[Cite as Tepker v. Hueston Woods State Park, 2010-Ohio-5453.]

                                     Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us




FRED TEPKER

       Plaintiff

       v.

HUESTON WOODS STATE PARK

       Defendant

        Case No. 2009-08799-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Fred Tepker, filed this action against defendant, Hueston Woods
State Park (Park), contending his 2004 Ford F-150 pick up truck was damaged as a
proximate cause of negligence on the part of defendant in maintaining a hazardous
condition on Park premises. Plaintiff recalled he parked his truck at a campground
parking space on defendant’s premises on October 10, 2009 and a limb from a locust
tree fell upon the truck damaging the vehicle’s fiberglass cap, spoiler, and cap light.
Photographs of the fallen tree limb and truck were submitted by defendant and plaintiff.
Plaintiff asserted defendant was negligent in maintaining a known hazardous condition
on Park premises that damaged his truck and he was consequently, filed this complaint
seeking to recover $1,504.49, an amount representing vehicle repair costs. The filing
fee was paid.
        {¶ 2} Defendant has denied liability for the damage claim based on the fact that
plaintiff was a recreational user of defendant’s premises at the time of the property
damage occurrence. Defendant explained that the parking area plaintiff chose is open
to the public and free of charge and plaintiff did not pay a fee to enter the Park.
       {¶ 3} Since this incident occurred at Hueston Woods State Park, defendant
qualifies as the owner of the “premises” under R.C. 1533.18 et seq.
       {¶ 4} “Premises” and “recreational user” are defined in R.C. 1533.18, as follows:
       {¶ 5} “(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, organization, including any buildings
and structures thereon.”
       {¶ 6} “(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 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 the premises to hunt, fish, trap, camp, hike, or swim, or to operate a snowmobile,
all-purpose vehicle, or four-wheel drive motor vehicle, or to engage in other recreational
pursuits.”
       {¶ 7} R.C. 1533.181 states:
       {¶ 8} “(A) No owner, lessee, or occupant of premises:
       {¶ 9} “(1) Owes any duty to a recreational user to keep the premises safe for
entry or use;
       {¶ 10} “(2) Extends any assurance to a recreational user, through the act of
giving permission, that the premises are safe for entry or use.” (Emphasis added.)
       {¶ 11} Pursuant to the enactment of R.C. 2743.02(A), the definition of premises
in R.C. 1533.18(A) effectively encompassed state-owned lands. Moss v. Department of
Natural Resources (1980), 62 Ohio St. 2d 138, 16 O.O. 3d 161, 404 N.E. 2d 742. R.C.
1533.18(A)(1), which provides, inter alia, that an owner of premises owes no duty to a
recreational user to keep the premises safe for entry or use, applies to the state.
Fetherolf v. State (1982), 7 Ohio App. 3d 100, 7 OBR 142, 454 N.E. 2d 564. Plaintiff is
clearly a recreational user, having paid no fee to enter the premises. Owing no duty to
plaintiff, defendant clearly has no liability under a negligence theory. See Shockey v.
Ohio Dept. of Natural Resources, Ct. of Cl. No. 2004-09509-AD, 2005-Ohio-641. Even
if defendant’s conduct would be characterized as “affirmative creation of hazard,” it still
has immunity from liability under the recreational user statute. Sanker v. Department of
Natural Resources (1982), 81-04478-AD; Theaker v. Portage Lakes State Park, Ct. of
Cl. No. 2006-04733-AD, 2007-Ohio-648.
       {¶ 12} In Miller v. Dayton (1989), 42 Ohio St. 3d 113, 114, 537 N.E. 2d 1294, the
Ohio Supreme 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.” The court in Miller additionally held that “the existence of statutory immunity
does not depend upon the specific activity pursued by the plaintiff at the time of the
plaintiff’s injury. Rather, the inquiry should focus on the nature and scope of activity for
which the premises are held open to the public.”        Miller, at 115.   The Miller court
explained: “Generally speaking, recreational premises include elements such as land,
water, trees, grass, and other vegetation. But recreational premises will often have
such features as walks, fences and other improvements.           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,
camp, hike, swim, or engage in other recreational pursuits?” Miller at 114-115. This
court has previously held the immunity provision of R.C. 1533.181 applies to property
damage incidents occurring in parking lots on defendant’s Park premises. Touvell v.
Ohio Dept. of Natural Resources, Ct. of Cl. No. 2008-09449-AD, 2009-Ohio-4267;
Johnson v. Catawba State Park, Ct. of Cl. No. 2009-07032-AD, 2010-Ohio-1951.
                                  Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us




FRED TEPKER

      Plaintiff

      v.

HUESTON WOODS STATE PARK

      Defendant

          Case No. 2009-08799-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION



          Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                   ________________________________
                                                   DANIEL R. BORCHERT
                                                   Deputy Clerk

Entry cc:

Fred Tepker                                        Charles G. Rowan
390 Timberhill Drive                               Department of Natural Resources
Hamilton, Ohio 45013                               2045 Morse Road, Building D-3
                                                   Columbus, Ohio 43229-6693
RDK/laa
6/3
Filed 7/20/10
Sent to S.C. reporter 11/5/10
