Schafer v. Ohio Dep't of Natural Res.

190 N.E.3d 721

James Fritz SCHAFER, Individually and as Executor of the Estate of Victoria Schafer, Plaintiff-Appellant,

v.OHIO DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee.

No. 22AP-27

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on May 31, 2022

On brief: Kegler, Brown, Hill & Ritter, LPA, Timothy T. Tullis, and Rebecca Roderer Price, Columbus, for appellant. Argued: Rebecca Roderer Price.

On brief: Dave Yost, Attorney General, Anne Berry Strait, Columbus, and Michelle Brizes, for appellee. Argued: Anne Berry Strait.

DECISION

McGRATH, J.

{¶ 1} This is an appeal by plaintiff-appellant, James Fritz Schafer, Individually and as Executor of the Estate of Victoria Schafer, from a judgment of the Court of Claims of Ohio granting the motion of defendant-appellee, Ohio Department of Natural Resources ("ODNR"), to dismiss appellant's complaint pursuant to Civ.R. 12(B)(6).

{¶ 2} On August 31, 2021, appellant filed a complaint against ODNR asserting causes of action for negligence, wrongful death, and survival action. The complaint alleged that on September 2, 2019, Victoria Schafer ("Schafer") was photographing high school students at Old Man's Cave in Hocking Hills State Park when she was struck by a "wooden log." (Compl. at ¶ 7.) It was alleged that "[J.C.] and/or [J.B.] rolled the log over the top of a cliff above where Victoria Schafer was standing." (Compl. at ¶ 8.) Further, the log which hit Schafer "was stacked among other cut logs in a clearing that had been created by ODNR and/or its contractors during a construction project." (Compl. at ¶ 9.)

{¶ 3} Appellant alleged ODNR and/or its contractors accessed the clearing using existing trails "typically used for foot races" or trails that were created to "move * * * construction equipment" between the clearing and the construction site. (Compl. at ¶ 10.) According to the complaint, ODNR did not "block off" access to the clearing allowing use of "trails * * * not part of the official park system of trails," and it failed to "mitigate * * * or otherwise indicate that the area was restricted." (Compl. at ¶ 10, 11.) It was similarly asserted that ODNR did not "block off * * *, mitigate * * * or otherwise indicate" that the clearing area where the logs were stacked was restricted. (Compl. at ¶ 12.)

{¶ 4} With respect to the negligence claim, it was alleged ODNR "was negligent in stacking and/or leaving stacked logs easily accessible to the public from the [trails], and near the cliff above the Lower Falls area, one of the most heavily-visited areas of Old Man's Cave." (Compl. at ¶ 15.) The complaint further asserted it was "foreseeable that the stacked logs would be tampered with, thereby causing an injury to a park guest, like Victoria Schafer." (Compl. at ¶ 16.)

{¶ 5} On September 28, 2021, ODNR filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). In the accompanying memorandum in support, ODNR argued that it was immune from liability under Ohio's recreational user statute, R.C. 1533.181. ODNR alternatively argued it was immune from liability under the public duty rule ( R.C. 2743.02(A)(3)(a) ), and that general tort principles also precluded ODNR from liability for the criminal acts of third parties, i.e., J.C. and J.B.

{¶ 6} On October 12, 2021, appellant filed a memorandum in opposition to ODNR's motion to dismiss. In the memorandum, appellant agreed with ODNR that "Hocking Hills State Park * * * is within the recreational use statute's definition of ‘premises,’ " R.C. 1533.18, and further agreed that Schafer "was a ‘recreational user’ under that statute." (Memo. in Opp. at 3.) Appellant argued, however, "the immunity provided by the recreational user statute is not absolute," and that the log that hit Schafer and caused her death "was not part of the land and therefore her injuries did not arise from the condition of the premises." (Memo. in Opp. at 3-4.) Appellant further argued that the public duty rule did not apply to this action. Finally, appellant argued that he may prove the criminal acts of the third parties were foreseeable. On October 18, 2021, ODNR filed a reply memorandum in support of its motion to dismiss.

{¶ 7} On December 8, 2021, the Court of Claims filed an entry granting ODNR's motion to dismiss the complaint. In its entry of dismissal, the Court of Claims held in part:

According to the Complaint, Plaintiff suggests that Defendant owed Schafer a duty to stack the logs, block off the paths where the logs were stacked, and otherwise mitigate the circumstances which led to Schafer's death. The Court disagrees.

* * *

It is not disputed that Schafer was a recreational user of Hocking Hills State Park.

Although the recreational user statute does not eliminate Defendant's common law duty to exercise reasonable care to avoid negligently injuring those on the premises, Plaintiff alleges no act or omission by which Defendant negligently injured Schafer.

Even accepting the facts alleged in the Complaint as true, Defendant's failure to stack logs or block pathways relates to rendering safe the conditions of the premises—a duty Defendant did not owe to Schafer. Furthermore, the log that struck Schafer was certainly a condition of the premises. * * * Even if Defendant had stacked the logs or blocked off the pathways and clearing, Schafer's death had little to do with the safety conditions of Old Man's Cave. Although tragic, the unfortunate actions of two other recreational users caused Schafer's death—an action for which Defendant has no responsibility. [J.C.] and [J.B.] finding a log, regardless of its location and condition, is no different from them picking up any other piece of loose forestry or rock on the premises and throwing it over the cliff.

Plaintiff argues that he should be entitled to discovery relevant to prove his claims, but allowing such discovery would amount to nothing more than a fishing expedition. Even if, by a stretch of the imagination, Defendant did breach a duty owed, the Court finds the purported negligence was not the proximate cause of Schafer's death. * * * Plaintiff has not identified any law or facts that suggest either a special relationship between Defendant and Schafer or any overwhelming circumstances which would justify imposing liability on Defendant. Plaintiff's assertion that the existence of an administrative code rule makes [J.C.] and [J.B.’s] act foreseeable is not well taken. The mere fact that it can be anticipated that individuals may throw objects over cliffs does not make Defendant's failure to stack cut logs or block off pathways an unreasonable risk for which it would incur liability.

* * *

For the reasons stated above, the Court finds that Plaintiff can prove no set of facts entitling him to relief.

(Dec. 8, 2021 Entry of Dismissal at 3-5.)

{¶ 8} On appeal, appellant sets forth the following assignment of error for this court's review:

1. The trial court erred in finding that Defendant-Appellee had no liability for Victoria Schafer's death pursuant to the recreational user statute, R.C. 1533.18(A) by deciding as follows:

a. Victoria Schafer's death was caused by a condition of the premises; b. Plaintiff-Appellant alleged no act or omission by which Defendant-Appellee negligently caused Victoria Schafer's death; and

c. That the conduct which caused Victoria Schafer's death was not foreseeable.

{¶ 9} Under his single assignment of error, appellant challenges the Court of Claims’ dismissal of the complaint pursuant to Civ.R. 12(B)(6). Specifically, appellant argues the Court of Claims erred in finding ODNR had no liability under Ohio's recreational user statute by construing the allegations in the complaint to find Schafer's death was caused by a condition of the premises, and in finding appellant alleged no act or omission by ODNR that negligently caused her death. Appellant also challenges the Court of Claims’ determination that the alleged conduct which caused the death of Schafer was not foreseeable.

{¶ 10} A reviewing court "applies a de novo standard of review to orders granting a Civ.R. 12(B)(6) motion to dismiss." Menorah Park Ctr. for Senior Living v. Rolston, 164 Ohio St.3d 400, 2020-Ohio-6658, 173 N.E.3d 432, ¶ 12. In considering a motion to dismiss for failure to state a claim, "we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party." Mitchell v. Lawson Milk Co. , 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988), citing 2A Moore, Federal Practice , Paragraph 12.07[2.5] (1985). Further, before a court may dismiss the complaint, "it must appear beyond doubt that plaintiff can prove no set of facts warranting a recovery." Id ., citing O'Brien v. Univ. Community Tenants Union , Inc. , 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.

{¶ 11} "In 1963, the General Assembly enacted the recreational user statute, R.C. 1533.18 et seq., Am.H.B. No. 179, 130 Ohio Laws 423, 1638, ‘to encourage owners of premises suitable for recreational pursuits to open their land to public use without fear of liability.’ " Combs v. Ohio Dept. of Natural Resources, Div. of Parks & Recreation , 146 Ohio St.3d 271, 2016-Ohio-1565, 55 N.E.3d 1073, ¶ 11, quoting Loyer v. Buchholz , 38 Ohio St.3d 65, 66, 526 N.E.2d 300 (1988). See also Stone v. Northmont City Schools , 2022-Ohio-1116, 187 N.E.3d 54, ¶ 28.

{¶ 12} R.C. 1533.181(A), Ohio's recreational user statute, states as follows:

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.

{¶ 13} R.C. 1533.18(A) provides the following definition: " ‘Premises’ means all privately owned lands, ways, and waters, and any buildings and structures thereon, and all...