Farris v. Mill Creek Metro. Park Dist. , 2023 Ohio 1214 ( 2023 )

[Cite as Farris v. Mill Creek Metro. Park Dist., 2023-Ohio-1214.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
George Farris,
Plaintiff-Appellee,
v.
Mill Creek Metropolitan Park District, et al.,
Defendants-Appellants.
_____________________________________________________________
OPINION AND JUDGMENT ENTRY
Case No. 22MA00008
_____________________________________________________________
Appeal from the Court of Common Pleas of
Mahoning County, Ohio
Case No. 20-CV-01010
BEFORE: Judge Jason P. Smith (Sitting by Assignment)
Judge Peter B. Abele (Sitting by Assignment)
Judge Michael D. Hess (Sitting by Assignment)
_____________________________________________________________
JUDGMENT REVERSED AND CAUSE REMANDED
_____________________________________________________________
Gregory A. Beck Nicholas Cerni
Andrea K. Ziarko 755 Boardman-Canfield Road
Baker/Dublikar Suite M-1
400 South Main Street Youngstown, Ohio 44512
North Canton, Ohio 44720 Counsel for Appellee
Counsel for Appellants
Mahoning App. No. 22MA8 2
RELEASED : 4/13/2023
{¶1} Appellants, Mill Creek Metropolitan Park District, et al. (hereinafter
“Mill Creek”), appeal the judgment of the Mahoning County Court of Common
Pleas denying its motion for summary judgment. On appeal, Mill Creek contends
1) that the trial court was incorrect in holding that the recreational user immunity
statute does not apply in this case; and 2) that the trial court incorrectly held that it
was not entitled to statutory immunity pursuant to Chapter 2744 of the Ohio
Revised Code. Because we find merit to Mill Creek’s first assignment of error, it
is sustained. Accordingly, the trial court’s judgment denying Mill Creek summary
judgment on the issue of whether the recreational immunity defense applies is
reversed and this matter is remanded to the trial court with instructions for the trial
court to issue summary judgment in favor of Mill Creek. Furthermore, because
Mill Creek’s alternative argument that it is entitled to political subdivision
immunity has been rendered moot by our disposition of its first assignment of
error, we need not address it.
FACTS
{¶2} On June 22, 2019, Farris drove his vehicle to Mill Creek Park for the
purpose of meeting his brother for lunch at the Rose Garden Café, which is a
privately-leased, for-profit restaurant located within the park. Upon arrival at the
park, Farris parked his car and decided to ride his bicycle along Chestnut Hill
Mahoning App. No. 22MA8 3
Drive the rest of the way to the restaurant. Chestnut Hill Drive is an unmarked,
two-lane roadway, with a posted speed limit of 20-miles-per-hour. The roadway is
completely contained within the park and is maintained by the park. It connects
with Canfield Road/State Route 62 on the southern end and provides access to
various park attractions and parking lots within the park. Chestnut Hill Drive was
designed for multipurpose use by vehicles, bikers, hikers, walkers, joggers, and
other recreational users.
{¶3} While bicycling on Chestnut Hill Drive, Farris hit a pothole which
caused him to flip over his bicycle. Farris explained during his deposition that
although he was watching for potholes as he was riding, the pothole was concealed
by the shadows from nearby trees. He described the pothole as being “ridiculous”
in size and “a yard wide.” The fall resulted in Farris being rendered unconscious
for a period of time. He was then transported to the hospital by ambulance, where
he was admitted for injuries that included, but were not limited to, broken ribs and
a hemothorax.
{¶4} Farris filed a complaint on June 18, 2020, alleging Mill Creek was
negligent and had breached a fiduciary duty owed to him. More specifically, Farris
alleged that Mill Creek was negligent for “failing to remedy or warn of the
cavernous pothole in the middle of the two-lane road” and that Mill Creek
“exacerbated the dangerous condition with trees that caused shade to conceal the
Mahoning App. No. 22MA8 4
pothole.” Farris also alleged that Mill Creek had breached its fiduciary duty “by
failing to utilize public funds and execute its function to prevent the existence of
dangerous conditions on Park grounds and its failure to implement policies to
remedy or warn of the dangerous pothole in the middle of the two-lane road.” Mill
Creek filed its answer on July 8, 2020, asserting that it was immune from liability
under R.C. 2744.01 et seq. It also asserted that Farris’ claims were barred by the
recreational user immunity statutes, found in R.C. 1533.18 and 1533.181.
{¶5} Mill Creek filed a motion for summary judgment on May 28, 2021,
arguing it was immune from liability under R.C. 1533.181(A)(1) and (3). It
alternatively argued that it was immune from liability under the Political
Subdivision Tort Liability Act, as codified in Chapter 2744 of the Ohio Revised
Code. Mill Creek also argued that it had no actual or constructive knowledge of
the existence of the pothole and further argued that the pothole was an open and
obvious danger. The record before us consists of the pleadings, motions and
exhibits attached thereto, as well as the deposition transcript of Farris and the
deposition transcript and answers to interrogatories of Aaron Young, Mill Creek’s
executive director.
{¶6} The trial court denied Mill Creek’s motion for summary judgment on
January 14, 2022. The court found that Mill Creek was not entitled to judgment as
a matter of law on the issues of immunity under either the recreational user
Mahoning App. No. 22MA8 5
immunity statute or the political subdivision liability act. The trial court further
found that a genuine issue of material fact existed as to whether the hazard at issue
was open and obvious. It is from this judgment that Mill Creek now appeals,
setting forth two assignments of error for our review.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT WAS INCORRECT IN HOLDING
THAT THE RECREATIONAL USER IMMUNITY
STATUTE DOES NOT APPLY TO THIS CASE.
II. THE TRIAL COURT INCORRECTLY HELD THAT
APPELLANTS ARE NOT ENTITLED TO
STATUTORY IMMUNITY PURSUANT TO CHAPTER
2744 OF THE REVISED CODE.
ASSIGNMENT OF ERROR I
{¶7} In its first assignment of error, Mill Creek contends that the trial court
was incorrect in holding the recreational user immunity statute does not apply to
this case. Mill Creek argues that the roadway at issue herein constitutes a
“premises” as defined under the recreational user immunity statute. It further
argues that because Farris was using the roadway while participating in a
recreational activity, the trial court’s decision determining that the recreational user
immunity statute did not apply was incorrect. Farris, however, contends that the
trial court correctly found that the recreational user immunity statute did not apply
to shield Mill Creek from liability in this case. He argues that roadways are not
“premises” as defined in R.C. 1533.18 and that he was traveling on the road not for
Mahoning App. No. 22MA8 6
recreation, but in order to meet his brother at a restaurant located within the park.
He notes that the restaurant is a for-profit entity which generates revenue for Mill
Creek. Thus, Farris argues he was a business invitee to which Mill Creek owed “a
duty to exercise ordinary care to maintain its premises in a reasonably safe
condition * * *.”
Standard of Review
{¶8} “Summary judgment can be granted when there remains no genuine
issue of material fact and when reasonable minds can only conclude that the
moving party is entitled to judgment as a matter of law.” Moskalik v. Mill Creek
Metroparks, 2015-Ohio-4826, 50 N.E.3d 946, ¶ 13 (2015), citing Civ.R. 56(C).
“In determining whether there exists a genuine issue of material fact to be resolved
at trial, the court is to consider the evidence and all reasonable inferences to be
drawn from that evidence in the light most favorable to the non-movant.”
Moskalik at ¶ 13, citing Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-
1041, 883 N.E.2d 1060, ¶ 11. Thus, “[d]oubts are to be resolved in favor of the
non-movant.” Moskalik at ¶ 13, citing Leibreich v. A.J. Refrig., Inc., 67 Ohio St.3d
266, 269, 617 N.E.2d 1068 (1993). As explained in Moskalik, “[a] court ‘may not
weigh the proof or choose among reasonable inferences.’ ” Moskalik at ¶ 13,
quoting Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121, 18 O.O.3d 354,
413 N.E.2d 1187 (1980).
Mahoning App. No. 22MA8 7
{¶9} This Court further explained as follows in Moskalik:
Civ.R. 56 must be construed in a manner that balances the right
of the non-movant to have a jury decide claims and defenses that
are adequately based in fact with the right of the movant to
demonstrate, prior to trial, that the claims and defenses have no
factual basis. Byrd v. Smith, 110 Ohio St.3d 24, 26-27, 2006-
Ohio-3455, 850 N.E.2d 47, ¶ 11, citing Celotex Corp. v. Catrett,
477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The
movant has the initial burden to show that no genuine issue of
material fact exists. Byrd, 110 Ohio St.3d 24, 850 N.E.2d 47, at
¶ 10, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662
N.E.2d 264 (1996). The nonmoving party then has a reciprocal
burden. Id. The non-movant's response, by affidavit or as
otherwise provided in Civ.R. 56, must set forth specific facts
showing that there is a genuine issue for trial and may not rest
upon mere allegations or denials in the pleadings. Civ.R. 56(E).
Moskalik at ¶ 14.
{¶10} “ ‘The material issues of each case are identified by substantive
law[]’ ” and “ ‘[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.’ ”
Moskalik at ¶ 15, quoting Byrd, supra, at ¶ 12 and Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “We consider the
propriety of granting summary judgment under a de novo standard of review.”
Moskalik at ¶ 15, citing Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833
N.E.2d 712, ¶ 8.
Recreational User Immunity Statute
Mahoning App. No. 22MA8 8
{¶11} R.C. 1533.181 is entitled “Exemption from liability to recreational
users” and is commonly referred to as the recreational user immunity statute. “The
intent of the legislation was ‘to encourage owners of premises suitable for
recreational pursuits to open their land to public use without worry of liability.’ ”
Moskalik at ¶ 16, quoting Moss v. Ohio Dept. of Natural Resources, 62 Ohio St.2d
138, 142, 404 N.E.2d 742 (1980). The statute provides as follows:
(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.
{¶12} R.C. 1533.18 contains definitions of terms contained in the
recreational user immunity statute, including definitions for “recreational user” and
“premises.” The statute provides in pertinent part as follows:
(A) “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.
Mahoning App. No. 22MA8 9
(B) “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 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.
{¶13} R.C. 1533.18 defines “premises” as “privately owned lands, ways,
and waters * * *[.]” However, the Supreme Court of Ohio “has recognized that
[while] a political subdivision does not have ‘direct’ statutory immunity under the
recreational user statutes[,]” it has “ ‘derivative’ immunity from tort liability to
recreational users of public land.” Moskalik at ¶ 18, quoting Johnson v. Village of
New London, 36 Ohio St.3d 60, 62, 521 N.E.2d 793 (1988). Thus, the Supreme
Court of Ohio “has instructed courts applying the recreational user statutes to apply
‘the same standard of liability for both public and private landowners.’ ” Moskalik
at ¶ 21, quoting Marrek v. Cleveland Metroparks Bd. of Commrs., 9 Ohio St.3d
194, 197, 459 N.E.2d 873 (1984). Moreover, in Marrek, the Court expressly
concluded that a “metropark district” was entitled to immunity under the
recreational user statute. Id. Furthermore, this Court has observed that “[t]he
Supreme Court has held that park districts like [Mill Creek] enjoy the immunity
provided by R.C. 1533.181.” Shutrump v. Mill Creek Metropolitan Park District,
7th Dist. Mahoning No. 97C.A.40, 1998 WL 158864, *3.
Mahoning App. No. 22MA8 10
Legal Analysis
{¶14} The record before us indicates that Mill Creek first sought summary
judgment on the issue of immunity under R.C. 1533.181, the recreational user
immunity statute. Mill Creek alternatively sought summary judgment on the issue
of immunity under Chapter 2744 of the Ohio Revised Code, known as the Political
Subdivision Tort Liability Act. The trial court denied Mill Creek’s motion for
summary judgment, despite Mill Creek’s assertion that it was entitled to immunity
from liability under two separate statutes. With respect to the issue of immunity
under the recreational user liability statute, the trial court found that because the
accident occurred on a roadway, the matter was different from other cases
involving accidents that occurred in parks or other recreational property. More
specifically, the trial court reasoned that because the roadway at issue was open to
other motorists for travel and was not limited to recreational purposes, the
character of the property was not recreational and immunity did not apply. Thus,
at issue under Mill Creek’s first assignment of error is whether the trial court erred
in denying its motion for summary judgment that was based upon its assertion that
it was entitled to immunity under the recreational user liability statute.
{¶15} Mill Creek’s argument in support of the application of the recreational
user liability immunity statute is essentially two-fold. First, Mill Creek argues that
Farris was riding his bicycle when the accident occurred, which it argues is an
Mahoning App. No. 22MA8 11
activity that has been held to constitute a recreational activity, and that Farris did
not pay a fee to enter the park to ride his bicycle.1 Importantly, however, Mill
Creek contends that the determination of whether Farris was a recreational user
does not depend on the specific activity he was engaged in at the time of the
accident, but rather it depends on the “character of the premises” where the
accident occurred.
{¶16} Second, Mill Creek argues that contrary to the trial court’s holding, it
has been expressly held that a roadway within a park constitutes “premises” for
purposes of R.C. 1533.18. Mill Creek points out that the roadway where the
accident occurred, Chestnut Hill Drive, is a “Park District roadway/trail open to
recreational users” which “is located entirely within the Park District, and therefore
falls within the definition of ‘premises’ under R.C. 1533.181(A).” Mill Creek
further contends that although the roadway at issue was a manmade improvement,
it did not change the character of the property so as to remove immunity.
{¶17} Farris contends, on the other hand, that while the recreational user
immunity statute may apply to hike and bike trails contained within the Park
District, such immunity does not apply in this case because the accident occurred
on Chestnut Hill Drive, which Farris argues is a “two-lane thoroughfare” treated by
1
“The phrase ‘other recreational pursuits’ is to be construed broadly.” Moskalik, supra, at ¶ 29. See also Milliff,
supra, at *3 (“We conclude that a bicycle ride is a recreational pursuit within the meaning of R.C. 1533.18(B)”).
Mahoning App. No. 22MA8 12
the Park District as a roadway for purposes of ODOT funding. Farris further
argues that the recreational user immunity statute does not apply to this case
because he was using the roadway at issue to travel to the Rose Garden Café
located in the park, which Farris states is a “profit generating business” of Mill
Creek. Nonetheless, for the following reasons we agree with Mill Creek and
therefore find that the trial court erred in denying Mill Creek’s motion for
summary judgment on the issue of immunity under R.C. 1533.181.
{¶18} As set forth above, the trial court denied Mill Creek’s motion for
summary judgment claiming it was immune from liability under the recreational
user liability statute. In reaching its decision, the trial court relied on the reasoning
of the Tenth District Court of Appeals in Vinar v. Bexley, 142 Ohio App.3d 341,
755 N.E.2d 922 (10th Dist. 2001). Vinar involved a bicycle accident that occurred
on a roadway maintained by the city that was located in a city park. Vinar at 342.
Vinar fell from his bicycle when he encountered a speed bump that had been
placed in the roadway by the city. Id. The trial court granted summary judgment
in favor of the city, finding that the city was “entitled to judgment as a matter of
law on the basis of recreational user immunity.” Id. at 343.
{¶19} On appeal, Vinar argued “that R.C. 1533.181 was inapplicable to the
facts of the case, which involved a municipal roadway running through a
recreational area. Id. In analyzing the character of the property at issue, the Vinar
Mahoning App. No. 22MA8 13
court noted that the roadway was “maintained by the city,” was “running through a
city park,” and was “paved, marked for two-way traffic, ha[d] signage for speed
limits, and [was] open to both automobile and bicycle traffic.” Id. at 345. The trial
court also noted that the roadway was “presumably * * * available to motorists
(and bicyclists) for travel not related to recreational use.” Id. Relying on cases
from Louisiana and Utah, the appellate court reversed the trial court and found that
immunity did not apply to the accident because it occurred on a roadway, which
the court described as a “thoroughfare through the park” that was “available to the
general public for travel by vehicles and bicycles” for nonrecreational purposes.
Id.
{¶20} Although the voting judges in Vinar concurred, they did not concur in
judgment and opinion. Judge Lazarus issued a concurring decision asserting that a
genuine issue of fact remained as to whether “the roadway was designed for use as
a public thoroughfare, as represented during oral argument, or rather simply as a
means of providing access for the public to visit the [Jeffrey mansion] or use the
park for recreational purposes.” Id. at 346-347. Thus, the concurring judge
believed a genuine issue of material fact existed regarding the “character of the
property.” Id. at 347.
{¶21} Although the Vinar court relied on authority from other districts in
reaching its decision, it ignored prior authority in Ohio expressly holding that
Mahoning App. No. 22MA8 14
roadways constitute “premises” for purposes of R.C. 1533.18(A). See Milliff v.
Cleveland Metroparks System, 8th Dist. Cuyahoga No. 52315, 1987 WL 11969, *3
(1987). Milliff was bicycling on a roadway located in the Cleveland Metroparks
System and “collided with a rock barrier that was used to block access to a washed
out area” after he “failed to notice at least one posted warning sign that the road
ahead was closed.” Id. at *1. The trial court granted summary judgment in favor
of the metropark based upon R.C. 1533.181. Id. On appeal, Milliff argued “that
R.C. 1533.181 has no application to Public Roadways as such are not Recreational
Premises within the terms of the Statute.” Id. The appellate court rejected
Milliff’s argument and not only found that Milliff was a recreational user, but it
also expressly found that the term “way,” as contained in the definition of
“premises” in R.C. 1533.18(A), “specifically includes by definition ‘road.’ ” Id. at
*3. The Milliff court further concluded “that the statute is clear on its face and
undoubtedly includes roadway as a ‘premise’ within the meaning of R.C.
1533.18.” Id.
{¶22} In reaching its holding, the Milliff court relied upon the definition of
“way” contained in the Webster’s Second New International Dictionary, 1942
Edition, which defined “way” as “a passage, road, street, [track] or path of any
Mahoning App. No. 22MA8 15
kind.” Id.2 The current definition of “way” as it appears in the Merriam-Webster
online dictionary is “a thoroughfare for travel or transportation from place to
place.” The current definition of the word “thoroughfare” in the Merriam-Webster
online dictionary is “a street open at both ends.”
{¶23} Although Milliff was decided in 1987, the Eighth District Court of
Appeals reaffirmed this reasoning in Finley v. Cleveland Metroparks, 2010-Ohio-
4013, 937 N.E.2d 645 (8th Dist. 2010), which involved a motorcycle wreck caused
by a fallen tree on a public roadway running through the park. More specifically,
in reaching its decision the Finley court noted that it “had held that the statute
includes a roadway within the Metroparks system as ‘premises’ within the meaning
of R.C. 1533.18.” Finley at ¶ 49, citing Milliff, supra. The Finley Court ultimately
concluded that the park district was immune from liability pursuant to the
recreational user liability immunity statute. Finley at ¶ 54.
{¶24} Aaron Young, Mill Creek’s executive director, was deposed by Farris
and the transcript of Young’s deposition is part of the record on appeal. During the
deposition, counsel for Farris repeatedly referred to Chestnut Hill Drive as a
“thoroughfare.”3 There is evidence in the record that Chestnut Hill Drive connects
2
The Milliff court mistakenly stated that the term “way” was defined in part as a “truck” in the Webster’s Second
New International Dictionary, 1942 Edition. The word “truck” should have appeared as “track” in the quoted
definition.
3
Young actually disputed that the roadway constituted a “thoroughfare,” explaining that he didn’t consider it such
because it was not marked for two-way traffic.
Mahoning App. No. 22MA8 16
with Canfield Road, or State Route 62, on its southern end. There was no evidence
introduced into the record regarding whether Chestnut Hill Drive connects with
another roadway on its northern end, however, Young referred to Chestnut Hill
Drive as a paved service road and stated that although it can accommodate both
northbound and southbound traffic, it is actually closed by the park to all forms of
travel in the winter in order to alleviate the amount of snow plowing that must be
done by the park. Young further testified that while the roadway at issue benefits
from the ODOT Park District Road Improvement Fund and although the ODOT
Ohio Parks and Recreation Association Biennium Fund assists with the purchase of
material, including asphalt for paving, all maintenance, patching and paving is
performed by park district staff. Young also testified that maintenance of all
vegetation, including trees, is a metroparks function.4
{¶25} A review of the record demonstrates that Chestnut Hill Drive is
entirely located within the park district, that it serves as a route to various
attractions and parking lots within the park, including the Rose Garden Café, and
the roadway is maintained by the park district. It is also clear that the roadway is
capable of handling two-way traffic, even if not marked for such, and that vehicles
are permitted to travel on the road. According to Young’s admissions, “Chestnut
4
In his complaint, Farris not only alleged that Mill Creek “breached their duty by failing to remedy or warn of the
cavernous pothole in the middle of the two-lane road[,]” but he also alleged that Mill Creek “exacerbated the
dangerous condition with trees that caused shade to conceal the pothole.”
Mahoning App. No. 22MA8 17
Hill Drive is an unmarked, paved surface designed for multipurpose use by
vehicles, bikers, hikers, walkers, joggers, and other recreational users.”
{¶26} Based upon the record before us, we disagree with the trial court to
the extent it applied the reasoning set forth in Vinar to remove Mill Creek’s
immunity from liability for injuries sustained by a bicyclist in an accident that
occurred on a park district multi-use roadway located entirely within the park,
which is held open to the public for recreational use without a fee, simply because
the park district does not prohibit use of the roadway by the general motoring
public. Although the Vinar decision is supported by authority from two other
states, holdings from Louisiana and Utah are not binding upon this Court, and
neither is Vinar, which was issued by the Tenth District. Upon de novo review, we
find the reasoning set forth in Milliff, supra, to be sound, logical and more
persuasive than the reasoning in Vinar. We are further persuaded by the reasoning
set forth in Brinkman v. City of Toledo, which involved a child who was injured
while playing football on a small piece of land owned and maintained by the city
that was actually part of the street right-of-way. Brinkman, 611 N.E.2d 380, 381,
81 Ohio App.3d 429 (6th Dist. 1992). The Brinkman court observed that although
city streets and sidewalks are commonly used for recreational purposes, “the
essential character of streets is not recreational[,]” unlike city parks, which are
“held out to the public for recreational purposes.” Id. at 383-384. In the case
Mahoning App. No. 22MA8 18
presently before us, we have a mixture of factors. Here, although the accident at
issue occurred on a roadway, that roadway is a park district roadway contained
completely within the park that is serviced and maintained by park staff. Although
it was designed as a multipurpose roadway for recreational use and is held open to
the public for that purpose, it is also open to the general public for travel.
{¶27} The Brinkman court ultimately determined that genuine issues of
material fact existed as to whether the property at issue was held out by the city as
being used for recreational purposes. Id. at 383. In so holding, the court observed
that “[m]unicipal property is often used for recreational purposes without
becoming recreational premises.” Id. We believe the inverse is true as well.
Property held open to the public for recreational uses may often be used by
individuals for non-recreational purposes, but that does not necessarily change the
recreational character of the property, nor should it remove the immunity afforded
to owners of property that are held open to the public free of charge for
recreational purposes.
{¶28} Here, Farris claims that because he was simply traveling on his
bicycle to a for-profit restaurant located within the park, he was not engaged in a
recreational activity. Instead, he argues that he was a business invitee to which
Mill Creek owed a duty of care. Interestingly, although it is not mentioned by
either party on appeal, Farris stated during his deposition that he actually drove his
Mahoning App. No. 22MA8 19
vehicle to the park, parked it in a parking lot, took his bicycle out of his car, and
from there began riding his bicycle on Chestnut Hill Drive. He explained during
his deposition that while he normally rides his bicycle on the hike and bike trails
located within the park, he decided to take a different route to the restaurant
because he was running ahead of schedule. We find this description of Farris’
activity to be more akin to recreation than non-recreational travel.
{¶29} Furthermore, there is a framework for determining whether an
individual is a recreational user, which this Court has explained in Shutrump v.
Mill Creek Metropolitan Park District, 7th Dist. Mahoning No. 97 C.A. 40, 1998
WL 158864. Shutrump was injured when the trail she was walking along
crumbled beneath her and caused her to fall over the trail’s edge. Shutrump at *1.
Shutrump argued that she was not a recreational user because she was simply using
the trail as a shortcut to a convenience store and thus, the immunity defense should
fail. Id. at *2. Confronted with the question of whether Shutrump was a
recreational user, we explained as follows regarding the analysis for determining
whether an individual qualifies as a recreational user:
The first syllabus in Miller v. City of Dayton (1989), 42 Ohio
St.3d 113, 537 N.E.2d 1294, states:
“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.”
Mahoning App. No. 22MA8 20
Shutrump at *2.
{¶30} We then went on to explain as follows:
The Supreme Court also noted that it has broadly construed the
phrase “other recreational pursuits.” Id., at 115, 537 N.E.2d
1294. Also, the Supreme Court stated that:
“[t]he existence of statutory immunity does not depend upon the
specific activity pursued by the plaintiff at the time of plaintiff's
injury. Rather, the inquiry should focus on the nature and scope
of activity for which the premises are held open to the public.
The goal is to determine the character of the premises. If the
premises qualify as being open to the public for recreational
activity, the statute does not require a distinction to be made
between plaintiffs depending upon the activity in which each was
engaged at the time of injury.”
Id.{¶31} In Shutrump, this Court determined that the rationale set forth in
Miller was consistent with the purpose and policy behind Ohio’s recreational user
statute and “that to draw a distinction between persons based on the activity they
were engaged in on the property would defeat the purpose of the legislation[]”
because “[t]he owners of recreational property, including parks, would be exposed
to liability based not on the purpose for which the park is held open to the public,
but based on each individual’s purpose for using the property.” Id. We further
reasoned that “[i]f the test was activity based, the owners of such premises would
have no reasonable way of ensuring their immunity.” Id. at *3. Thus, we
determined that “[t]he fact that appellant was using the trail as a shortcut is
Mahoning App. No. 22MA8 21
irrelevant.” Id. Further, and importantly, we found that “park districts like [Mill
Creek] enjoy the immunity provided by R.C. 1533.181[]” and that “there is nothing
before us that indicates that the park held the trail open to the public for anything
other than hiking or other recreational pursuits.” Id. Although Farris argues, and
the trial court found, that because Mill Creek permitted vehicular traffic it was not
entitled to immunity, the Finley court observed that “ ‘recreation involving a motor
vehicle does not enjoy an exemption from the scope of the recreational immunity
statute.’ ” Finley at ¶ 53, quoting Price v. Village of New Madison, 2d Dist. Darke
No. 1348. 1994 WL 587548, *5 (reasoning that “[o]ne may engage in recreation
and travel at the same time and the mere fact of travelling on city streets does not
necessarily terminate recreation”).
{¶32} Further, as explained in Price at *2:
A recreational user is a person to whom permission has been
granted, without the payment of a fee or consideration to the
owner, lessee, or occupant of the premises * * * to enter upon the
premises to * * * engage in other recreational pursuits. R.C.
1533.18(B).
The kind of premises appropriate for recreational immunity
generally includes fields and recreation areas on open land. The
presence of improvements on a property does not remove the
property from statutory protection, as “premises,” as defined in
R.C. 1533.18(A), “means all * * * ways, waters, and any
buildings and structures thereon.” Miller, supra, at 114.
Statutory immunity applies if the characteristics of the premises,
viewed as a whole, are consistent with the purpose of use
envisioned by the legislature in its grant of statutory immunity,
and the question is whether users use the premises to “hunt, fish,
Mahoning App. No. 22MA8 22
trap, camp, hike, swim, or engage in other recreational pursuits.”
Miller, supra, at 115.
Expanded reasoning as to what constitutes “premises” under the statute, as well as
what does or does not change the “character of the property” is set forth in Miller
v. City of Dayton as follows:
Generally speaking, recreational premises include elements such
as land, water, trees, grass, and other vegetation. But recreational
premises will often have such features as walks, fences and other
improvements. The significant query is whether such
improvements change the character of the premises and put the
property outside the protection of the recreational-user statute.
To consider the question from a different perspective: Are the
improvements and man-made structures consistent with the
purpose envisioned by the legislature in its grant of immunity?
In other words, are the premises (viewed as a whole) those which
users enter upon “ * * * to hunt, fish, trap, camp, hike, swim, or
engage in other recreational pursuits?”
Miller at 114-115. See also Pauley v. City of Circleville, 2012-Ohio-2378, 971
N.E.2d 410, ¶ 25 (4th Dist. 2012) (determining that the city’s storage of mounds of
excess topsoil, which included a concealed railroad tie, on the grounds of city park
did not sufficiently change the essential character of park so as to remove
immunity from liability for serious injuries sustained by a sledder at the park).5
{¶33} Here, we cannot conclude that the existence of a roadway within the
park system changed the character of the property so as to remove the property
5
The Pauley court also observed that courts have rejected arguments that the recreational user statutes did not
protect defendants from liability even when the defendant affirmatively created a dangerous condition on the
premises. Pauley at ¶ 21, citing Milliff, supra, at *3.
Mahoning App. No. 22MA8 23
from the statutory definition of “premises” for purposes of immunity from
recreational user liability. Unlike the roadway in Vinar, the roadway at issue here
was owned and maintained by Mill Creek. Further, as discussed above, although it
was apparently used by the general public at times for general travel, Mill Creek
held its property open to the public for recreational use and did so without charging
a fee. At this juncture, we take the opportunity to note that some cases, in our
view, seem to apply too narrow of an analysis to the question of whether certain
property constitutes “premises” for purposes of R.C. 1533.18. Rather than
determining whether the roadway itself constitutes “premises,” we believe the
correct analysis should be whether the character of the property, the park itself,
constitutes “premises” under R.C. 1533.18 and whether the addition of the
roadway, which is obviously a man-made improvement, changed the character of
the property as a whole so as to remove the immunity afforded by R.C. 1533.18.
See generally Moskalik, supra, at ¶ 35 (reasoning that “[t]he essential character of
the outdoor park property and trails was not changed by the existence of farm
buildings”).
{¶34} The roadway at issue here, although connected at one end to a public
road, was completely contained within the park system and provided access to park
attractions and parking lots. Furthermore, Farris was engaged in the activity of
bicycling when he was injured. As set forth above, bicycling has been held to
Mahoning App. No. 22MA8 24
constitute a recreational activity. Despite Farris’ argument that he was merely
traveling on his bicycle to get to a restaurant, the individual intent of a defendant
when conducting the activity in question is irrelevant to the question of whether
one can be classified as a recreational user, especially if the activity is, by outward
appearance, a recreational activity. See Finley, supra, at ¶ 53. In Finley, the court
rejected the argument “that the use of the road was recreational because they were
headed home from their picnic, which is akin to a motorist using [the road] to
commute to and from work”). Finley at ¶ 53. In reaching its decision, the Finley
court relied on the reasoning of Price, supra, which concluded that “a recreational
use does not end its character as recreational merely because the user is returning
from the recreational activity, especially if the user’s method of travel is
indistinguishable in outward appearance from the recreational activity”).
{¶35} In addition to the reasoning set forth in Milliff, Finley, Shutrump, and
Price, supra, we believe our reasoning is further bolstered by the reasoning set
forth in Zachel v. Mahaney, 6th Dist. Lucas No. L-89-187, 1990 WL 97668, and
Stone v. Northmont City Schools, 2022-Ohio-1116, 187 N.E.3d 54. In Zachel, a
lawsuit was filed against a board of education after an individual was injured while
riding a motorcycle/dirt bike on what was described as a two-lane “service road”
on the school grounds. Zachel at *1. The accident occurred at the intersection of
two roadways where a “stand of evergreen trees” was located behind a fence
Mahoning App. No. 22MA8 25
approximately eight to twelve feet from the edge of a curve in the roadway. Id.Zachel argued that the school was negligent and had failed to keep a public road
free from nuisance by allowing trees to grow which prevented drivers from being
able to see approaching vehicles. Id. Of relevance herein, Zachel also claimed that
there was no immunity from liability for accidents occurring on roadways, arguing
that it was not the intent of the legislature to extend the recreational user statute to
accidents occurring on roadways. Id. at *2. In reaching its decision, the court
noted that the roadways at issue were often used by the public, including bicycle
riders. The court ultimately determined that the presence of manmade
improvements did not remove immunity, noting that recreational premises usually
include such features as walks, fences, and other improvements. Id. at *5. Finding
that the essential character of the property, as a whole, was held open to the public
without a fee for recreational purposes, the court found that recreational immunity
applied. Id. at *6. The court further found that it need not consider Zachel’s
alternative argument regarding political subdivision tort liability. Id.
{¶36} In Stone v. Northmont City Schools, supra, a bicycle rider was injured
when he ran into a rope that had been strung across a bike trail by a school
employee/coach in preparation for a cross country meet that was to be held the
next day. Stone at ¶ 2, 19. Stone argued that once the rope was installed to block
the trail, the trail was closed to the public and the “essential character” of the
Mahoning App. No. 22MA8 26
premises changed so as to render R.C. 1533.181(A) inapplicable. Id. at ¶ 17.
Stone also argued that the trail, at that point, “went from a free public trail * * * to
a private race where the school charges the patrons a fee.” Id. at ¶ 18. Stone
asserted that his accident occurred as a result of the negligent actions of the school
employee, “and not a condition of the premises.” Id. at ¶ 19. However, the Stone
court ultimately found that at the time the rope was installed, the rope became a
“condition of the premises” and that “consistent jurisprudence precluding liability
pursuant to R.C. 1533.181(A)(1) ‘involves injuries arising from the condition of
the premises.’ ” Stone at ¶ 38-39, quoting Combs v. Ohio Dept. of Natural
Resources, Div. of Parks, 146 Ohio St.3d 271, 2016-Ohio-1565, 55 N.E.3d 1073(which involved a park user sustaining an injury from a rock that was thrown from
a lawnmower being operated by a park employee). The injury that occurred in
Combs did not involve a condition of the premises, but rather it occurred as a result
of the negligence of a park worker who mowed over loose stones. Combs at ¶ 20.
Here, it can also be said that Farris’ injury was caused by a condition of the
premises (pothole/shade from trees), rather than negligence by the park or its
employees. As stated in Stone and as set forth above, the recreational user statute
precludes liability for injuries that occur as a result of the condition of the
premises. See Stone ¶ 32, citing Combs at ¶ 16.
Mahoning App. No. 22MA8 27
{¶37} Although we believe that Milliff, Finley, Shutrump, Price, Zachel, and
Stone make clear that roadways may constitute “premises” for purposes of R.C.
1533.181(A)(1) and that the existence of a roadway within a park that is open to
non-recreational vehicular travel does not necessarily alter the essential character
of a park, we are mindful of a problematic statement made by the Supreme Court
of Ohio in Pauley v. Circleville, 137 Ohio St.3d 212, 2013-Ohio-4541, 998 N.E.2d
1083. In Pauley, the Court accepted a discretionary appeal on a single proposition
of law as follows: “Recreational user immunity does not extend to man-made
hazards upon real property that do not further or maintain its recreational value.”
Id. at ¶ 1. The Pauley case did not involve an injury occurring on a roadway,
instead it involved a sledding accident that occurred in a city park. Id. at ¶ 4-6.
The city had been offered excess dirt from a nearby construction project and chose
to store mounds of dirt at the city park. Id. Pauley was injured when he struck a
railroad tie that was embedded in one of the mounds of dirt. Id. When discussing
the analysis to be used in considering the “essential character of property” for
purposes of whether recreational user immunity applies, the Court included a
reference to the Brinkman case for the proposition that “even though sidewalks and
streets are often used for recreational purposes, such premises are not protected by
recreational user immunity because they do not have the essential character of land
held open to the public for recreational use.” Id. at ¶ 16. However, as set forth
Mahoning App. No. 22MA8 28
above, in Brinkman an injury occurred when a child came in contact with a broken
street sign that was located in a city street right-of-way that bordered land owned
by the board of education. Brinkman, supra, at 431. Thus, the Brinkman case did
not actually involve an accident that occurred on a roadway contained within a
park district, but rather it occurred in a grassy area adjacent to both a city street and
school property. Thus, because both Brinkman and Pauley are factually different
from the case presently before us, we cannot conclude that the reasoning in either
case directly conflicts with our reasoning.
Summary
{¶38} The evidence presented in the case sub judice demonstrates that the
roadway at issue herein is completely contained within the park district, is
maintained by the park district, and although it is also sometimes used by the
general public for travel, Mill Creek holds the park property open to the public for
recreational purposes without a fee. Thus, we cannot conclude that the roadway,
although a manmade improvement, altered the overall character of the property as
a whole so as to convert the property from recreational property to non-recreational
property. Furthermore, the evidence presented indicates that Farris was engaged in
a recreational activity at the time he was injured, thereby meeting the definition of
“recreational user” contained in R.C. 1533.18 and satisfying the requirements of
R.C. 1533.181. Thus, because the character of the property is consistent with the
Mahoning App. No. 22MA8 29
definition of “premises” set forth in R.C. 1533.18 and because Farris was engaged
in a recreational activity and was a “recreational user” at the time of the accident,
we conclude that there is no genuine issue of material fact regarding his status as a
recreational user. Therefore, Mill Creek is immune from liability under the
recreational user statute, or R.C. 1533.181, and the trial court erred in denying Mill
Creek’s motion for summary judgment based upon this theory of immunity.
Accordingly, because we find merit to this assignment of error, Mill Creek’s first
assignment of error is sustained, the judgment of the trial court is reversed, and this
matter is remanded to the trial court with instructions to issue summary judgment
in favor of Mill Creek.
ASSIGNMENT OF ERROR II
{¶39} In its second assignment of error, Mill Creek contends that the trial
court incorrectly held that it was not entitled to statutory immunity pursuant to
Chapter 2744 of the Ohio Revised Code. A review of the record indicates that Mill
Creek raised this as an alternative argument in its motion for summary judgment
and also raises it as an alternative argument on appeal. However, in light of our
disposition of Mill Creek’s first assignment of error, the arguments raised under
this assignment of error have been rendered moot. Thus, we need not address the
arguments raised under this assignment of error. See Moskalik v. Mill Creek
Mahoning App. No. 22MA8 30
Metroparks, supra, at ¶ 42; Zachel v. Mahaney, supra, at *6; Stone v. Northmont
City Schools, supra, at ¶ 40.
JUDGMENT REVERSED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and costs be assessed to
Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Mahoning County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J., & Hess, J.: Concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
This document constitutes a final judgment entry.