by Stephen P. Bond
“Sovereign immunity” was an age-old doctrine—you may have heard of
it in law school—that, in the case of political subdivisions, was abolished by
the Supreme Court of Ohio in 1982.1 There was no small sense of
concern by local government officials at the time as to how they should proceed;
however, one defensive reaction by inventive government legal counsel was to
assert that if we have the same theoretical liability exposure as a private
enterprise, then we ought to also have the benefit of statutory immunity granted
to landowners who allow their property to be used for “recreational”
To be specific, the statute being urged was R.C. 1533.181, which
states, in pertinent part, 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.
Which is to say, where there is no duty, there can be no liability
The legislature had further defined “premises” to mean “all
privately owned lands, ways, and waters, and any buildings and structures
thereon, and all privately owned and stateowned lands, ways, and waters
leased to a private person, firm, or organization, including any
buildings and structures thereon.”2 While it may not seem convincing
to someone reading the definition, the Supreme Court of Ohio agreed with this
novel argument and held that, in theory, R.C. 1533.181 recreational immunity”
does apply to political subdivisions, as well as the state
itself.3 The major limitation on that protection lies in the
statutory definition of who is deemed a “recreational user” whose claims will be
affected by this immunity:
“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, allpurpose vehicle, or four-wheel drive motor vehicle,
or to engage in other recreational pursuits.4
In the nearly 30 years since Ohio subdivisions lost judicially
recognized sovereign immunity, much has happened, most notably the enactment
of Chapter 2744 of the Revised Code, laying out a whole new body of statutory
governmental immunity. Contemporaneously, a significant body of law has
continued to develop and remain viable under RC 1533.181, expanding on the
circumstances under which a governmental entity may be entitled to this
For one thing, recreational immunity has prevailed against all
manners of arguments, attacking the law or attempting to find loopholes of
liability. Courts have held that R.C. 1533.181 does not create an equal
protection violation and is not contrary to public policy, nor the right to jury
trial.5 It has prevailed against claims that Chapter 2744 supersedes
Chapter 1533 or that liability should be superimposed under R.C. 2744.02(B)(3)
or R.C. 723.01.6 Courts have held that R.C. 1533.181 immunity
prevails against a claim of nuisance (as opposed to negligence) or affirmative
creation of a hazard, and against allegations of willful or wanton conduct or
active of passive negligence.7 Recreational immunity continued after
the adoption of comparative negligence.8
This immunity has been honored regardless of the complainant’s
status as a trespasser, licensee, social guest, invitee or minor; regardless of
claims that the “special duty rule” applied; and even if the claimant’s use was
in violation of rules.9 Not insignificantly, the courts have held
that it also extends to the employees of governmental
This immunity applies in a wide array of contexts (see sidebar):
extending to those participating in sports, those watching sports, even those
traveling on their way to sports activities.
Despite the liberal interpretation courts have been willing to
take with this law, they generally have not been willing to extend immunity
where access to the site has been limited to residents of the
In 2002, the Supreme Court seemed to acknowledge another
exception, which was not readily apparent from the statute and which one may not
have anticipated from the case law that had developed up to that point.
Previously, the Court established the following principle:
If the premises qualify as being open to the public for
recreational activity, the statute does not require a distinction to be made
between plaintiffs depending upon the activity in which each was engaged
at the time of injury. For example we recognize immunity to the owner of a park
(which qualifies as recreational premises), whether the injury is to one who is
jogging in the park, tinkering with a model airplane or reading poetry to
satisfy a school homework assignment.12
However, in the case of Ryll v. Columbus Fireworks Display
Co., a spectator at a fireworks exhibition was killed when hit by shrapnel
from an exploding shell.13 Two justices on the Court held that there
was no “recreational immunity” available for the city because the injury was
caused not by the recreational premises per se, but by the activity
conducted on the premises (two other justices felt that the reach of
R.C. 1533.181 should no longer extend to political subdivisions at all).
At least one court felt that Ryll was establishing a new
distinction between “recreational premises” and the activity conducted on those
premises vis-à-vis R.C. 1533.181. In a 2006 case, Henny v. Shelby City School
District, a polevaulter alleged he was injured when his body hit a hard
surface rather than “side pads,” which he contended should have been installed
by defendant.14 The court held that the case turned on the
installation of the “portable” side pads; therefore, this was not a case about
“premises,” to which recreational immunity would apply. In contrast, that same
year, another court held that immunity would apply in a case where one discus
thrower was hit in the nose with a discus from another participant—the court
acknowledged Ryll, but held that the issue in the case before it was
whether the premises where the discuses were being thrown was
In 2009, a court had before it a case in which plaintiff, like
decedent in Ryll, went to a park to see fireworks and injured his hand on
a rolling fence gate—the majority held that the injury related to the gate,
which was part of the premises (to use Ryll’s reasoning)—the
dissent noted that the gate had been activated by a person, so that the injury
resulted from a person, not the premises.16
Several other courts seem not to have been concerned with the
parameters of any exception suggested by Ryll, deciding immunity applies
A motorcyclist in a park hit a tree which had fallen into the
A skater was injured while trying to avoid a stopped
- A park employee damaged a vehicle while operating a “weed eater” that
propelled an object into the windshield; and19
A rolling garbage receptacle damaged a parked vehicle after
The foregoing make it clear that at this point in time,
“recreational immunity” remains an available defense that counsel for both
plaintiffs and governmental entities need to evaluate when considering the
viability of pending claims. Also, counsel to municipalities would be prudent to
consider this statute when advising their clients concerning the set-up of
governmental programs, inasmuch as they may benefit from this type of immunity
if structured appropriately.
Stephen P. Bond is a partner at Brouse McDowell’s Avon Office and
is law director for Wellington, Ohio, and solicitor for New London, Ohio.
1 Haverlack v. Portage Homes, Inc. (1982), 2
Ohio St.3d 26.
2 R.C. 1533.18(A).
3 Marrek v. Cleveland Metroparks (1984), 9 Ohio
St. 3d 194; Johnson v. New London (1988), 36 Ohio St. 3d 60; McCord v.
ODNR (1978), 54 Ohio St.2d 72. (Note, the state had itself waived sovereign
immunity with the enactment of R.C. Chapter 2743, in 1975.)
4 R.C. 1533.18(B).
5 Moss v. ODNR (1980), 62 Ohio St.2d 138;
Fetherolf v. ODNR (10th Dist.), 7 Ohio App.3d 110; Nelson v. Bd. of
Park Commrs., 2002 WL 5356.
6 Kendrick v. Cleveland Metroparks (1994), 102
Ohio App.3d 739; Ledwick v. Marion, 1989 WL 145157; LiCause v. Canton
(1989), 42 Ohio St.3d 109; Miller v. Dayton (1989), 42 Ohio St.3d
113; Bell v. Cleveland, 1989 WL 98766; Vitai v. Sheffield Lake,
1987 WL 5561; Bien v. Cincinnati, 1993 WL 381206.
7 Ledwick, supra; Vitai, supra; Wicker
v. ODNR, 2003 WL 22765545; Fetherolf v. ODNR (1982), 7 Ohio App. 3d
110; Look v. Cleveland Metroparks (1988), 48 Ohio App.3d 135; Phillips
v. ODNR (1985), 26 Ohio App.3d 77; Russell v. Cleveland, 1987 WL
5464; Erbs v. Cleveland Metroparks System, 1987 WL 30512.
8 Florek v. Norwood (1985), 25 Ohio App.3d 47.
9 Fryberger v. Lake Cable Recreation Assn.
(1988), 40 Ohio St.3d 349; Phillips v. ODNR (1985), 26 Ohio App.3d
77; Aumock v. State, 2001 WL 95877; Sorrell v. ODNR (1988), 40
Ohio St.3d 141; Squires v. ODNR (10th Dist.), 1990 WL 21450; Kaeppner
v. ODNR (10th Dist.), 1989 WL 99415 (the argument that, if the plaintiff was
violating the rules, he was not using it “with permission” and, hence, did not
meet the definition of “recreational user” was rejected).
10 Rankey v. Arlington Bd. of Ed. (1992), 78
Ohio App.3d 112.
11 Tomba v. Wickliffe (2001), 114 Ohio Misc.2d 1
and 114 Ohio Misc.2d 10; Jarrett v. South Euclid (1990), 64 Ohio App.3d
12 Miller v. Dayton (1989), 42 Ohio St.3d 113,
13 95 Ohio St.3d 467.
14 2006 WL 747475.
15 Mason v. Bristol Local School Dist., 2006 WL
16 Mitchell v. Blue Ash (2009), 181 Ohio App.3d
17 Estate of Finley v. Cleveland Metroparks
(2010), 189 Ohio App.3d 139.
18 Gudliauskas v. Lakefront State Park, 2005 WL
19 Meiser v. ODNR, 2004 WL 885563.
20 Raymond v. Rocky Fork State Park, 2003 WL