March 2014 - Parks & Recreation - 32

L AW R E V I E W

the city accepted approximately 150
to 200 truckloads, which were taken
to its maintenance facility for storage.
When that facility reached capacity,
the remaining topsoil was taken to the
park and emptied onto the ground,
where it formed two mounds approximately 15 feet high.
On the afternoon of January 24,
2007, 18-year-old Jeremy Pauley and
his friends Kevin Baisden, Danielle
Ziemer and Natasha Cox decided to
go snow-sledding at the park. Pauley
and Baisden began sledding at about
5 p.m., while the girls looked on. At
approximately 6 p.m., as it began getting dark, Pauley decided on a new location for his last sled run, which was,
in fact, one of the mounds of dirt that
had been stored at the park by the city.
Baisden moved the car so that its headlights illuminated the hill. Although
there were other sled tracks on the
mound, this was the first time that Pauley had sledded down it. In his deposition, Pauley asserted that " [t]o the very,
very far left side [of the hill] away from
where I went sledding, there was a little
bit of brush or something, but nothing
around where I went down. "
Pauley claimed that as he sledded
down the hill, he " hit an immovable
object " and " instantly went numb "
and could not move his body. Realizing that Pauley was critically injured,
Baisden called 911. At the time, Baisden did not notice any obstacle in
Pauley's path. However, the day after
the accident, Baisden went back to
the park and observed an object that
looked like a railroad tie in the area
where Pauley was injured. Pauley
suffered a broken neck, which caused
him to become a quadriplegic.
Recreational User Immunity
In his complaint, Pauley alleged " the
city acted negligently, recklessly and
30

Parks & Recreation

wantonly in dumping debris in the
park, which resulted in a physical defect that caused Jeremy's injuries. " In
so doing, Pauley contended the " waste
and debris created an inherently dangerous situation which no user of the
park could have anticipated and thus
substantially altered the nature and
characteristic of the public property. "
The trial court found the city was
immune under the state RUS, R.C.
1533.181. The court of appeals affirmed. On appeal to the state supreme
court, Pauley claimed " the recreational user immunity statute is designed
to preclude the right to recovery of
civil damages only in specific instances. " Accordingly, as characterized by
Pauley, the state RUS, R.C. 1533.181,
" does not apply when a property owner makes the property more dangerous
without promoting or preserving recreational activities. " In response, the
city argued that the state RUS established the following " bright-line rule " :
If a premises is freely open to the
public for recreational purposes and
a person is injured while using the
premises for a recreational purpose,
the landowner has no duty to that
user to keep the premises safe.
According to the city, the effect of
Pauley's appeal was to " improperly ask
this Court to judicially create an exception or limitation to recreational immunity that does not exist in the Statute. "
As cited by the state supreme court,
the state RUS, in pertinent part, provided as follows:
No owner, lessee or occupant of
premises: (1) Owes any duty to a recreational user to keep the premises safe for
entry or use; (2) Extends any assurance
to a recreational user, through the act
of giving permission, that the premises are safe for entry or use; (3) Assumes
responsibility for or incurs liability for
any injury to person or property caused

| M A R C H 2 0 1 4 | W W W. N R PA . O R G

by any act of a recreational user...
(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.
(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.
In addition, the state supreme court
noted that " premises " under the state
RUS also included " land owned by
municipalities and the state. "
According to the court, the " essential character of the property " would
determine " whether immunity applies. " In particular, the court noted
that " the property must be held open
to the public for recreational use, free
of charge. " In addition, based upon
the recreational activities listed in
the state RUS, the court found " [t]he
character of the premises envisioned
by the recreational user statute involves 'the true outdoors.' "
Most of the recreational activities
enumerated in R.C. 1533.181(B) are
generally conducted in " the wide open
spaces, " such as parks or wilderness
tracts... Recreational premises typically include elements such as land, water,
trees, grass and other vegetation...
The types of recreational activities that qualify as a recreational use
are diverse. R.C. 1533.181(B) lists



March 2014 - Parks & Recreation

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