July 2016 - Parks & Recreation - 31

recreational access at no cost to the general public. I.C. § 361604(a). In this case, the city and the school district have done that
by allocating resources in order to provide and maintain the park
for all to enjoy.
Having found " the city did not charge or receive compensation
from Hayes or the public for their use and enjoyment of the land, "
the state supreme court held the RUS was applicable under the circumstances of this particular case. In so doing, the state supreme
court held " the school district's payment of all utilities, ongoing
maintenance and scheduling of the Plummer School Park is not
a 'charge' or 'compensation' under Idaho's Recreational Use Statute. " The state supreme court, therefore, affirmed the summary
judgment of the lower court in favor of the defendant city.
Condition of Premises?
In the case of Combs v. Ohio Department of Natural Resources, 2016-Ohio-1565; 2016 Ohio LEXIS 953 (11/17/2915), the
Supreme Court of Ohio considered whether the Ohio RUS
provided immunity for injuries to a recreational user that were
caused by the alleged negligence of an employee in the course
of maintaining the premises.
On July 27, 2011, 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, which affords better fishing. As
Combs walked across the causeway to Pew Island, Jerry Leeth,
an Ohio Department of Natural Resources (ODNR) employee,
was using a boom mower to cut weeds and brush along the lakeshore. One of the mower blades hit the riprap - stones placed
along the waterline to prevent erosion - and threw a rock that
struck Combs in the eye and face and caused serious injuries.
Combs sued ODNR in the Court of Claims, alleging Leeth had
negligently operated the boom mower and caused his injury. The
Court of Claims granted ODNR's motion for summary judgment.
In the opinion of the claims court, Combs was a recreational user
at the time of his injury. Accordingly, ODNR had no duty to keep
the park safe for his entry or use and his negligence claim was
barred as a matter of law.
The Tenth District Court of Appeals reversed the decision of
the Court of Claims. In the opinion of the appeals court, the
RUS " provides immunity only for injuries caused by the defective condition of the premises. " In this particular instance, the
appeals court found the Recreational Use Statute did not apply
because " Combs claimed that he was injured by the negligence
of a park employee and not by a defect in the premises. " On appeal, the state supreme court agreed.
As cited by the state supreme court, the Ohio RUS, R.C.
1533.181, provided that " no landowner owes any duty to a recre

ational user to keep the premises safe for entry or use or extends
any assurance in that regard. " Accordingly, the court found " a
landowner is not liable to a recreational user for injuries caused
by the defective condition of a recreational premises. "
However, under the circumstances of this particular case, the
Ohio Supreme Court found injuries that " resulted from the alleged negligent operation of a boom mower " were not injuries
arising " from the condition of the premises. " As a result, the
state supreme court held " 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. "
Having found the RUS did not apply to the circumstances of
this particular case, the court found ODNR had " a duty to conduct mowing safely " and ODNR could be " held liable for the
negligence of its employees if it breaches that duty. " As a result,
Combs could proceed with his negligence claim against ODNR
in the state claims court.
James C. Kozlowski, J.D., Ph.D., is an attorney and Associate Professor in the
School of Recreation, Health and Tourism at George Mason University
(jkozlows@gmu.edu). Webpage with link to Law Review articles archive (1982
to present): http://mason.gmu.edu/~jkozlows.

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Parks & Recreation

July 2016 - Parks & Recreation

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