Schafer v. Ohio Dept. of Natural Resources , 2022 Ohio 1829 ( 2022 )

[Cite as Schafer v. Ohio Dept. of Natural Resources, 2022-Ohio-1829.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
James Fritz Schafer, Individually and :
as Executor of the Estate of Victoria
Schafer, :
No. 22AP-27
Plaintiff-Appellant, : (Ct. of Cl. No. 2021-00497JD)
v. : (ACCELERATED CALENDAR)
Ohio Department of Natural Resources, :
Defendant-Appellee. :
D E C I S I O N
Rendered on May 31, 2022
On brief: Kegler, Brown, Hill & Ritter, LPA, Timothy T.
Tullis, and Rebecca Roderer Price, for appellant. Argued:
Rebecca Roderer Price.
On brief: Dave Yost, Attorney General, Anne Berry Strait,
and Michelle Brizes, for appellee. Argued: Anne Berry Strait.
APPEAL from the Court of Claims of Ohio
McGRATH, J.
{¶ 1} This is an appeal by plaintiff-appellant, James Fritz Schafer, Individually and
as Executor of the Estate of Victoria Schafer, from a judgment of the Court of Claims of
Ohio granting the motion of defendant-appellee, Ohio Department of Natural Resources
("ODNR"), to dismiss appellant's complaint pursuant to Civ.R. 12(B)(6).
{¶ 2} On August 31, 2021, appellant filed a complaint against ODNR asserting
causes of action for negligence, wrongful death, and survival action. The complaint alleged
that on September 2, 2019, Victoria Schafer ("Schafer") was photographing high school
No. 22AP-27 2
students at Old Man's Cave in Hocking Hills State Park when she was struck by a "wooden
log." (Compl. at ¶ 7.) It was alleged that "[J.C.] and/or [J.B.] rolled the log over the top of
a cliff above where Victoria Schafer was standing." (Compl. at ¶ 8.) Further, the log which
hit Schafer "was stacked among other cut logs in a clearing that had been created by ODNR
and/or its contractors during a construction project." (Compl. at ¶ 9.)
{¶ 3} Appellant alleged ODNR and/or its contractors accessed the clearing using
existing trails "typically used for foot races" or trails that were created to "move * * *
construction equipment" between the clearing and the construction site. (Compl. at ¶ 10.)
According to the complaint, ODNR did not "block off" access to the clearing allowing use of
"trails * * * not part of the official park system of trails," and it failed to "mitigate * * * or
otherwise indicate that the area was restricted." (Compl. at ¶ 10, 11.) It was similarly
asserted that ODNR did not "block off * * *, mitigate * * * or otherwise indicate" that the
clearing area where the logs were stacked was restricted. (Compl. at ¶ 12.)
{¶ 4} With respect to the negligence claim, it was alleged ODNR "was negligent in
stacking and/or leaving stacked logs easily accessible to the public from the [trails], and
near the cliff above the Lower Falls area, one of the most heavily-visited areas of Old Man's
Cave." (Compl. at ¶ 15.) The complaint further asserted it was "foreseeable that the stacked
logs would be tampered with, thereby causing an injury to a park guest, like Victoria
Schafer." (Compl. at ¶ 16.)
{¶ 5} On September 28, 2021, ODNR filed a motion to dismiss the complaint
pursuant to Civ.R. 12(B)(6). In the accompanying memorandum in support, ODNR argued
that it was immune from liability under Ohio's recreational user statute, R.C. 1533.181.
ODNR alternatively argued it was immune from liability under the public duty rule (R.C.
2743.02(A)(3)(a)), and that general tort principles also precluded ODNR from liability for
the criminal acts of third parties, i.e., J.C. and J.B.
{¶ 6} On October 12, 2021, appellant filed a memorandum in opposition to ODNR's
motion to dismiss. In the memorandum, appellant agreed with ODNR that "Hocking Hills
State Park * * * is within the recreational use statute's definition of 'premises,' " R.C.
1533.18, and further agreed that Schafer "was a 'recreational user' under that statute."
(Memo. in Opp. at 3.) Appellant argued, however, "the immunity provided by the
recreational user statute is not absolute," and that the log that hit Schafer and caused her
No. 22AP-27 3
death "was not part of the land and therefore her injuries did not arise from the condition
of the premises." (Memo. in Opp. at 3-4.) Appellant further argued that the public duty
rule did not apply to this action. Finally, appellant argued that he may prove the criminal
acts of the third parties were foreseeable. On October 18, 2021, ODNR filed a reply
memorandum in support of its motion to dismiss.
{¶ 7} On December 8, 2021, the Court of Claims filed an entry granting ODNR's
motion to dismiss the complaint. In its entry of dismissal, the Court of Claims held in part:
According to the Complaint, Plaintiff suggests that Defendant
owed Schafer a duty to stack the logs, block off the paths where
the logs were stacked, and otherwise mitigate the
circumstances which led to Schafer's death. The Court
disagrees.
***
It is not disputed that Schafer was a recreational user of
Hocking Hills State Park.
Although the recreational user statute does not eliminate
Defendant's common law duty to exercise reasonable care to
avoid negligently injuring those on the premises, Plaintiff
alleges no act or omission by which Defendant negligently
injured Schafer.
Even accepting the facts alleged in the Complaint as true,
Defendant's failure to stack logs or block pathways relates to
rendering safe the conditions of the premises—a duty
Defendant did not owe to Schafer. Furthermore, the log that
struck Schafer was certainly a condition of the premises. * * *
Even if Defendant had stacked the logs or blocked off the
pathways and clearing, Schafer's death had little to do with the
safety conditions of Old Man's Cave. Although tragic, the
unfortunate actions of two other recreational users caused
Schafer's death—an action for which Defendant has no
responsibility. [J.C.] and [J.B.] finding a log, regardless of its
location and condition, is no different from them picking up
any other piece of loose forestry or rock on the premises and
throwing it over the cliff.
Plaintiff argues that he should be entitled to discovery relevant
to prove his claims, but allowing such discovery would amount
to nothing more than a fishing expedition. Even if, by a stretch
of the imagination, Defendant did breach a duty owed, the
No. 22AP-27 4
Court finds the purported negligence was not the proximate
cause of Schafer's death. * * * Plaintiff has not identified any
law or facts that suggest either a special relationship between
Defendant and Schafer or any overwhelming circumstances
which would justify imposing liability on Defendant. Plaintiff's
assertion that the existence of an administrative code rule
makes [J.C.] and [J.B.'s] act foreseeable is not well taken. The
mere fact that it can be anticipated that individuals may throw
objects over cliffs does not make Defendant's failure to stack
cut logs or block off pathways an unreasonable risk for which it
would incur liability.
***
For the reasons stated above, the Court finds that Plaintiff can
prove no set of facts entitling him to relief.
(Dec. 8, 2021 Entry of Dismissal at 3-5.)
{¶ 8} On appeal, appellant sets forth the following assignment of error for this
court's review:
1. The trial court erred in finding that Defendant-Appellee had
no liability for Victoria Schafer's death pursuant to the
recreational user statute, R.C. 1533.18(A) by deciding as
follows:
a. Victoria Schafer's death was caused by a condition of the
premises;
b. Plaintiff-Appellant alleged no act or omission by which
Defendant-Appellee negligently caused Victoria Schafer's
death; and
c. That the conduct which caused Victoria Schafer's death was
not foreseeable.
{¶ 9} Under his single assignment of error, appellant challenges the Court of
Claims' dismissal of the complaint pursuant to Civ.R. 12(B)(6). Specifically, appellant
argues the Court of Claims erred in finding ODNR had no liability under Ohio's recreational
user statute by construing the allegations in the complaint to find Schafer's death was
caused by a condition of the premises, and in finding appellant alleged no act or omission
by ODNR that negligently caused her death. Appellant also challenges the Court of Claims'
No. 22AP-27 5
determination that the alleged conduct which caused the death of Schafer was not
foreseeable.
{¶ 10} A reviewing court "applies a de novo standard of review to orders granting a
Civ.R. 12(B)(6) motion to dismiss." Menorah Park Ctr. for Senior Living v. Rolston, 164
Ohio St.3d 400, 2020-Ohio-6658, ¶ 12. In considering a motion to dismiss for failure to
state a claim, "we must presume that all factual allegations of the complaint are true and
make all reasonable inferences in favor of the non-moving party." Mitchell v. Lawson Milk
Co., 40 Ohio St.3d 190, 192 (1988), citing 2A Moore, Federal Practice, Paragraph 12.07[2.5]
(1985). Further, before a court may dismiss the complaint, "it must appear beyond doubt
that plaintiff can prove no set of facts warranting a recovery." Id., citing O'Brien v. Univ.
Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus.
{¶ 11} "In 1963, the General Assembly enacted the recreational user statute, R.C.
1533.18 et seq., Am.H.B. No. 179, 130 Ohio Laws 423, 1638, 'to encourage owners of
premises suitable for recreational pursuits to open their land to public use without fear of
liability.' " Combs v. Ohio Dept. of Natural Resources, Div. of Parks & Recreation, 146
Ohio St.3d 271, 2016-Ohio-1565, ¶ 11, quoting Loyer v. Buchholz, 38 Ohio St.3d 65, 66
(1988). See also Stone v. Northmont City Schools, 2d Dist. No. 29271, 2022-Ohio-1116,
¶ 28.
{¶ 12} R.C. 1533.181(A), Ohio's recreational user statute, states as follows:
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.
{¶ 13} R.C. 1533.18(A) provides the following definition: " 'Premises' means 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." Notably, in 1978, the
No. 22AP-27 6
Supreme Court of Ohio concluded that "recreational user immunity also applies to state-
owned property, because the waiver of sovereign immunity in R.C. 2743.02(A) provides
that the liability of the state will be determined in accordance with the rules of law
applicable to suits between private parties." Combs at ¶ 12, citing McCord v Ohio Div. of
Parks & Recreation, 54 Ohio St.2d 72, 74 (1978). See also LiCause v. Canton, 42 Ohio St.3d
109, 110 (1989).
{¶ 14} Both appellant and ODNR agree that Hocking Hills State Park is a "premises"
as found in the recreational user statute, R.C. 1533.181(A), and further defined in R.C.
1533.18(A). (Mot. to Dismiss at 2, 4, 5; Memo. in Opp. at 3.) The Court of Claims likewise
recognized, based on the allegations of the complaint, Hocking Hills State Park as a
"premises." (Entry of Dismissal at 4.)
{¶ 15} R.C. 1533.18(B) defines "[r]ecreational user" to mean: "[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."
{¶ 16} By enacting the recreational user statute, the General Assembly amended the
common law rule and, as stated in Fryberger v. Lake Cable Recreation Assn., Inc., 40 Ohio
St.3d 349, 351 (1988), "the applicability of R.C. 1533.181 does not depend upon the
common-law status of the injured party as trespasser, licensee, social guest, or invitee."
Thus, in lieu of the common law distinctions, the duty owed depends on "whether the
person using the property qualifies as a recreational user." Pauley v. Circleville, 137 Ohio
St.3d 212, 2013-Ohio-4541, ¶ 21; Combs at ¶ 14, quoting Pauley at ¶ 21.
{¶ 17} "[A] person who enters or uses * * * land which is held open to the general
public free of charge for recreational pursuit is a recreational user." LiCause at 112, citing
Johnson v. New London, 36 Ohio St.3d 60 (1988). In Pauley, the Supreme Court noted:
The types of recreational activities that qualify as a recreational
use are diverse. R.C. 1533.181(B) lists hunting, fishing,
trapping, camping, swimming, operating a snowmobile, all-
purpose vehicle, or four-wheel-drive motor vehicle, and "other
recreational pursuits" as examples of the types of activities
No. 22AP-27 7
contemplated by the statute. And courts have broadly
construed "other recreational pursuits" to include sledding,
Marrek v. Cleveland Metroparks Bd. of Commrs., 9 Ohio St.3d
194 * * * (1984); horseback riding, Crabtree v. Shultz, 57 Ohio
App.2d 33 * * * (10th Dist.1977); watching others swim,
Fetherolf v. Ohio Dept. of Natural Resources, 7 Ohio App.3d
110 * * * (10th Dist.1982); motorcycle riding, Kelley v.
Differential Corp., 3d Dist. * * * No. 5-81-35 * * * (May 6,
1982); using a swingset, Vitai v. Sheffield Lake, 9th Dist. * * *
No. 4045 * * * (Jan. 21, 1987); riding a merry-go-round, Miller
v. Sheffield Lake, 9th Dist. * * * No. 4133 * * * (Apr. 8, 1987);
riding a bicycle, Erbs v. Cleveland Metro Parks Sys., 8th Dist.
* * * No. 53247 * * * (Dec. 24, 1987); and watching others play
baseball, Buchanan v. Middletown, 12th Dist. * * * No. CA86-
10-156 * * * (Aug. 24, 1987).
Pauley at ¶ 19.
{¶ 18} Appellant and ODNR agree that on September 2, 2019, Schafer was a
"recreational user" pursuant to R.C. 1533.18(B). (Mot. to Dismiss at 2, 4, 5; Memo. in Opp.
at 3.) The Court of Claims also noted "[i]t is not disputed that Schafer was a recreational
user of Hocking Hills State Park." (Entry of Dismissal at 3.)
{¶ 19} All parties also agree that on that same date, September 2, 2019, J.C. and J.B.
were "recreational users" pursuant to R.C. 1533.18(B). (Mot. to Dismiss at 2, 4, 5; Memo.
in Opp. at 4, 7; Oral Argument of Appellant 05/04/2022; Entry of Dismissal at 4.)
{¶ 20} Here, according to the allegations of the complaint, Schafer, J.C., and J.B.,
recreational users, entered onto Hocking Hills State Park, a premises, on the same date to
participate in various recreational pursuits. J.C. and/or J.B. found a cut log and brought
that log to the top of a cliff above where Schafer was standing. It is alleged that J.C. and/or
J.B. rolled the log over the top of the cliff, thereby striking Schafer and causing her fatal
injury.
{¶ 21} The recreational user statute limits the liability of landowners for injuries to
recreational users in three ways. First, R.C. 1533.181(A)(1) states that "[n]o owner, lessee,
or occupant of premises * * * [o]wes any duty to a recreational user to keep the premises
safe for entry or use." Second, R.C. 1533.181(A)(2) states that "[n]o owner, lessee, or
occupant of premises * * * [e]xtends any assurance to a recreational user, through the act
of giving permission, that the premises are safe for entry or use." Third, R.C. 1533.181(A)(3)
No. 22AP-27 8
provides that "[n]o owner, lessee, or occupant of premises * * * [a]ssumes responsibility for
or incurs liability for any injury to person or property caused by any act of a recreational
user."
{¶ 22} In Combs, the Supreme Court, in reviewing Ohio case law applying the
provisions of R.C. 1533.181, noted "[o]ur jurisprudence holding that the recreational user
statute precludes liability involves injuries arising from the condition of the premises * * *
or from the acts of another recreational user." Combs at ¶ 16 (citing in part Marrek v.
Cleveland Metroparks Bd. of Commrs., 9 Ohio St.3d 194 (1984), involving a "recreational
user struck by another recreational user while sledding"). In the present case, the focus of
appellant's argument on appeal involves the contention that the Court of Claims erred in
its determination that Schafer's fatal injury arose from the "condition of the premises."
(Appellant's Brief at 7.) While such argument implicates the first two subsections of R.C.
1533.181 (i.e., R.C. 1533.181(A)(1) and (2)), we initially address the allegations in the
complaint in the context of R.C. 1533.181(A)(3), which "provides that a landowner is not
liable for injuries caused by the act of a recreational user." Combs at ¶ 15.
{¶ 23} This court recognizes that "[t]he immunity afforded by the recreational user
statute is not absolute." Id. Specifically, "[t]he General Assembly could have provided that
a landowner owes no duty whatsoever to any recreational user or that a landowner is not
liable for injury caused by the act of the landowner or its employees, but tellingly, it did not
do so." Id. However, just as telling is the inclusion of R.C. 1533.181(A)(3), providing that
"[n]o owner * * * of premises * * * [a]ssumes responsibility for or incurs liability for any
injury to person or property caused by any act of a recreational user." The above statutory
language is broad (i.e., "any act of a recreational user"), and presumably reflects "the
purpose of the recreational-user statute, which is to encourage owners of premises suitable
for recreational pursuits to open their land to public use without fear of liability." Pauley
at ¶ 35, citing Moss v. Dept. of Natural Resources, 62 Ohio St.2d 138, 142 (1980).
{¶ 24} Here, the facts as set forth in the complaint indicate that Schafer, while using
the premises for recreational pursuit (as defined by the recreational user statute), was
injured by the act of one or two recreational users also on the premises. Accepting the truth
of the allegations in the complaint and making all reasonable inferences in favor of the non-
No. 22AP-27 9
moving party (as we are required to do), we do not find that the factual allegations are
sufficient to overcome the immunity afforded an owner under R.C. 1533.181(A)(3).
{¶ 25} Alternatively, and based on this court's de novo review, we also agree with the
Court of Claims' determination that the "cut" log that struck Schafer constituted a
"condition of the premises" (thereby implicating the immunity provision of R.C.
1533.181(A)(1)). (Entry of Dismissal at 4.) In considering whether immunity applies,
"courts examine the essential character of the property," and "the property must be held
open to the public for recreational use, free of charge." Pauley at ¶ 16. In this respect,
"[r]ecreational premises typically 'include elements such as land, water, trees, grass, and
other vegetation.' " Id. at ¶ 17, quoting Miller v. Dayton, 42 Ohio St.3d 113, 114 (1989).
However, in order " '[t]o 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 ¶ 18, quoting Miller at 114.
{¶ 26} In asserting Schafer's injury did not arise from the condition of the premises,
appellant relies on Combs and Ryll v. Columbus Fireworks Display Co., Inc., 95 Ohio St.3d
467, 2002-Ohio-2584.
{¶ 27} Under the facts in Combs, the plaintiff, a recreational user at a state park, was
walking across a causeway at the same time an ODNR employee "was using a boom mower
to cut weeds and brush along the lakeshore." Combs at ¶ 3. One of the mower blades hit a
stone, throwing a rock "that struck Combs in the eye and face," causing serious injury. Id.The plaintiff brought an action against ODNR, admitting he was a recreational user at the
time of the injury, but asserting that "recreational user immunity attaches only when injury
results from the condition of the premises." Id. at ¶ 7. In Combs, the Supreme Court held
the recreational user statute did not apply where "the injuries to Combs did not arise from
a defective condition of the premises but rather from alleged negligent mowing when the
boom mower struck the riprap." Id. at ¶ 20.
{¶ 28} In Ryll, the appellant's spouse was killed while attending a city's fireworks
display when "shrapnel from an exploding firework shell hit him." Ryll at ¶ 1. The city and
township asserted immunity, relying on the provisions of R.C. 1533.181. The Supreme
Court rejected their argument, holding that the cause of injury "had nothing to do with
'premises' as defined in R.C. 1533.18(A)," but rather the cause of injury was a result of
No. 22AP-27 10
"shrapnel from fireworks, which is not part of 'privately-owned lands, ways, waters, and
* * * buildings and structures thereon.' " Id. at ¶ 15.
{¶ 29} In response to appellant's reliance on Combs and Ryll, ODNR cites to the
Supreme Court's decision in Pauley. Under the facts of that case, a teenager (Pauley), while
sledding in a city park with friends, suffered a broken neck and was rendered a quadriplegic
when his sled hit a "railroad-tie-like object" that was embedded in a mound of dirt and
topsoil the city had placed on the park ground forming an approximately 15-foot-high
mound. Pauley at ¶ 32. The appellants (Pauley and his mother) relied on the Supreme
Court's decision in Ryll to argue that, " '[i]n addition to considering whether the plaintiff
was a "recreational user" within the meaning of R.C. 1533.18(B),' * * * 'courts must also
determine whether the cause of the injury is attributable to premises that are truly
recreational.' " (Citation omitted.) Id. at ¶ 24. The appellants in Pauley also relied on
Miller (involving a plaintiff injured on a softball field), and requested the court "to hold that
'[i]n lawsuits involving man-made objects, liability has been precluded only when such
improvements enhance the recreational activities on the property.' " (Citation omitted.) Id.
at ¶ 25.
{¶ 30} The Supreme Court rejected appellants' arguments, finding that "the instant
case is distinguishable from both Ryll and Miller," as under the facts in Ryll "the injury was
caused by a fireworks shell, not by a defect on the city's premises." Id. at ¶ 32. The Supreme
Court concluded that, as "the railroad-tie-like object was embedded in a mound of dirt that
was part of the park at the time [Pauley] suffered his accident[,] * * * the injury was caused
by a defect in the premises, making Ryll inapplicable." Id.
{¶ 31} With respect to the Miller decision, the Supreme Court held the issue in that
case "was whether the improvements so changed the essential character of the park as to
take it outside the protection of the statute." Pauley at ¶ 33. The court rejected "any
contention that the presence of a railroad tie in a public park changes its essential character
as a recreational space." Id. The court held that "to adopt appellants' reading of Miller
would require property owners to make their property safe for entry and use in direct
contravention of the plain language in R.C. 1533.181(A)(1)." Id. at ¶ 34. Thus, the court
concluded, "[w]hen viewing the park property 'as a whole,' the existence of a single railroad
No. 22AP-27 11
tie does not change the essential character of the park to something other than a property
that is open for recreational use." Id. at ¶ 37.
{¶ 32} In the present case, we similarly conclude that a "cut" log in a state park does
not change the essential character of the park. Additionally, we find the facts alleged in the
complaint to be distinguishable from the facts in both Combs (involving the negligence of
a park employee) and Ryll (where the victim was injured by shrapnel from an exploding
fireworks shell as opposed to the condition of the premises). Rather, the facts of this case
(alleging injury resulting from cut log left in park clearing) are more analogous to those in
Pauley, in which the injury to the plaintiff from a railroad tie embedded in a mound of dirt
the city had deposited in park was caused by "a defect in the premises." Pauley at ¶ 32. See
also Gilbert v. Cleveland, 8th Dist. No. 107934, 2019-Ohio-3517, ¶ 28 (hazard created by
city employee in removing wooden post from hole in pedestrian walkway did not affect
city's immunity under recreational user statute as injury was caused by "the condition of
the premises" and plaintiff "was a recreational user of the park"); Stone at ¶ 40 (installation
of rope attached on each side of bike trail was a "condition of the premises" such that
immunity under recreational user statute applied). Accordingly, we conclude the Court of
Claims did not err in its determination the fatal injury from the log arose from the condition
of the premises.
{¶ 33} Appellant further contends ODNR was negligent in failing to restrict access
or close off the "outlaw trails" from other recreational users. (Appellant's Brief at 11.) This
court finds, however, that such a requirement (i.e., to restrict access or close off trails)
would, as observed by the Supreme Court in Pauley, require ODNR "to make [its] property
safe for entry and use in direct contravention of the plain language in R.C. 1533.181(A)(1)."
Pauley at ¶ 34. This is also true even accepting allegations by appellant that ODNR
affirmatively created a dangerous condition by placing the stacked logs in the clearing.
When a recreational user enters a park free of charge, a landowner owes "no duty to keep
the premises safe, and the [landowner's] alleged creation of a hazard on the premises does
not affect its immunity." Id. at ¶ 22. Thus, "an owner cannot be held liable for injuries
sustained during recreational use 'even if the property owner affirmatively created a
dangerous condition.' " Id. at ¶ 21, quoting Erbs v. Cleveland Metroparks Sys., 8th Dist.
No. 22AP-27 12
No. 53247 (Dec. 24, 1987), citing Milliff v. Cleveland Metroparks Sys., 8th Dist. No. 52315
(June 4, 1987).
{¶ 34} Thus, based on the authority of Pauley, and finding the Court of Claims
properly determined the fatal injury from the log arose from the condition of the premises,
we conclude the allegations in the complaint do not set forth an exception to the immunity
of an owner under the provisions of R.C. 1533.181(A)(1).
{¶ 35} In light of the foregoing, and based on this court's de novo review, the Court
of Claims did not err in granting ODNR's Civ.R. 12(B)(6) motion to dismiss the complaint
on the basis of the immunity provisions of R.C. 1533.181, as appellant could prove no set of
facts entitling him to relief (i.e., no set of facts that remove immunity). Accordingly,
appellant's single assignment of error is overruled, and the judgment of the Court of Claims
of Ohio is hereby affirmed.
Judgment affirmed.
LUPER SCHUSTER, P.J., and DORRIAN, J., concur.
_________________