Summary
drowning at a designated swimming area at a lake
Summary of this case from Combs v. Ohio Dep't of Natural Res.Opinion
No. 77-610
Decided April 19, 1978.
Court of Claims — Wrongful death action — Duty of state to recreational users of land — Exempt from liability, when — R.C. 1533.181(A) construed.
APPEAL from the Court of Appeals for Franklin County.
As administratrix of the estate of Willie Joe McCord, Jr., appellee, Armelia McCord, filed a complaint for wrongful death in the Court of Claims on June 2, 1976. The affidavits of the parties establish that on June 20, 1975, appellee, accompanied by her nine-year-old son, Willie Joe McCord, Jr., visited Punderson State Park, in Geauga County, a public recreational facility maintained by the state of Ohio at which public swimming is permitted without the payment of a fee. Appellee alleges that towards evening on that date, Willie Joe McCord, Jr., was found drowned in the lake located within Punderson State Park, and that Patricia Flynn, a lifeguard employed by appellant, the Ohio Division of Parks and Recreation, was on duty in the park at the time of the drowning.
The complaint alleges further that appellant and its employees were negligent in that they "failed to fulfill their duty of reasonable care to supervise and watch over the minor children known to be swimming in said lake; * * * [failed] to supervise the operation of the lake or the persons swimming therein; * * * [failed] to have adequately trained lifeguards at the lake for the protection and supervision of persons swimming therein; * * * [failed] to train lifeguards adequately before permitting them to assume such a role at the lake; * * * [failed] to have proper guidelines and or instructions for lifeguards assigned to the lake * * *." The complaint also alleges that, at the time of the drowning, Patricia Flynn "was informed by certain friends of Willie Joe McCord, Jr., that he had disappeared underwater, in the area informants and Willie Joe McCord, Jr., were swimming"; that she "refused to act or make any investigation of Willie Joe McCord, Jr.'s disappearance"; and that she "failed to make any investigation of * * * [his] disappearance until approximately 30 minutes after having been first informed * * *."
Appellant moved the court to dismiss the action pursuant to Civ. R. 12(B)(6), or in the alternative, to grant summary judgment in its favor. The Court of Claims sustained appellant's motion to dismiss on the ground that under R.C. 1533.181 no owner of premises, including the state of Ohio, owes any duty to a recreational user to maintain the premises in a safe manner for entry or use.
Appellee appealed this order of dismissal to the Court of Appeals for Franklin County, which, on March 31, 1977, reversed the order and remanded the cause to the Court of Claims, holding that appellee had stated a claim against appellant and that "there was an issue of fact raised concerning the negligence of an employee attributed to an employer which is applicable to the State of Ohio."
This cause is now before this court upon the allowance of a motion to certify the record.
Messrs. Rogers, Horton Forbes, Mr. Earle C. Horton and Mrs. Mabel M. Jasper, for appellee.
Mr. William J. Brown, attorney general, and Mr. Melvin D. Weinstein, for appellant.
Prior to the enactment of the Court of Claims Act, R.C. Chapter 2743, the state enjoyed immunity from tort liability. The state has provided statutory means of adjudicating certain claims against it under R.C. 2743.02(A), which reads, in pertinent part, as follows:
"The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, subject to the limitations set forth in this chapter."
One such rule of law "applicable to suits between private parties" is R.C. 1533.181(A), which provides that:
"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."
"Recreational user" is defined in R.C. 1533.18(B) as "a person to whom permission has been granted, without the payment of a fee or consideration * * *, to enter upon premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits."
It is clear that, under these statutes as plainly construed, the state, when viewed as if a private party, owes no duty to a recreational user of its land, such as appellee, who has paid no fee or valuable consideration.
Statutes similar to R.C. 1533.181, which abrogate the common law and do not place any duty toward recreational users upon landowners, predicate liability upon the payment of a fee and exist in a majority of the states. See Hamilton v. United States (E.D. Va. 1974), 371 F. Supp. 230; Garfield v. United States (W.D. Wisc. 1969), 297 F. Supp. 891.
R.C. 2743.02(A) does not create a new right of action against the state, but places the state upon the same level as any private party. Since R.C. 1533.181(A) precludes recovery against any landowner, the state cannot be held liable as a matter of law. If the immunity which the state has historically enjoyed is to be lifted further, it must be accomplished by the General Assembly and not by this court.
Therefore, the judgment of the Court of Appeals must be reversed and the order of the Court of Claims dismissing appellee's complaint reinstated.
Judgment reversed.
O'NEILL, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
CELEBREZZE, J., dissents.