Hurt at a Public Park? The Recreational-User Statute Has Limits (Combs v. ODNR)

Published May 19, 2016 · Ohio Supreme Court

Richard Combs spent his birthday night fishing at Indian Lake State Park, which is free to enter, and early the next morning walked across a causeway to an island with better fishing. A state employee was cutting weeds along the shoreline with a boom mower, a tractor-mounted mower on an extending arm. One of the blades struck the riprap, the rock placed along the waterline to stop erosion, and flung a stone that hit Mr. Combs in the eye and face, causing serious injuries.

When he sued the Ohio Department of Natural Resources in the Court of Claims, the state argued it owed him no duty at all. Ohio's recreational-user statute, it said, gives a landowner absolute immunity for any injury to anyone who enters free of charge to fish, hike, hunt or camp. The Court of Claims agreed and threw the case out.

On April 19, 2016, the Supreme Court of Ohio disagreed. In Combs v. Ohio Dept. of Natural Resources, 146 Ohio St.3d 271, 2016-Ohio-1565, a 4-3 majority held that the statute immunizes landowners only for injuries arising from the condition of the premises. It does not excuse a landowner's employees from negligently injuring people with equipment. The case goes back to the Court of Claims for trial.

What the recreational-user statute does

R.C. 1533.181(A) 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," gives any assurance by granting permission that the premises are safe, or assumes liability for injury caused by the act of another recreational user. A "recreational user" is someone allowed onto the land without paying a fee to the owner to hunt, fish, camp, hike, swim or engage in other recreational pursuits. The statute was written in 1963 to encourage private landowners to open their land, but the Court held decades ago that it also protects the state and local governments.

As I explained in this 2013 post on the Pauley decision, the statute has been applied without mercy to conditions of the land: holes, cables strung across paths, mounds of dirt under snow, undertows, softball fields. If you are a free user of a park and you are hurt by something that is part of the park, the owner generally owes you nothing, even if the owner created the hazard.

Where the Court drew the line

The majority opinion, by Justice O'Donnell, read the statute closely. It eliminates three things: the duty to keep the premises safe, any implied assurance of safety, and liability for other users' acts. The General Assembly "could have provided that a landowner owes no duty whatsoever to any recreational user," the Court observed, but it did not. Every prior Supreme Court case applying the statute involved an injury from the condition of the land or the act of another user.

The Court then turned to the common law. Even a trespasser, once the landowner knows he is there, is owed ordinary care to avoid injury from the "active negligence" of the owner or its employees. The recreational-user statute does not expressly abolish that duty, and statutes that depart from the common law are read no more broadly than their words require. Courts in California, Maine, Utah and Iowa have reached the same conclusion under similar statutes, refusing to immunize a government driver who hit a cyclist, a tractor operator who injured a rider, or a landowner who negligently supervised a minor using a wood splitter.

Applied here: Mr. Combs was not hurt by a defect in Indian Lake State Park. He was hurt by a park employee's alleged negligent operation of a mower. The statute, the Court held, "is limited in scope and does not apply to the alleged negligence of a maintenance worker operating a boom mower."

The dissent, and why the margin matters

Three justices would have ruled for the state. Their reasoning was that the rock was part of the land, that the statute has been held to abolish premises liability entirely for recreational users, and that creating an exception for employee conduct is a policy choice for the legislature. The majority's answer was that this was never a premises case to begin with: the claim is about how an employee operated a machine, not about what the land was like.

The 4-3 split means the line the Court drew is a real one. Future cases will test whether an injury was caused by the "condition of the premises" or by someone's active conduct. That characterization will often decide whether a claim exists.

What this means for people hurt in Dayton-area parks

The Miami Valley is full of free public recreation: Five Rivers MetroParks, the Great Miami River bike trails, township parks, Caesar Creek and other state areas. Injuries there generally fall into two categories.

Injuries from the land itself. A washed-out section of trail, an unmarked drop-off, a broken bench, a hole on a ballfield. Under Pauley and the cases before it, these claims are very difficult against a public owner, and Combs does not change that.

Injuries from what employees or contractors do. A mower or trimmer throwing debris, a maintenance vehicle or utility cart striking a walker or cyclist on a trail, a tree-trimming crew dropping a limb, chemicals sprayed on people, a gate or barrier swung into a user. After Combs, the recreational-user statute is not a defense to these claims. The owner's employees owe ordinary care, and the owner is responsible for their negligence like any employer.

Two cautions. First, for city, county, township and park-district property, Ohio's separate political-subdivision immunity law, R.C. Chapter 2744, still applies and has its own exceptions and defenses, which we analyze in our claims against the government practice. Second, claims against the state itself go to the Court of Claims in Columbus, a court without juries and with its own procedures, as I have described in posts about a prison football injury and a $2 million settlement for a state-employee crash.

Preserving the evidence

Equipment-injury cases at parks are won on details: which employee was operating what machine, what training he had, whether the mower had a deflector or guard, whether the area was supposed to be closed or flagged during mowing, and whether the operator saw the injured person before the incident. Maintenance logs, work orders, training records and incident reports exist, and a prompt public-records request or preservation letter secures them. Photographs of the equipment and the scene should be taken within days.

What this means for you

If you were hurt at a park, trail, lake or other public recreation area, do not assume the "recreational user" label ends the discussion. The question after Combs is whether you were injured by the land or by what someone did on it. Our premises liability and personal injury practices sort that out and identify the right defendant and forum.