[Cite as Pauley v. Circleville, 137 Ohio St.3d 212, 2013-Ohio-4541.] 

PAULEY ET AL., APPELLANTS, v. THE CITY OF CIRCLEVILLE, APPELLEE, ET AL. 

[Cite as Pauley v. Circleville, 137 Ohio St.3d 212, 2013-Ohio-4541.] 

Premises liability—Recreational users—R.C. 1533.181—City park—Snow 

sledding—Property owner not liable to recreational user injured during 

recreational use, even if property contains a hazardous condition created 

by property owner.

(No. 2012-1150—Submitted April 23, 2013—Decided October 16, 2013.) 

APPEAL from the Court of Appeals for Pickaway County, No. 10CA31, 

2012-Ohio-2378. 

____________________ 

KENNEDY, J. 

I. Introduction 

{¶ 1} Appellants, Jeremy Pauley and his mother, appeal from a judgment 

of the Fourth District Court of Appeals that affirmed summary judgment in favor 

of the city of Circleville regarding appellants’ civil action for injuries Jeremy 

sustained while sledding in the city’s park. We accepted the appellants’ 

discretionary appeal, which sets forth a single proposition of law: “Recreational 

user immunity does not extend to man-made hazards upon real property that do 

not further or maintain its recreational value.” 

{¶ 2} Under the recreational-user statutes (R.C. 1533.18 and 1533.181), 

property owners who open their premises to recreational users free of charge are 

immune from liability for injuries suffered by recreational users while they are 

engaged in a recreational activity. Appellants urge this court to hold that if a 

property owner modifies his or her property in a manner that creates a hazard 

without promoting or preserving the recreational character of the property, 

immunity does not apply. Finding no support in statutory or case law, we decline 
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to adopt such an exception. Therefore, we affirm the judgment of the court of 

appeals. 

II. Facts and Procedural History 

{¶ 3} The city owns Barthelmas Park, which contains ball fields, a 

playground, and various structures, such as a concession stand and picnic shelters. 

Entry to the park is free of charge. 

{¶ 4} In the summer of 2006, the city was offered free topsoil that was 

excavated from a nearby construction site. The city uses topsoil for numerous 

projects, including reseeding the park. Consequently, 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. 

{¶ 5} 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. Jeremy and Kevin began sledding at about 5 p.m., 

while the girls looked on. At approximately 6:00 p.m., as it began getting dark, 

Jeremy 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. Kevin 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 Jeremy had sledded down it. In 

his deposition, Jeremy 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.” 

{¶ 6} Jeremy 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 Jeremy was critically injured, Kevin Baisden called 9-1-1. At the 

time, Kevin did not notice any obstacle in Jeremy’s path. However, the day after 
January Term, 2013 

3 

the accident, Kevin went back to the park and observed an object that looked like 

a railroad tie in the area where Jeremy was injured. 

{¶ 7} Jeremy suffered a broken neck, which caused him to become a 

quadriplegic. He and his mother filed a complaint alleging that the city acted 

negligently, recklessly, and wantonly in dumping debris in the park, which 

resulted in a physical defect that caused Jeremy’s injuries. The complaint alleged 

that “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.” 

{¶ 8} The trial court granted the city’s motion for summary judgment, 

finding that the city was immune from suit under R.C. 1533.181. The court of 

appeals affirmed the trial court’s judgment, with one judge dissenting. 2012-

Ohio-2378, 971 N.E.2d 410 (4th Dist.). 

{¶ 9} We accepted the appellants’ discretionary appeal. 133 Ohio St.3d 

1422, 2012-Ohio-4902, 976 N.E.2d 913. 

{¶ 10} Appellants claim that “the recreational user immunity statute is 

designed to preclude the right to recovery of civil damages only in specific 

instances.” Appellants contend that R.C. 1533.181 does not apply when a 

property owner makes the property “more dangerous without promoting or 

preserving recreational activities.” 

{¶ 11} The city argues that R.C. 1533.181 provides a “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.” The city argues that appellants 

“improperly ask this Court to judicially create an exception or limitation to 

recreational immunity that does not exist in the Statute.” 

 
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III. Analysis 

Recreational-User Immunity 

{¶ 12} We begin our analysis by examining the statute, as well as 

applicable case law. 

{¶ 13} R.C. 1533.181(A) states: 

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. 

{¶ 14} R.C. 1533.18 states: 

As used in sections 1533.18 and 1533.181 of the Revised 

Code: 

(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 
January Term, 2013 

5 

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 fourwheel drive motor vehicle, or to engage in other recreational 

pursuits. 

{¶ 15} “Premises” under R.C. 1533.18(A) includes land owned by 

municipalities and the state. LiCause v. Canton, 42 Ohio St.3d 109, 110, 537 

N.E.2d 1298 (1989). 

{¶ 16} In determining whether immunity applies, courts examine the 

essential character of the property. First, the property must be held open to the 

public for recreational use, free of charge. See id. at syllabus; Fryberger v. Lake 

Cable Recreation Assn., Inc., 40 Ohio St.3d 349, 533 N.E.2d 738 (1988), 

paragraph one of the syllabus. Compare Loyer v. Buchholz, 38 Ohio St.3d 65, 526 

N.E.2d 300 (1988) (private pool not held open for public use is not protected by 

R.C. 1533.181); Brinkman v. Toledo, 81 Ohio App.3d 429, 611 N.E.2d 380 (6th 

Dist.1992) (even though sidewalks and streets are often used for recreational 

purposes, such premises are not protected by recreational-user immunity because 

they do not have the essential character of land held open to the public for 

recreational use). 

{¶ 17} The character of the premises envisioned by the recreational-user 

statute involves “the true outdoors,” because “[m]ost of the recreational activities 

enumerated in R.C. 1533.18(B) are generally conducted in ‘the wide open 

spaces,’ such as parks or wilderness tracts * * *.” Loyer at 67. Recreational 

premises typically “include elements such as land, water, trees, grass, and other 

vegetation.” Miller v. Dayton, 42 Ohio St.3d 113, 114, 537 N.E.2d 1294 (1989). 
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{¶ 18} However, “[t]o qualify for recreational user immunity, property 

need not be completely natural, but its essential character should fit within the 

intent of the statute.” Id. For example, a softball field requires certain manmade 

elements, but those improvements do not change the essential character of the 

property so as to remove it from the protection of the statute. The property is still 

held open for public use for recreational purposes. Id. at 115. Compare Light v. 

Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986) (a gymnasium, an 

entirely manmade structure, “is not within the contemplation of the recreational 

user immunity statutes”). 

{¶ 19} The types of recreational activities that qualify as a recreational use 

are diverse. R.C. 1533.181(B) lists hunting, fishing, trapping, camping, 

swimming, operating a snowmobile, all-purpose vehicle, or four-wheel-drive 

motor vehicle, and “other recreational pursuits” as examples of the types of 

activities contemplated by the statute. And courts have broadly construed “other 

recreational pursuits” to include sledding, Marrek v. Cleveland Metroparks Bd. of 

Commrs., 9 Ohio St.3d 194, 459 N.E.2d 873 (1984); horseback riding, Crabtree v. 

Shultz, 57 Ohio App.2d 33, 384 N.E.2d 1294 (10th Dist.1977); watching others 

swim, Fetherolf v. Ohio Dept. of Natural Resources, 7 Ohio App.3d 110, 454 

N.E.2d 564 (10th Dist.1982); motorcycle riding, Kelley v. Differential Corp., 3d 

Dist. Hancock No. 5-81-35, 1982 WL 6787 (May 6, 1982); using a swingset, Vitai 

v. Sheffield Lake, 9th Dist. Lorain No. 4045, 1987 WL 5561 (Jan. 21, 1987); 

riding a merry-go-round, Miller v. Sheffield Lake, 9th Dist. Lorain No. 4133, 1987 

WL 9477 (Apr. 8, 1987); riding a bicycle, Erbs v. Cleveland Metroparks Sys., 8th 

Dist. Cuyahoga No. 53247, 1987 WL 30512 (Dec. 24, 1987); and watching others 

play baseball, Buchanan v. Middletown, 12th Dist. Butler No. CA86-10-156, 1987 

WL 16062 (Aug. 24, 1987). 

{¶ 20} However, activities such as pulling down a soccer goalpost 

(Fuehrer v. Westerville City School Dist. Bd. of Edn., 61 Ohio St.3d 201, 574 
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7 

N.E.2d 448 (1991)), or marching in a parade on a public street (McGuire v. 

Lorain, 9th Dist. Lorain No. 10CA009893, 2011-Ohio-3887, 2011 WL 3426186 

(Aug. 8, 2011)), are not the types of activities envisioned by the recreational-user 

immunity statutes. 

Property Owners Owe No Duty of Care to Keep Their Premises 

Safe for Entry or Use by Recreational Users 

{¶ 21} Under R.C. 1533.181(A)(1), “[n]o owner owes any duty to a 

recreational user to keep the premises safe for entry or use.” (Emphasis added.) 

A duty is “[a] legal obligation that is owed or due to another and that needs to be 

satisfied.” Black’s Law Dictionary 580 (9th Ed.2009). Generally speaking, “[i]f 

there is no duty, no liability can follow.” Collins v. Sabino, 11th Dist. Trumbull 

No. 96-T-5590, 1997 WL 531246, * 4 (Aug. 29, 1997), fn. 5. Consequently, an 

owner cannot be held liable for injuries sustained during recreational use “even if 

the property owner affirmatively created a dangerous condition.” Erbs v. 

Cleveland Metroparks Sys., at *2, citing Milliff v. Cleveland Metroparks Sys., 8th 

Dist. Cuyahoga No. 52315, 1987 WL 11969 (June 4, 1987); see also Phillips v. 

Ohio Dept. of Natural Resources, 26 Ohio App.3d 77, 79, 498 N.E.2d 230 (10th 

Dist.1985) (property owner not liable to recreational user for willful and wanton 

failure to warn of dangerous condition); Press v. Ohio Dept. of Natural 

Resources, Ct. of Cl. No. 2005-100004-AD, 2006-Ohio-1024, 2006 WL 538106, 

¶ 11 (property owner not liable to recreational user for injuries caused by owner’s 

affirmative creation of a hazard). The determination of whether R.C. 1533.181 

applies depends not on the property owner’s actions, but on whether the person 

using the property qualifies as a recreational user. Estate of Finley v. Cleveland 

Metroparks, 189 Ohio App.3d 139, 2010-Ohio-4013, 937 N.E.2d 645, ¶ 50 (8th 

Dist.); Look v. Cleveland Metroparks System, 48 Ohio App.3d 135, 137, 548 

N.E.2d 966 (8th Dist.1988). 
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{¶ 22} In this case, appellants admitted that Pauley was a recreational user 

within R.C. 1533.181, as he clearly was. He entered the park, free of charge, to 

go sledding. Thus, the city owed him no duty to keep the premises safe, and the 

city’s alleged creation of a hazard on the premises does not affect its immunity. 

Miller v. Dayton and Ryll v. Columbus Fireworks Display Co., Inc. 

{¶ 23} In arguing that property owners should not be afforded immunity if 

they “render[] their land more dangerous without promoting or preserving 

recreational activities,” appellants rely primarily upon Ryll v. Columbus 

Fireworks Display Co., Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 

372, and Miller v. Dayton, 42 Ohio St.3d 113, 537 N.E.2d 1294. 

{¶ 24} Appellants cite Ryll for the proposition that even if an injured 

person was a recreational user within the meaning of R.C. 1533.18(B), the 

property owner is not automatically afforded immunity in all cases. “In addition 

to considering whether the plaintiff was a ‘recreational user’ within the meaning 

of R.C. 1533.18(B),” appellants urge, “courts must also determine whether the 

cause of the injury is attributable to premises that are truly recreational.” 

{¶ 25} Citing Miller, appellants then ask this court to hold that “[i]n 

lawsuits involving man-made objects, liability has been precluded only when such 

improvements enhance the recreational activities on the property.” We do not 

agree. 

{¶ 26} In Ryll, a spectator was attending a fireworks show sponsored by 

the city of Reynoldsburg when he was fatally injured by shrapnel from a 

fireworks shell. The spectator’s estate sued the city, which asserted that it was 

immune from liability under the recreational-user statutes. We held that the 

recreational-user statute immunizes property owners from injuries that arise from 

a defect in the premises. Because the shrapnel was not a defect in the premises, 

immunity did not apply. 
January Term, 2013 

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{¶ 27} In Miller, the plaintiff was playing in a softball tournament in a 

park owned by the city of Dayton when he was injured sliding into second base. 

The plaintiff sued the city seeking to recover for his injuries. The trial court 

granted summary judgment to the city pursuant to R.C. 1533.181. 

{¶ 28} The court of appeals reversed the trial court’s judgment. The court 

of appeals held that a baseball diamond is an artificial, manmade development, 

bearing little resemblance to land in its natural state. Thus, the court of appeals 

held that the plaintiff was not a recreational user, and the city was not immune. 

{¶ 29} This court held that “[i]n determining whether a person is a 

recreational user under R.C. 1533.18(B), the analysis should focus on the 

character of the property upon which the injury occurs and the type of activities 

for which the property is held open to the public.” Miller, 42 Ohio St.3d 113, 537 

N.E.2d 1294, at paragraph one of the syllabus. 

{¶ 30} In its analysis, this court stated that “the presence of man-made 

improvements on a property does not remove the property from statutory 

protection.” Id. at 114. “To qualify for recreational-user immunity, property need 

not be completely natural, but its essential character should fit within the intent of 

the statute.” Id. We further instructed that the premises should be “viewed as a 

whole” to determine whether users enter to hunt, fish, trap, camp, hike, swim, or 

engage in other recreational pursuits. Id. at 115. 

{¶ 31} Applying this test, we held that “[t]he essential character of [the 

ballpark] is that of premises held open to the plaintiff, without fee, for recreational 

purposes” and that improvements such as “dugouts, fences, base plates, and 

similar manmade structures” did not change the park’s essential character as 

outdoor premises used for recreational purposes within the recreational-user 

statutes. Id. Thus, the plaintiff was a recreational user, and the city was immune 

from suit. 
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{¶ 32} We find that the instant case is distinguishable from both Ryll and 

Miller. In Ryll, the injury was caused by a fireworks shell, not by a defect on the 

city’s premises, so R.C. 1533.181 did not immunize the city from liability. In the 

instant case, the railroad-tie-like object was embedded in a mound of dirt that was 

part of the park at the time Jeremy suffered his accident. Therefore, the injury 

was caused by a defect in the premises, making Ryll inapplicable. 

{¶ 33} In Miller, there was no discussion of a defect in the premises. 

Indeed, the recreational-user statutes protect property owners from such defects. 

Rather, the question in Miller was whether manmade improvements, such as a 

baseball diamond, changed the essential character of the property to something 

other than an outdoor space used for something other than an outdoor recreational 

activity. Accordingly, Miller lends no support to appellants’ proposition that 

liability is precluded for injuries caused by manmade improvements only when 

such improvements enhance the recreational activities on the property. Whether 

the manmade improvements in Miller enhanced the recreational activities in the 

park was irrelevant. The question was whether the improvements so changed the 

essential character of the park as to take it outside the protection of the statute. 

We cannot accept as reasonable any contention that the presence of a railroad tie 

in a public park changes its essential character as a recreational space. 

{¶ 34} Moreover, to adopt appellants’ reading of Miller would require 

property owners to make their property safe for entry and use in direct 

contravention of the plain language in R.C. 1533.181(A)(1). “It is not this court’s 

role to apply a judicially created doctrine when faced with statutory language that 

cuts against its applicability.” (Emphasis sic.) Wallace v. Ohio Dept. of 

Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 33. 

{¶ 35} In addition, adopting appellants’ interpretation of Miller would 

conflict with the purpose of the recreational-user statute, which is to encourage 

owners of premises suitable for recreational pursuits to open their land to public 
January Term, 2013 

11 

use without fear of liability. Moss v. Dept. of Natural Resources, 62 Ohio St.2d 

138, 142, 404 N.E.2d 742 (1980); Marrek v. Cleveland Metroparks Bd. of 

Commrs., 9 Ohio St.3d at 198, 459 N.E.2d 873. Removing the protection of 

immunity would undoubtedly cause property owners to restrict recreational use of 

their properties, or close them entirely, from fear of liability. 

{¶ 36} Finally, even assuming arguendo that we agreed with appellants’ 

interpretation of Miller, it would not change the outcome in this case. Miller

requires that the property be “viewed as a whole,” and only when the “essential 

character” of the property has been altered to something other than an outdoor 

property on which outdoor recreational activities occur does immunity fall away. 

{¶ 37} The park in this case is an outdoor property with trees and grass 

and is open to the public free of charge for picnicking and sporting activities such 

as sledding, baseball, soccer, and basketball, as well as other recreational 

activities that inevitably occur in parks, such as tinkering with a model plane, 

reading poetry, or jogging. See Miller, 42 Ohio St.3d at 115, 537 N.E.2d 1294. 

The alleged defect in this case is an object resembling a railroad tie. When 

viewing the park property “as a whole,” the existence of a single railroad tie does 

not change the essential character of the park to something other than a property 

that is open for recreational use. 

{¶ 38} Critics may claim that our decision reaches a harsh result. 

However, the language of the recreational-user statute is plain: a property owner 

owes no duty to a recreational user to keep the property safe for entry or use. 

Creating an exception to this immunity is a policy decision that comes within the 

purview of the General Assembly, not the courts. The General Assembly 

understands how to draft laws that contain exceptions, but included no exception 

that can be applied in this case. And we will not create an exception by judicial 

fiat. Akron v. Rowland, 67 Ohio St.3d 374, 380, 618 N.E.2d 138 (1993). 

 
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Conclusion 

{¶ 39} Pauley entered the park free of charge and engaged in the 

recreational activity of snow sledding on the date of his injury. Therefore, as he 

conceded, he was a recreational user as defined in R.C. 1533.18(B). Therefore, 

the city was not liable for his injuries, because it owes no duty to recreational 

users to ensure that the park is safe for entry or use. Accordingly, we affirm the 

judgment of the court of appeals. 

Judgment affirmed. 

O’DONNELL, LANZINGER, and FRENCH, JJ., concur. 

O’CONNOR, C.J., concurs in judgment only. 

PFEIFER and O’NEILL, JJ., dissent. 

____________________ 

 PFEIFER, J., dissenting. 

{¶ 40} I join Justice O’Neill’s dissent, although I do not share his 

enthusiasm for the recreational-user statutes. In particular, the immunity 

provisions contained in R.C. 1533.18 and 1533.181 are overbroad and provide 

unreasonable and, with respect to governmental entities, unconstitutional 

protection to premises owners. 

____________________ 

O’NEILL, J., dissenting. 

{¶ 41} I respectfully dissent from the majority in this case. The holdings 

of the Fourth District Court of Appeals and the Pickaway County Court of 

Common Pleas granting summary judgment to the city of Circleville should be 

reversed, and this case should be remanded for trial. I agree wholeheartedly with 

the letter, spirit, and intent of most recreational-user statutes. This court has said 

that the purpose of Ohio’s recreational-user statute is “ ‘to encourage owners of 

premises suitable for recreational pursuits to open their land to public use without 

worry about liability.’ ” Marrek v. Cleveland Metroparks Bd. of Commrs., 9 Ohio 
January Term, 2013 

13 

St.3d 194, 198, 459 N.E.2d 873 (1984), quoting Moss v. Dept. of Natural 

Resources, 62 Ohio St.2d 138, 142, 404 N.E.2d 742 (1980). There is no question 

that a swimming-pool owner would simply close the pool if every child who 

slipped on the wet pavement was entitled to litigate his boo-boo for years in a 

court of competent jurisdiction. However, when, as here, a property owner 

converts a recreational park to a municipal dump site for construction fill and 

debris, there is no statute in the land that should shield that tortfeasor from 

accountability for such a disastrous action. As stated so eloquently by Justice 

Cardozo in Palsgraf: “The risk reasonably to be perceived defines the duty to be 

obeyed.” (Emphasis added.) Palsgraf v. Long Island RR. Co., 248 N.Y. 339, 344, 

162 N.E. 99 (1928). 

{¶ 42} In Miller v. Dayton, this court extended recreational-user immunity 

to improvements made to property. 42 Ohio St.3d 113, 537 N.E.2d 1294 (1989). 

We said that the 

significant query is whether such improvements change the 

character of the premises and put the property outside the 

protection of the recreational-user statute. To consider the 

question from a different perspective: Are the improvements and 

man-made structures consistent with the purpose envisioned by the 

legislature in its grant of immunity? In other words, are the 

premises (viewed as a whole) those which users enter upon “* * * 

to hunt, fish, trap, hike, swim, or engage in other recreational 

pursuits?” 

Id. at 114-115 (quoting R.C. 1533.18(A)).

{¶ 43} The majority asserts that our holding in Miller requires that the 

property be viewed as a whole, and only when the “essential character” of the 
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entire property has been altered to something other than an outdoor property on 

which outdoor recreational activities occur does immunity fall away. Majority 

opinion at ¶ 36. The opinion goes on to say that “[w]hen viewing the park 

property ‘as a whole,’ the existence of a single railroad tie does not change the 

essential character of the park to something other than a property that is open for 

recreational use.” Majority opinion at ¶ 37. Even if the majority’s overreliance 

on the words “as a whole” is correct—and it is not—I disagree. And let’s be 

accurate here—we are not talking about a single railroad tie. That tie that 

crippled this child was part of an overall scheme of disposal of huge mounds of 

debris that the city had incredibly decided to place in the middle of a recreational 

park! Cover it with a light dressing of snow, and the perfect killing field was 

created. I would hold, as a matter of law, that when the owner of a property that 

enjoys the immunity granted by the people of Ohio for recreational purposes 

makes a conscious decision to use the property for other purposes, the immunity 

ceases. See Huffman v. Willoughby,11th Dist. Lake No. 2007-L-040, 2007-Ohio7120, ¶ 50 (a lowhead dam “was not an improvement that was made to encourage 

the recreational use of this part of the river. Instead, * * * it made that part of the 

river inherently dangerous and thus not suitable for recreational use”); Vinar v. 

Bexley, 142 Ohio App.3d 341, 755 N.E.2d 922 (10th Dist.2001) (because a 

roadway through a park was available to the public for travel not related to a 

recreational use, recreational-user immunity under R.C. 1533.181 is inapplicable). 

See also Smith v. S. Pacific Transp. Co., Inc., 467 So.2d 70, 73 (La.App.1985) 

(when persons are allowed to use the property for purposes not associated with 

recreational activities, the statutes should not apply). To hold otherwise would be 

to suggest, for example, that the city could store hazardous waste alongside the 

running track, or possibly it could release wild animals from the city zoo into the 

park area in the hopes that they would find dinner on their own. Would the current 
January Term, 2013 

15 

state of the law in Ohio absolve such conduct, possibly with the addition of 

attractive signs cautioning the children to “play at your own risk”? 

{¶ 44} In my opinion, it is wholly irrelevant to focus any attention 

whatsoever on the actions or the knowledge of the injured child. The city made a 

decision to dump huge mounds of debris into a city-owned park. When it did 

that, it lost its “recreational user” immunity entirely. Accordingly, I respectfully 

dissent. 

PFEIFER, J., concurs in the foregoing opinion. 

____________________ 

 Bashein & Bashein Co., L.P.A., and W. Craig Bashein; and Paul W. 

Flowers Co., L.P.A., and Paul W. Flowers; and George R. Oryshkewych, for 

appellants. 

 Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, Todd M. 

Raskin, and Frank H. Scialdone; and Law Offices of Douglas J. May and Patrick 

J. Deininger, for appellee. 

Elk & Elk Co., Ltd., and Kimberly C. Young, urging reversal for amicus 

curiae Ohio Association for Justice. 

Roetzel & Andress, L.P.A., and Stephen W. Funk, urging affirmance for 

amicus curiae Ohio Association of Civil Trial Attorneys. 

Isacc, Brandt, Ledman & Teetor, L.L.P., Mark Landis, and Aaron M. 

Glasgow, urging affirmance for amici curiae County Commissioners Association 

of Ohio, Ohio Township Association, and Ohio Parks and Recreation Association. 

Ice Miller L.L.P., and Philip Hartmann, Rebecca K. Schaltenbrand, and 

Stephen J. Smith; and John Gotherman, urging affirmance for amicus curiae Ohio 

Municipal League. 

________________________