Hurt in a Public Park? Why Ohio's Recreational-User Immunity Is So Hard to Beat (Pauley v. Circleville)

Published October 23, 2013 · Ohio Supreme Court

Last week the Ohio Supreme Court decided a case that every parent should know about before the first snow. In Pauley v. Circleville, 137 Ohio St.3d 212, 2013-Ohio-4541, decided October 16, 2013, the Court held that a city that dumped construction fill in a public park owed no duty to an 18-year-old who was paralyzed sledding down it. The result is harsh, the dissenting justices said so, and we are not going to pretend otherwise. But understanding why the Court ruled as it did is the only way to know what claims remain when someone is hurt in a park, on a trail, or on any other free recreational land in Ohio.

What happened

Barthelmas Park in Circleville is a free city park with ball fields, a playground, and picnic shelters. In the summer of 2006 the city accepted 150 to 200 truckloads of free topsoil from a construction site. When its maintenance yard filled up, the city dumped the rest in the park, where it formed two mounds about fifteen feet high.

On a January evening in 2007, Jeremy Pauley and friends went sledding at the park. For his last run he chose one of the dirt mounds, which already had other sled tracks on it. Partway down he hit what he described as an immovable object and went instantly numb. The next day a friend returned and found an object resembling a railroad tie embedded in the mound where Jeremy had been hurt. Jeremy's neck was broken; he is a quadriplegic.

He and his mother sued the city, alleging it had negligently, recklessly, and wantonly dumped debris in the park. The trial court granted summary judgment to the city under the recreational-user statute, the Fourth District affirmed, and the Supreme Court agreed to hear the appeal.

The recreational-user statutes

Two sections of the Revised Code control. R.C. 1533.18 defines a "recreational user" as a person who has been given permission, without paying a fee to the owner, to enter premises to hunt, fish, trap, camp, hike, swim, operate a snowmobile or similar vehicle, or engage in "other recreational pursuits." R.C. 1533.181 then provides that no owner, lessee, or occupant of premises owes any duty to a recreational user to keep the premises safe for entry or use, extends any assurance that the premises are safe, or assumes liability for injury caused by a recreational user's own acts.

The Court has long held that these statutes protect cities and the state as well as private landowners, and that sledding is a recreational pursuit. Jeremy's lawyers conceded that he was a recreational user. Their argument was different: immunity should not extend to a man-made hazard that has nothing to do with the land's recreational purpose. A city that uses a park as a dump site, they said, should not get the benefit of a law meant to encourage landowners to open their property for recreation.

What the Court held

By a 4-3 margin on the result, the Court rejected that argument. Its reasoning was textual. R.C. 1533.181(A)(1) says the owner owes "no duty" to keep the premises safe. If there is no duty, there is no liability, and the Court quoted an earlier appellate decision for the proposition that this is so "even if the property owner affirmatively created a dangerous condition." The question under the statute, the majority said, is not what the owner did but whether the injured person was a recreational user.

The Court distinguished its 2002 decision in Ryll v. Columbus Fireworks Display Co., where a spectator was killed by shrapnel from a fireworks shell at a city-sponsored show. There, the injury was not caused by a defect in the premises, so the statute did not apply. In Pauley, the railroad-tie-like object was embedded in a mound of dirt that was part of the park, so the injury came from the premises themselves. The majority acknowledged critics would call the result harsh, but said that any exception is a policy decision for the General Assembly.

Justice O'Neill, joined by Justice Pfeifer, dissented. In his view, when a property owner makes a conscious decision to use a recreational park for another purpose, such as storing construction debris, the immunity should end. Justice Pfeifer added that the statutes are overbroad and, as applied to governments, unconstitutional. Those views did not carry the day.

Why this decision hurts injured people

Pauley means that in Ohio, a person injured by a dangerous condition in a free park, on a free trail, or on free open land generally cannot recover from the owner, even when the owner created the hazard and even when the injury is catastrophic. For families of children hurt on sledding hills, ball fields, and bike paths, it is bad news, and we will not dress it up.

What paths remain

The statute is broad but it is not everything. After Pauley, these avenues still exist and must be evaluated in every park or outdoor-injury case:

• A fee was charged. The recreational-user definition requires permission "without the payment of a fee." Admission charges, rental fees, and league fees paid to the owner can take a person outside the statute. The details matter, because the statute excludes certain fees paid to the state.
• The injury did not come from the premises. Ryll survives. When the harm comes from an activity or an object brought onto the land, such as fireworks, equipment, or a vehicle, rather than from the condition of the land, the recreational-user statute does not apply. Those claims are then analyzed under the ordinary immunity rules for governments, which we outlined on our claims against the government page.
• The property is not truly recreational in character. Courts examine the essential character of the premises. Sidewalks, streets, and fully enclosed man-made structures such as gymnasiums have been held outside the statute. Our post on city pool and rec center injuries discussed a related immunity question for public buildings.
• A defective product caused the injury. A collapsing bleacher or a defective playground component may support a product-liability claim against the manufacturer, which the recreational-user statute does not reach.
• A non-owner was negligent. The statute protects the owner, lessee, and occupant of the premises. A contractor or event sponsor who created the hazard may stand in a different position.
• Wanton misconduct by employees in other contexts. Immunity is not uniform across all government functions. This year's Riffle decision, which we covered in a post on EMS wanton misconduct, shows the Court enforcing exceptions where the statute provides them.

Each of these turns on facts that must be nailed down early: whether a fee was paid and to whom, what exactly caused the injury, who owned and who controlled the land, and whether any product or third party was involved. Our premises liability page describes how we investigate these cases.

What this means for you

If you or your child was seriously hurt in a park or on other recreational land in the Dayton area, do not assume there is no case, and do not assume there is one. Pauley makes claims against the landowner very difficult when the injury came from the land itself, but the exceptions above are real, and the facts that trigger them are easy to lose if no one looks for them. Photograph the scene, keep any receipts or passes, identify witnesses, and have the situation reviewed promptly by a lawyer who understands both the recreational-user statute and government immunity.