Property hazards don’t disqualify immunity under Ohio’s Recreational User Statute

Peggy Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program

We often explain the Ohio Recreational User’s Statute to farmland owners because the  law provides liability protection when someone asks to hunt, fish, snowmobile or conduct other recreational activities on the farm.  As long as the landowner grants permission for the use and does not receive a fee from the recreational user, the landowner does not owe a legal duty to assure that the premises are safe for the user.  This immunity from liability encourages those who own non-residential land to open the land for recreational activities.

Landowners always have “what if” type questions when we explain this law.  Recently, the Ohio Supreme Court answered one of those “what if” questions:  what if I modify the property in some way and create a hazardous condition that causes an injury; does the Recreational User’s Statute still protect me from liability?  The Supreme Court’s response:  yes.  But the court was not in complete agreement on the issue.

The accident at the heart of the case occurred when an 18 year old boy went sledding in a park owned by the City of Circleville, Ohio.  The boy slid head first into a wooden railroad tie which the city had transported to the park from a construction site.  The city planned to temporarily store the railroad tie and other construction debris at the park because no storage space was available at its maintenance facility.  Upon hitting the railroad tie, the boy broke his neck and became paraplegic.

In its decision in the lawsuit filed by the boy, the trial court determined that the city was immune from liability because of the Recreational User’s Statute, which grants recreational immunity to governmental as well as private landowners.  The boy appealed the case to the Fourth District Court of Appeals, which affirmed the trial court’s decision.  The Ohio Supreme Court agreed to review the case.

The question before the court was whether the city’s action of placing the railroad ties in the park created an exception from the immunity provided by the Recreational User’s Statute.  The boy’s legal counsel argued that storage of the railroad ties and other construction debris in the park had changed the property’s essential character so that it was no longer a recreational property and should not fall under the protection of the Recreational User’s Statute.   A majority of the court disagreed, concluding that the city’s alleged creation of a hazard on the premises did not affect the city’s immunity.

“We cannot accept as reasonable any contention that the presence of a railroad tie in a public park changes its essential character as a recreational space,” wrote Justice Sharon Kennedy.  “Critics may claim that our decision reaches a harsh result.  However, the language of the recreational-user statute is plain; a property owner owes no duty to a recreational user to keep the property safe for entry or use.  Creating an exception to this immunity is a policy decision that comes within the purview of the General Assembly, not the courts. … [W]e will not create an exception by judicial fiat.”

Justice William O’Neill entered a dissenting opinion, joined by Justice Paul Pfeifer, who also wrote a separate dissent.   “[L]et’s be accurate here — we are not talking about a single railroad tie,” stated Justice O’Neill.  “That tie that crippled this child was part of an overall scheme of disposal of huge mounds of debris that the city had incredibly decided to place in the middle of a recreational park! Cover it with a light dressing of snow, and the perfect killing field was created. . . . [T]he city made a decision to dump huge mounds of debris into a city-owned park. When it did that, it lost its “recreational user” immunity entirely.”

In his dissent, Justice Pfeifer questioned the protection afforded by the Recreational User’s Statute.  The immunity provisions in those statutes, he stated, “provide unreasonable and unconstitutional protection to government entities that own property.”

What does the Court’s decision mean for agricultural landowners? 

While the case did not involve an agricultural property, the decision does have impact for agricultural landowners.  A few lessons from the case:

Affirmation of broad landowner immunity.  The court’s decision affirms the broad immunity afforded by Ohio’s Recreational User’s Statute.  We often hear questions such as “but what if I left my equipment out in the field?” or “but what if they fall into that hole I just dug?”   Based on the court’s decision, the landowner has no duty to make the property safe and won’t be liable for injuries caused by any “hazards” the landowner created on the property.   Remember that this immunity applies to “recreational users”– property visitors who have the landowner’s permission to engage in recreational activities such as hunting, fishing and snowmobiling on non-residential property and who haven’t paid the landowner for the recreational activity (with an exception for hunting lease payments; landowners may receive hunting lease payments and still retain recreational user immunity).

Take recreational permission seriously.   This lawsuit arose because someone suffered a serious injury.  Even with immunity protection, landowners should think twice about allowing recreational users on the property when highly dangerous situations are present.  If there’s a good chance that someone could suffer harm from the situation, avoid the potential of harm and simply don’t grant permission for people to be on the property.

Immunity comes at a cost.    While it can prevent landowner liability, the Recreational User’s Statute can’t stop a harmed party from taking the landowner to court.    The city incurred not only the costs of defending itself through three court hearings, involving attorney fees and the city’s time, but also the cost of negative publicity.  Surely, more responsible land management decisions would have cost less and kept someone from suffering harm.

The Ohio Supreme Court’s decision in Pauley v. Circleville is available here.  The Ohio Recreational User’s Statute is in Ohio Revised Code Sections 1533.18 and 1533.181.

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