Author: TLRoot

Case of the Day – Tuesday, January 6, 2026

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RESTRICTIVE COVENANTS ARE CHILD’S PLAY

I have previously reported harrowing tales of homeowner woe at the hands of a homeowners’ association. You remember the kind of officious, annoying kid in junior high school who was on student council? Well, he grew up and is on the HOA board.

In today’s case, two well-heeled homeowners bought the house next door, planning to demolish it and turn the property into a playground for their kids. And to think you couldn’t find a Barbie Dreamhouse left in the store for your offspring this Christmas…

But the property manager for the HOA that oversaw the development – seeking to enforce a deed restriction that required prior approval before “changes or alterations” – got a court to issue an injunction.

Injunctions aren’t easy to come by. The biggest hurdle is that the HOA had to convince the court that it was likely to prevail in the case. Homeowners Bob and Kathy Guzzetta argued that “change and alteration” was different from “demolition.” They had not changed anything that existed. Instead, they had simply taken away something, leaving nothing.

The grant of the injunction suggested to us that the court found their argument to be a “dead-bang loser.” It seemed like game, set, and match for the HOA – well before the first day of trial.

But trials have a way of turning losers into winners. The Guzzettas, undeterred by the pall of imminent defeat a preliminary injunction cast over their case, put their evidence on anyway. And they won.

The court, it seems, was no fan of restrictive covenants. Such covenants, the court rightly observed, “implicate contractual rights, such as the right of a buyer and seller to enter into a binding contract, but they also implicate property rights, such as one’s right to the free use of her land. In situations where these two rights conflict, the law favors the free use of land.”

Applying that standard, the court said, the analysis was simple. “Changes and alterations” required prior consent, but the Guzzettas were right: taking something away was not the same thing as changing or altering. After all, nothing else in the covenants required that a house even be on the lot. It was just that if there was a house on the lot, the HOA had to approve it. Requiring prior approval of something did not imply that prior approval of nothing was required as well.

Just a little something for the kiddies…

Service Corp. of Westover Hills v. Guzzetta, 2009 Del. Ch. LEXIS 221 (Del.Ch., 2009). The Guzzettas had been homeowners in Westover Hills for 11 years when they bought the property next to theirs. The adjoining property included a 1943 colonial-style house and mature maple and oak trees. The Guzzettas intended to raze the house to expand their backyard for their children.

However, properties in Westover Hills are subject to deed restrictions that bind all owners within the development. One of the restrictions provides that “no building, fence, wall or other structure shall be commenced, erected, or maintained, nor shall any addition to or change or alteration therein be made, until the plans and specifications, showing the nature, kind, shape, height, materials, floor plans, color scheme, location and frontage on the lot and approximate cost of such structure shall have been submitted to and approved in writing by” Service Corp., the property manager.

Service Corp. had the right to refuse to approve any such plans or specifications that it found not suitable or desirable for aesthetic or other reasons. Since 2004, Service Corp. has used an Architectural Review Committee to initially review proposals, request additional information as necessary, and make recommendations to the Service Corp. board. Service Corp. had approved demolitions before, as well as landscape plans.

The Guzzettas proceeded with their plans without obtaining approval, and Service Corp. sought an injunction prohibiting the demolition of the home and landscaping. The trial court granted a preliminary injunction until a trial on the merits could be held, but at trial it reversed course, finding in favor of the Guzzettas. 

Held: The Guzzettas didn’t need HOA approval to demolish the house next door. The restrictive covenant at issue held that “no building, fence, or wall or other structure shall be commenced, erected or maintained, nor shall any addition to or change or alteration therein be made” until the plans and specifications were approved by the HOA. Service Corp. argued that the Guzzettas’ planned demolition was a “change” within the plain meaning of that word. But the court, resorting to the dictionary, concluded that an “alteration” to a structure might encompass a new paint scheme. At the same time, a “change” was more radical, such as the gutting of a house followed by a complete refurbishment. While either of these terms might conceivably include a demolition, that interpretation made no sense when read with the requirement in the same covenant that the HOA must approve “the plans and specifications, showing the nature, kind, shape, height, materials, floor plans, color scheme, location and frontage on the lot and approximate cost of such structure…”

The court held that “the complete demolition of a structure so that it is replaced only by a grassy field would result, by necessity, in a change that has no ‘height, shape, materials, floor plans, color scheme, location or frontage’.” After all, how can the HOA approve plans for a grassy field? The third clause, the court held, “narrows the broad coverage of the second clause. Read together, the second and third clauses apply only to ‘changes’ to an existing structure, where some structure will remain afterward. Accordingly, because the Guzzettas do not propose to leave any structure on the Property following demolition, the second and third clauses of Article V do not require them to submit their plans for the complete demolition of the adjacent house to Service Corporation for approval.”

Service Corp. argued that the drafters obviously intended to prevent homeowners from making such a radical change to a property as the Guzzettas proposed without the consent of the organization representing the community. But the Court held that the restrictive covenants did not require that a structure be erected on every plot, but only that the plans be approved if a building were constructed. “Presumably,” the Court drily observed, “vacant lots could thus exist in Westover Hills.” In fact, one of the covenants provided that “free or open spaces shall be left on every plot built upon, on both sides of every residence erected thereon, which free spaces shall extend the full depth of the plot.” 

The lesson here is that because restrictive covenants tie a property owner’s hands, limiting what he or she can do with property that has been bought and paid for, a court is likely to construe such covenants strictly against the organization that imposed them. It’s a fair bet that if the writers of the covenants had ever imagined that homeowners like the Guzzettas would tear down a house in favor of – horrors! – green open space, the restrictive covenants would have required the hobnail boots of the HOA to march over the plans ahead of time. But no one imagined such a matter would arise, and the court was not about to rewrite the covenant to pull the HOA’s chestnuts out of the fire.

The game may have gone to the HOA. But the set and match belonged to the Guzzettas.

– Tom Root

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Case of the Day – Monday, January 5, 2026

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RECKLESS ABANDON

Blink-182 – You have any daughters? Look what they could bring home ...

     Blink-182 – What fine-looking lads!  You have a teenage daughter? Speaking of recklessness, look what she could bring home …

“On and on, reckless abandon, something’s wrong, this is gonna shock them …” The velvet tones of Blink-182, so reminiscent of the Kingston Trio!

OK, not velvet tones, just some teenage angst and a little toilet humor. But today’s protagonist might have had the punk rockers blaring on Spotify while he was wielding his chainsaw with… well, with reckless abandon.

One day last winter, complains loyal reader Jeff Phylum of Maple Falls, Ohio, he went to work as usual. In the middle of the day, his neighbor called him to report that some tree cutters had cut the top 60 feet off his prize 75-foot-tall silver maple tree. His neighbor, the kind of nice old lady who every kid in the ‘hood can’t stand, had carefully noted the name of the tree trimming service in a little spiral notebook. She gave the name to Jeff, and Jeff called the service.

“Ha, ha,” the owner exclaimed, “what a gaffe! Boy, is our face red! We had an order to cut down a silver maple, and we went to the wrong house! Isn’t that just the funniest thing?”

Jeff didn’t think so. The owner sent a representative over to look at the forlorn 15-foot trunk still standing, admitted the crew had come to the wrong address, and offered $1,000 to forget the whole thing. But Jeff loved that tree, which shaded the house, provided nesting for squirrels and birds, and offered a canopy for family picnics. Jeff’s arborist figured that replacement of the tree with the most comparable silver maple available would cost somewhere around $25,000.

Section 901.51 of the Ohio Revised Code lets an injured party collect treble damages from a party who “recklessly cut down, girdle, or otherwise injure a vine, bush, shrub, sapling, tree or crop growing on the land of another.” Jeff wondered whether the tree trimming service had been reckless and whether his $25,000 might be tripled to $75,000. If it did, he might even afford a fill-up.

The tree service owner was red-faced ... somehow, that didn't make Jeff feel much better.

The tree service owner was red-faced … but somehow, that didn’t make Jeff feel much better.

A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

In Collins v. Messer, a woman hired a tree trimmer to clear some of her land. She told the trimmer to only clear to a fencerow, which she later said she believed was the property line. It was not, and the other property owner was unhappy. Mrs. Messer tried to settle with him, but things broke down and led to a lawsuit.

The trial court found Mrs. Messer’s testimony about her mistaken belief that the fence marked the boundaries credible, as well as her statement that she told the trimmers not to go beyond the fence. Based upon those findings, the trial court determined that Messer’s actions were not reckless and she was not liable for treble damages under the statute. In assessing damages for the trespass, the court held that the measure of damage is the cost of reasonable restoration of property to the pre-existing condition or to a condition as close as reasonably feasible without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

What does this mean for Jeff? Whether the tree trimmer was reckless depends on what led him to the wrong house, and what steps he might have taken to verify the address. Cutting down a healthy 75-foot-tall hardwood shade tree is a pretty final act. The industry standard directs the tree-trimming employee who performed the estimate and pre-work inspection to be on-site when the work begins. The irrevocability of cutting down a large tree on a residential lot in the city is such that the trimming company is presumed to have understood the known risk that if the work was performed at the wrong house, the consequences would not be pretty.

One might think that the tree-trimming company would want to settle this one for the cost of restoration rather than roll the dice on whether it will have to pay triple that amount. It is pretty clearly liable for the blunder. When its best hope is to convince a jury that the blunder was just negligence, there isn’t much upside in litigation. As Ronald Reagan once said, “If you’re explaining, you’re losing.”

Collins v. Messer, 2004-Ohio-3007 (Ct.App. Butler Co., June 14, 2004) 2004 Ohio App. LEXIS 2666, 2004 WL 1301393 – Collins sued his neighbor, Messer, for having trees and vegetation removed from Collins’ residential property.

The rear of Collins’ home abuts the rear of Messer’s property in a residential subdivision. Mrs. Messer hired Wilson Garden Center to clear vegetation up to an old farm fence, which she thought was the property line. She was not present when the Garden Center employees cleared the vegetation. Mrs. Messer had never met Mr. Collins, and she didn’t speak to him before the Garden Center performed the work. The vegetation, with the exception of a few trees, was cleared up to and beyond the farm fence at a time when neither party was at home. It turned out that Messer’s property line did not extend to the old farm fence and that most of the vegetation cleared was on Collins’ property. Mr. Collins testified that he was “devastated” when he learned of the destruction of the vegetation.

Collins and Messer split the $1,647.91 cost of hiring a landscaper to plant some pine trees in the area between the properties, but the relationship between the parties deteriorated during the year that followed. Finally, Collins sued Messer in trespass, seeking treble damages under O.R.C. §901.51.

Treble damages ... when

Treble damages … when “uh-oh” just isn’t good enough.

Held: The Court found that the evidence was sufficient to support the finding that Mrs. Messer’s actions were not reckless, and thus Mr. Collins was not entitled to treble damages. She testified that she was mistaken in thinking the fence constituted the boundary, and that she never told the Garden Center workers to go beyond it. Mr. Collins had no evidence to rebut Messer’s claim of mistake, and the trial court may have been swayed by Mrs. Messer’s willingness to share the cost of the mistake before things deteriorated into a lawsuit.

Also, because the parties had already agreed on splitting the costs of planting replacement trees, Mr. Collins wasn’t entitled to additional trespass damages for loss of vegetation. In assessing damages for the trespass, the trial court held that the measure of damage is the cost of reasonable restoration of property to the pre-existing condition or to a condition as close as reasonably feasible without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

The appeals court agreed with the trial court that Mrs. Messer compensated Mr. Collins for his damages by paying $823.00 for the pines planted on Mr. Collins’ land.

– Tom Root
TNLBGray

Case of the Day – Friday, January 2, 2026

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A “READILY APPARENT” THUMP

journeyends140312A great philosopher perhaps put it best: a very long journey can sometimes end suddenly… and rather badly.

Howie Conine should have had the Despair, Inc. “Ambition” poster on his wall, where he could have contemplated its message. He surely could empathize with the hapless salmon. He and his wife had their journey end one rainy day on Washington State Route 524 – suddenly and very, very badly. A redwood tree on County of Snohomish land – the hazardousness of which was “readily apparent” – fell on their car with a readily apparent thump.

The law of the jungle gives the poor king salmon no right of appeal, no habeas corpus, no forum for damages suffered when her trip upstream ends so precipitously in the jaws of an ursus arctus horribilis. Fortunately for the Conines, the law of Washington State was more hospitable after the tree fell onto their passing car (with them in it). If anything, it was a perfect storm for them: they possessed evidence that the dangerous condition of the tree was “readily apparent,” they were in a notoriously friendly plaintiff-friendly, and they had two defendants to choose from, both of which were governments and thus “deep pockets.”

But from whom to collect? The State of Washington, the government that, the Conines argued, had a duty to keep the highways safe from falling trees? Or perhaps the County of Snohomish, the government that, the Conines averred, had a duty to protect passers-by from dangers arising from trees on its land?

This is America – land of the free and home of the litigious! Why not sue both?

That is precisely what the Conines did.

angryjudge140312Unfortunately, they ran into an uncooperative trial court, one which held that neither Washington State nor Snohomish County had any obligation to inspect the trees along the road, even one with “this readily apparent hazard.” The trial judge threw the Conines out of court. They had more luck with the Court of Appeals, which reversed the trial court’s decision and remanded the matter for trial on the merits. There was enough evidence – chiefly from the Conines’ hired-gun expert – that the tree was obviously dangerous to let the case go to trial.

The lesson: when you need a good expert, there’s just nothing else that will do.

Conine v. County of Snohomish, 2007 Wash. App. LEXIS 1102, 2007 WL 1398846 (Ct.App. Wash., May 14, 2007). Howard and Karen Conine were driving on State Route 524 when a red alder tree standing on an embankment on the west side of the road fell on their car. The tree had been located about 10 feet outside the State’s right-of-way on land owned by Snohomish County. The Conines sued the State of Washington for failure to maintain the state highways in a safe condition and the County for failure to remove an obvious hazard from its property.

The Conines’ arborist testified that during the 6-12 months immediately preceding the tree’s failure, the tree’s appearance should have put anyone looking at it on notice that it was dead and decaying. The arborist said the tree was probably leaning 10 to 15 degrees downhill toward the road and would have been in the highest-risk category due to its condition and proximity to a public right-of-way. The DOT’s maintenance technician who removed the tree after the accident said the tree’s “root ball had come loose from the soil owing to the very wet conditions we had in January 2003.”

The trial court held that neither the State nor the County had a “duty to look for this readily apparent hazard” and granted summary judgment to the State. The Conines appealed.

Held: The summary judgment was reversed. The State’s liability to users of a road is predicated upon its having notice, either actual or constructive, of the dangerous condition that caused injury unless the danger was one it should have foreseen and guarded against.

The Conines conceded that the State did not have actual notice, but they argued that the tree’s visibly dangerous condition created constructive notice. The Court found that the question to be answered was whether, for constructive notice, the State had a duty to look for a readily apparent hazard. Although the Washington Supreme Court had held in another case that where the tree was on a remote, mountainous, sporadically traveled road, a high threshold for constructive notice of danger was needed to trigger a duty to inspect and remove a dangerous tree. But here, the road was a state highway in a populated area, and the risk to the traveling public shifted the risk analysis. What’s more, in the other case, the Supreme Court found that the tree that fell was no more dangerous than any one of the thousands of trees that lined mountain roads. By contrast, the Conines’ expert testified that the tree that fell was obviously a hazard. The differences, the Court said, precluded a finding that the State lacked constructive notice as a matter of law. Constructive notice that a tree was dangerous gives rise to a duty to inspect. Thus, summary judgment was improperly granted on the basis of no duty to inspect.

treefalloncar140212The Conines also contended that Snohomish County faced liability as the landowner of the property upon which the tree stood because the owner of land located in or adjacent to an urban or residential area has a duty of reasonable care to prevent defective trees from posing a hazard to others on the adjacent land. The County argued that it had no such duty because the tree was a “natural condition of the land.”

The Court held that when the land is located in or adjacent to an urban or residential area and when the landowner has actual or constructive knowledge of defects affecting his trees, he has a duty to take corrective action. The area in question was next to the City of Lynnwood and zoned urban residential. Thus, it was urban in character. The Conines produced expert evidence that the subject tree was obviously dead or dying and leaning for two years, that it looked like a forked snag and lacked fine or scaffold branches. This evidence, the Court said, created an issue of material fact as to whether the tree was in a defective condition and the condition was of sufficient visibility and duration to give the County constructive notice of a potential hazard.

– Tom Root

TNLBGray

Case of the Day – Wednesday, December 31, 2025

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DOING NOTHING MAY BE A VERY GOOD OPTION

Yesterday, we considered whether my friend, Kirk Piper, was on a slippery slope in letting the sledding public have the run of Logan’s Hill. This peculiarly good winter coasting venue happened to come with the property on which he lived. Being a guy who is comfortable wearing both a belt and suspenders, Kirk had a deal with the City pursuant to which if he permitted recreational use of the hill next to his house, City liability insurance would cover such use of the hill. But, he wondered, what would happen if liability exceeded the insurance limits, or the City dropped coverage, or the Finance Director forgot to mail the premium, or some other calamity led to his being in the defendant’s dock as a result of what happened to the sledders using the hill?

Between cups of mulled wine at Kirk’s Christmas party last week, I told him about the wonders of Ohio’s recreational use statute. Sledding seemed to me to be the type of recreational activity that should be covered by § 1533.181 of the Ohio Revised Code. Naturally, my interest was piqued, and unsurprisingly, I found that the question had already been asked and answered in court.

But, as I noted yesterday, there is an important limiting factor. Land used for recreational purposes often is undisturbed, full of groundhog holes, dead trees, unmarked bogs, crocodile dens, and the like. In fact, the land’s undisturbed nature is often what makes it attractive for recreational use to begin with. For that reason, the recreational use statute exempts guys like Kirk from liability for the condition of the land on which the public may take its recreation.

Hogan’s Hill, for example, has a water hazard, a creek that is easily reached by the faster sleds. Many kids have had to bail out just before sleds topple over the bank into the thin ice and cold water. Suppose Hogan’s Hill was an amusement park attraction, with the creek being a feature rather than a bug. In that case, you can be sure that liability for damaged sleds and injured kids resulting from crashing into the creek would attach to the park operator. But because it is a natural feature of Hogan’s Hill, users are the captains of their own ship.

But what if Kirk, in a well-intentioned effort to improve Hogan’s Hill for the public, decided to bulldoze a few moguls or reroute the creek through some concrete culverts? And halfway through the work on a winter’s day. he parks his bulldozer at the bottom of the hill to go inside for a cup of that mulled wine? And while he’s gone, little Johnny and Judy race down the hill on a toboggan and collide with the dozer’s blade?

Or say Kirk used the dozer to dig a 10-foot deep pit just before the creek to stop sleds before reaching the water, and Johnny and Judy run their toboggan into the hole?

In a case like that, the liability issue is murkier. When it comes to the hill, doing nothing to alter or repair its natural conditions – even if the alteration makes perfect sense – might not just be an option, but even perhaps a better option.

Combs v. Ohio Dep’t of Natural Resources (2016), 146 Ohio St. 3d 271. Richard Combs was celebrating his birthday at Indian Lake State Park, which is open to the public without an admission charge. He spent the night fishing and early the next morning walked to Pew Island, where the fishing is better. As Rich walked across the causeway to Pew Island, Jerry Leeth, an ODNR employee, was using a boom mower to cut weeds and brush along the lakeshore. One of the mower blades threw a rock that struck Rich in the eye and face, and caused serious injuries.

Rich sued ODNR in the Court of Claims, alleging that Jerry negligently operated the boom mower and caused his injury. The Court of Claims granted ODNR’s motion for summary judgment, holding that because Rich was a recreational user, ODNR had no duty to keep the park safe for his entry or use, and his negligence claim was thus barred as a matter of law.

The court of appeals reversed the decision, holding that although the recreational user statute abolished a property owner’s duty to keep its premises safe for use by recreational users, it provides immunity only for injuries caused by the defective condition of the premises. The appellate court held that because Rich claimed that he was hurt by an ODNR worker’s negligence and not by a defect in the premises, the recreational user statute did not apply.

Richard appealed to the Ohio Supreme Court.

Held: ODNR was not entitled to immunity under the recreational user statute ORC § 1533.181, because Rich’s injuries did not arise from a defective condition of the premises, but rather from negligent mowing by an ODNR employee, and, as such, ORC § 1533.181 did not apply.

The Court noted that ORC § 1533.181, the recreational user statute, provides that no landowner owes any duty to a recreational user to keep the premises safe for entry or use or extends any assurance in that regard. Under the statute, a landowner is not liable to a recreational user for injuries caused by the defective condition of a recreational premises.

At common law, a landowner owed a duty to those who entered the premises, depending on whether the people were invitees, licensees, or trespassers. A landowner owed an invitee – someone the landowner had invited onto the property – the duty to exercise ordinary care to render the premises reasonably safe. The landowner owed no duty, however, to a trespasser or licensee upon the land except to refrain from wanton, willful, or reckless misconduct which is likely to injure him.

The common law also recognizes that a landowner, being aware of the presence of a licensee, or even a trespasser, is required to use ordinary care to avoid injury to him arising from the active negligence of such owner or his servants. The duty to exercise such reasonable care arises after the landowner knows or should know that a licensee or trespasser is on the land.

The recreational user statute amends the common law rule. Instead of common law distinctions based on the status of the person on the land, the duty owed depends solely on whether the person using the property qualifies as a recreational user. The statute limits landowner liability for injuries to recreational users in three ways: (1) no landowner owes any duty to a recreational user to keep the premises safe for entry or use; (2) granting permission to enter the property is not an assurance that the premises are safe; and (3) a landowner is not liable for injuries caused by the act of a recreational user.

But the statute has its limits. The Court observed that the legislature could have excused a landowner from any duty whatsoever to any recreational user, “but tellingly, it did not do so.” Instead, the statute does not abrogate a landowner’s common law duty to exercise reasonable care to avoid negligently injuring those on the premises, and – in the absence of language clearly showing the intention to supersede the common law – the existing common law continues in full force.

Accordingly, the Court ruled, the recreational user statute does not limit a landowner’s liability for a negligently inflicted injury that does not arise from the condition of the premises. In this case, Rich’s injuries did not arise from a defective condition of the premises but rather from Jerry’s alleged negligent operation of the mower. ORC § 1533.181 simply does not apply in these circumstances.

– Tom Root

TNLBGray

Case of the Day – Tuesday, December 30, 2025

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SLIP SLIDING AWAY

A few nights ago, my bride of 46 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 “Hogan’s Hill.” Over a distance of 90 feet from the top of the hill to the bottom, the hill falls 30 feet, a 33% grade. Ask any 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, Hogan’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.

Hogan’s Hill has been my hometown’s sledding hill of choice – according to our local historian – for over a century. When my wife’s father was young, he sledded on the Hill. So did my wife, and 30 years later, so did our kids. This year, our grandsons would have gotten a run (on a sled with Grandpa Me) down Hogan’s. The weather wasn’t especially willing at 61º, however, despite the promise of a monster winter storm only a few states away.

Now the rub: Hogan’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 Hogan’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 the event of an accident in excess of the City’s policy, or whether the City could demand contribution from him in the event that something happened on the hill that insurance refused to cover.

Fortunately for Kirk, I read this column regularly (a necessity, because I write it). 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 Hogan’s Hill for sledding?”

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

Heavens, no, Kirk. Keep Hogan’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 sledders 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 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 Hogan’s Hill. We’ll see why doing nothing is not only an option but the smart one, tomorrow.

– Tom Root

TNLBGray

Case of the Day – Monday, December 29, 2025

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SUED FOR NOT HAVING LAWS AGAINST SUCH A THING

Looking for the deep pocket is a time-honored tradition in personal injury law. Today’s case, dating from 1931, proves that point.

The first rule of plaintiffs’ advocacy … look for the deep pockets.

A young boy and his uncle were riding in a one-horse open wagon down the center of a public street. A homeowner had hired a couple of guys to cut down a tree along the street. For whatever reason (but probably because the workers were knuckleheads), the tree fell onto the wagon, injuring the occupants.

“Straightforward enough,” you say, “so where’s the catch?” It’s here: before cutting the tree, the contractors went to the mayor to ask about permits. The mayor, a dentist by trade, advised that there were no teeth in the local ordinances and no permit was needed to cut down a tree.

He was right, not that that mattered much. The injured boy’s guardian sued the city for not making sure that the tree cutter cut the tree down safely. Reduced to its essence, the claim seemed to say the City had money, and no other defendant did, so it must be liable somehow.

A jury agreed, but the Supreme Court reversed.

There can be little doubt that the City was sued in this early Depression-era tale, because the City was the only party likely to be able to pay a judgment. Finding someone with money is always a good idea in a personal injury case, but there are technicalities – such as the party with money should somehow be liable to the victim – that should be observed.

Here, the theory seemed to be that the City should have had laws against unsafe tree removal, and its failure to have such ordinances on the books somehow made it responsible for the plaintiff’s injury.

Armstrong v. Waffle, 236 N.W. 507 (Supreme Court, Iowa, 1931). Three-year-old Biff Armstrong sustained personal injuries resulting from a homeowner’s removal of a tree in front of his house along a city roadway. The contractor hired to remove the tree asked the mayor of the City of Marion if a permit was necessary to remove the tree. The mayor said that he knew of no permit that was needed to remove the tree, and there was no ordinance in the City of Marion governing the cutting and removal of trees.

The contractor cut the branches from the tree until he was left with a stump of some 14 or 15 feet in height. Just before the Neffs were ready to saw the tree off, and while they were working with the branches, Joe Armstrong, an uncle of the plaintiff, a drayman by occupation, drove north in a dump wagon. Joe had Reuben, a child of about 3 1/2 years old, on the seat of the wagon with him. The tree suddenly fell across the front of the wagon and crushed him and the child, breaking Joe’s leg and severely injuring the boy.

The boy’s guardian sued the landowner, the contractor and the City of Marion. The jury found in favor of the plaintiff against the City, and the City appealed.

Held: The Court found the contractor to be negligent in felling the tree, but the City of Marion was not liable.

The Court held that the City’s liability was restricted to keeping the streets open and in repair and free from nuisance. Armstrong did not allege any nuisance existed in this case, nor did he claim that the City failed in its duty in not barring travel on the street or otherwise warning him of the danger incident to the removal of the tree.

The City alleged that the claim against it pertained to a governmental function or duties of the City for the breach of which the City is not liable. The City contended that its duty related only to construction, maintenance and repair of the street and that a municipality cannot be held liable for failure to protect citizens against actions occurring on its streets for reasons other than defects therein or by reason of a nuisance.

A municipality does not guarantee its citizens against all causalities incident to humanity, and cannot be called upon to compensate a party for its inability to protect against all accidents and misfortunes. There was no ordinance in the City regulating or prohibiting the removal of the tree. The City had a right to assume that the tree’s owner and his agents would exercise a proper degree of care to prevent injury to people on the street at the moment the tree fell.

– Tom Root

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