Case of the Day – Thursday, December 26, 2019

SLIP SLIDING AWAY

A few nights ago, my bride of 40 years and I enjoyed a pre-Christmas open house at a friend’s beautiful hillside stone house on Chestnut Street in our fair city.

To one side of the house is a steep hill about 120 feet wide known throughout town as “Logan’s Hill.” Over a distance of 90 feet from the top of the hill to the bottom, the hill falls 30 feet yards wide, a 33% grade. Ask a trucker: a 33% grade is serious business.

After reaching the bottom, the land is flat for another 150 feet, until it falls three feet into a creek.

In other words, Logan’s Hill is a perfect sledding venue. You fall like a rock for the first 90 feet of travel, and then run over fast snow for another 150 feet. A wise sledder will jump off the sled before careening into the creek.

In fact, Logan’s Hill has been my home town’s sledding hill of choice – according to our local historian – for over a century. When my wife’s father was young, he sledded on Logan’s Hill. So did my wife, and 30 years later, so did our kids. This year, our grandson will get his first run (on a sled with Grandpa, weather willing) down Logan’s Hill.

Now the rub: Logan’s Hill is part of the property on which the hillside stone house sits. That means it belongs to my friend Kirk Piper.

Any reasonable homeowner owning Logan’s Hill ought to be scared to death that dozens of strangers would freely gather on his property and race down the hill on sleds, running into the icy creek, into trees and into each other. Over some excellent beef brisket the other night, I asked Kirk about his liability.

Kirk said the City had reached an agreement with him when he bought the property that the hill would be covered by the City’s liability insurance policy. However, he was not sure whether he might have liability in event of an accident in excess of the City’s policy, or whether the City could demand contribution from him in event something happened on the hill that insurance refused to cover.

Fortunately for Kirk, I read this column regularly, and because I was enjoying his beef and beer, I felt obligated. So I asked him, “How much do you charge to let people sled?”

“Nothing,” he said.

“What have you done to fix up Logan’s Hill for sledding?”

“Not a thing,” he replied. “Should I?”

Heavens, no, Kirk. Keep Logan’s unimproved, don’t sell tickets, don’t do anything. If you follow that advice, those sledders are recreational users, and they are on their own.

Marrek v. Cleveland Metroparks Board of Commissioners, 9 Ohio St. 3d 194 (Supreme Ct. Ohio, 1984). Sally Marrek was sledding in the Hinckley Reservation of the Cleveland Metroparks System, the City’s “Emerald Necklace.” Gary Wascovich negligently struck her face with his foot. As a result, Sally suffered face and eye injuries.

Sally sued the Metroparks and Gary. The trial court granted the park district’s motion to dismiss the complaint based on Ohio’s recreational user statute and governmental immunity.

Sally appealed, and the case ended up at the Ohio Supreme Court.

Held: The Metroparks system is not protected by governmental immunity, but it is immune from liability under Ohio’s recreational use statute.

The court held that the conduct Sally claimed to be the tort of negligence involved the carrying out of previously established policies or plans, thus making the park district liable to the as private corporations and persons. Thus, Sally’s complaint should not have been dismissed on the basis that the park district was protected by governmental immunity.

However, the Court said, Sally was a gratuitous user who entered the premises for sledding, a recreational pursuit.

Section 1533.181 of the Ohio Revised Code, Ohio’s recreational use statute, holds that no owner, lessee, or occupant of premises owes any duty to a recreational user to keep the premises safe for entry or use. Under ORC § 2743.02(A), the recreational use statute applies to state-owned lands. Thus, public landowners are liable to the same extent as private landowners under this statute.

According to ORC § 1533.181(A)(1), no owner of the premises owes a duty to a recreational user to keep the premises safe for entry or use. A recreational user is defined in § 1533.18(B) as a person to whom permission has been granted, without 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 of its agencies – to enter the premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits.

Statutory immunity for landowners in situations such as this one, the Court noted, promotes the development and availability of property for recreational use and is consistent with the public policy reflected in the recreational use statute. The purpose of the statute, the Court ruled, is “‘to encourage owners of premises suitable for recreational pursuits to open their land to public use without worry about liability.'”

Sally was a gratuitous user, the Court ruled, and that she entered the premises for sledding, a recreational pursuit. Therefore, the requirements of ORC § 1533.181 were met, meaning the park district did not owe a duty to Sally, a recreational user, to keep the premises safe for use.

That’s a wonderful thing for Kirk… provided he does nothing to Logan’s Hill. We’ll see why doing nothing is not only an option, but the smart one, tomorrow.

– Tom Root

TNLBGray

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