational users because they had paid an entrance or admittance fee. Id.

The same analysis can be applied to the facts in the case at bar. The plaintiffs here paid a fee to rent cabins at the park. Their purpose in being at the park was a family outing, planned in advance, which included the reserving of two cabins. The parties would not have been at the park but for the renting of the cabins. Obviously, the plaintiffs could not have brought the items they rented (the cabins) to the park. The plaintiffs clearly paid an admittance fee for use of the cabins. As such, they are not deemed recreational users under R.C. 1533.18(B).

Many of ODNR's parks offer a wide variety of services for food and lodging. Full service lodges are provided. Rental cabins are available. Golf courses which can be played for a fee are on the park grounds. Recreation is a big business, both as administered by ODNR and as administered by private entities.

No one would seriously suggest that a Holiday Inn which provides a swimming pool should be immune from liability to swimmers merely because the Holiday Inn charges no separate fee for the use of the pool. To the same extent, a state park which provides the same array of services is not immune merely because it does not charge for some of the recreational activities it offers.

We note the words of R.C. 1533.181(B) that "[d]ivision (A) of this section applies to the owner, lessee, or occupant of privately owned, nonresidential premises * * *." The Supreme Court of Ohio has construed division (B) to allow immunity for land owned by governmental entities. See Sorrell v. Ohio Dept. of Natural Resources (1988), 40 Ohio St. 3d 141, and Moss, supra. However, the Supreme Court of Ohio has not extended its construction of R.C. 1533.181(B) to the point of rendering the phrase "nonresidential premises" meaningless. To the extent state parks provide overnight lodging, they are residential premises.

The Howells, the Scofields, their families and friends paid for lodging at Buck Creek State Park. They were still on the premises before the scheduled check-out time. Buck Creek State Park and ODNR accepted payment for the use of the lodging and thereby gave up the right to treat the families and friends as recreational users at least for the period of time for which the families and friends had paid for the use of the rental cabins.

Since the majority of this panel chooses to provide immunity for Buck Creek State Park and ODNR, I respectfully dissent.