Opinion
No. 80-35
Decided December 17, 1980.
Court of Claims — Injuries received on state-owned lands — State not immune from liability, when — "Recreational user," construed.
APPEAL from the Court of Appeals for Franklin County.
Appellant, Joan Huth, as executrix of her husband's estate, filed a negligence action in the Court of Claims against the state of Ohio, Department of Natural Resources. Appellant alleges that on July 2, 1976, she and her husband paid a fee to park their camping trailer at Mohican State Park. The Huths' site offered an electrical hookup for the trailers. Appellant alleges further that her husband was electrocuted while attempting to connect the electrical system to the trailer. She also alleges that the electrical hookup was defective and that the defect directly and proximately caused her husband to be electrocuted.
Subsequently, appellant attempted, unsuccessfully, to amend the complaint to include a products liability claim.
The Court of Claims treated the appellee's motion for summary judgment as a motion to dismiss for failure to state a claim upon which relief can be granted and dismissed the complaint. The court accepted appellee's reasoning that the state was immune from liability pursuant to the recreational user statutes (R.C. 1533.181 and 1533.18). The Court of Appeals affirmed.
The cause is now before this court upon allowance of a motion to certify the record.
Messrs. Volkema Scherner and Mr. Daniel R. Volkema, for appellant.
Mr. William J. Brown, attorney general, Mr. Melvin D. Weinstein and Mr. Steven L. Gardner, for appellee.
This cause gives us further opportunity to clarify R.C. 1533.181 and 1533.18, and to elaborate upon our discussion in Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138. Appellant raises two propositions of law before this court. She asserts that a person who pays a fee to enter park facilities is not a recreational user as defined in R.C. 1533.18(B). Secondly, she asserts that the state is liable when it merchandizes a defective product for valuable consideration and the product causes injury. We agree with appellant's first proposition.
R.C. 1533.181 provides:
"(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."
R.C. 1533.18 provides:
"As used in sections 1533.18 and 1533.181 of the Revised Code:
"(A) `Premises' means all privately-owned lands, ways, waters, and any buildings and structures thereon, and all state-owned lands, ways, and waters leased to a private person, firm, organization, or corporation, 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 thereof, to enter upon premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits."
When the Court of Appeals affirmed the Court of Claims, it relied on its decision in Moss v. Dept. of Natural Resources (February 6, 1979), Nos. 78AP-578 and 78AP-579, unreported, and held that:
"The State, which owns and operates land for recreational use is not liable to a person using the land, despite the fact that the State receives a fee or consideration for the use."
Subsequent to the appellate decision in the instant cause, this court decided Moss v. Dept. of Natural Resources, supra. While we affirmed the Court of Appeals' judgment, we rejected the reasoning that any time a fee or consideration is paid to the state, the state nonetheless remains immune.
In paragraph two of the syllabus in Moss, we stated:
"A person is not a `recreational user,' as defined in R.C. 1533.18(B), if he pays a fee or consideration to enter upon `premises' to engage in recreational pursuits." (Emphasis sic.)
We shifted the focus of the inquiry to a determination of whether the person paid a fee or consideration to enter upon the premises. In Moss, we stated, at page 142, that the appellants therein "***did not pay a fee `to enter' the parks; rather, the consideration paid went for the purchase of gas, food and for the rental of a canoe."
In the instant cause, we find that the Huths did pay a fee to enter the trailer site. Appellee attempts to equate the instant facts with those in Moss, supra, but this was not a situation where the Huths could have brought "the same items to the park that they purchased or rented while there, and still have made use of the park facilities." Moss, at page 142. Furthermore, the fee paid to enter and use the trailer site and its facilities was a "charge necessary to utilize the overall benefits of a recreational area***." Id.
We conclude that the Huths were not recreational users, because they paid an entrance or admittance fee. Since we decide the cause on this ground, it is unnecessary to decide appellant's second proposition of law. The judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER and DOWD, JJ., concur.
Although inadvertently not noting my disapproval of a portion of the syllabus law in Moss, I was not, and am not, in accord with paragraph two of the syllabus in that case as it would apply to the state of Ohio. However, on the basis of stare decisis, I must concur in the judgment herein.