Daily Development for Friday, August 2, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

I know, I know - "Enough with the premises liability cases - let's talk deals." Sorry, just ran out of time this hot Friday.

LANDOWNER LIABILITY; RECREATIONAL USE IMMUNITY STATUTES: Spectator's death caused from being hit by shrapnel from an exploding fireworks shell at fireworks display sponsored by city is not an injury caused by "premises," within the meaning of the word promulgated by the recreational use statute.

Ryll v. Columbus Fireworks Display Co., 769 N.E.2d 372 (Ohio 2002).

Ryll ("Appellant"), brought suit against the city of Reynoldsburg and Truro Township sponsors of the fireworks display, for the wrongful death of her husband.. Mr. Ryll was killed when shrapnel from an exploding firework shell hit him during the July 14, 1996 Reynoldsburg fireworks display held in a public use area.

Appellees filed motions for summary judgment in the trial court claiming sovereign immunity. The court of appeals found that Appellees were immune from liability based on R.C.1533.181, which provides, inter alia: "No owner, lessee, or occupant of premises: owes any duty to recreational user to keep the premises safe for entry or use . . . ."The court of appeals stated that the statute provides owners, lessees, and occupants of property with immunity for all injuries incurred by "recreational users" (citations omitted).

The Supreme Court of Ohio stated, however, that the court of appeals conclusion was overly expansive and found that the law does not state the a recreational user is owed no duty, but instead immunizes an owner, lessee, or occupant of premises only from a duty "to keep the premises safe for entry or use." The supreme court found that the cause of the injury in this case had nothing to do with "premises" as defined in the statute.

The cause of the injury was shrapnel from fireworks, not "privately- owned lands, ways, waters, and buildings and structures thereon," as defined in the statute. As a result, the court found that the statutory use of the term "premises fails to immunize the Appellees.

Six judges refused to agree with the analysis. Two concurred in the result only. One opined that the Ohio recreational immunity statute does not apply to public agencies, and concurred on that basis, and three dissented on jurisdictional grounds unrelated to the merits.

Comment 1: These recreational use immunity statutes, which appear in many states, have enjoyed a broad reading. This decision pulls back some.

Although the decision superficially does appear to have logic on its side, certainly there were arguments supporting immunity. After all, one could logic that the injury arose from the fact that the owner of the land negligently invited the decedent onto its land where there was a danger of wayward fireworks. Permitting a juxtaposition of observers and wayward fireworks represented a "failure to keep the premises safe for entry or use." In addition, there were allegations that a city inspector failed to observe that holes dug into the ground for the firing of the projectiles did not meet code. Why wasn't this a "condition of the premises" rendering them "unsafe for use?"

Isn't any analysis of the safety of the premises necessarily an analysis of the what the plaintiff was doing on the premises and what else was happening at the same time. A broken fence is no problem when there are no mean spirited bulls around. It's the keeping of the bulls plus the broken fence that causes the problem.

Comment 2: But does my little disputation prove too much? Would the analysis support immunity for any owner of recreational land for any activity? Yes - probably would - at least as to persons injured on the land. But isn't the whole idea to encourage people to open their land to recreational usage and to shift the risk to users to identify risks and to protect themselves? For instance, one would assume that a prime mover here is concern about people coming into open lands will be injured by errant rifle bullets negligently fired by hunters also on the land. What's the difference in kind between that bullet and the projectile that killed decedent here.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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