[Cite as Johnson v. Catawba State Park, 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




DAVID PARNELLI JOHNSON, JR.

       Plaintiff

       v.

CATAWBA STATE PARK

       Defendant

        Case No. 2009-07032-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, David Parnelli Johnson, Jr., filed this action against defendant,
Catawba State Park (Park), contending that his 2005 Dodge Ram 1500 pick up truck
was damaged as a proximate cause of negligence on the part of defendant. Plaintiff
recalled that he drove his truck to the Park at approximately 6:00 p.m. on June 25, 2009
and parked the vehicle in a lined parking space at a paved parking lot near the lake on
defendant’s premises. Plaintiff submitted a photograph depicting the parking lot, lake,
and shelter house. The photograph shows that the lake is located at the base of a small
hill and the space where plaintiff parked is an inclined area near the top of the hill.
Plaintiff related that, “I had taken my dog to the park to swim and it immediately began
to storm so I headed for the shelter at the park to wait it out.” Plaintiff noted that while
he was waiting in the shelter house he observed a Park owned dumpster roll down the
hill and strike his parked truck. Plaintiff submitted a photograph depicting the area
where the dumpster was placed before the June 26, 2009 storm began. The area
shown is a grassy median between parking spaces in defendant’s paved parking lot.
Plaintiff also submitted a photograph of the actual dumpster that struck his vehicle. The
photograph shows a four wheeled metal trash receptacle with a plastic lid.             The
dimensions of the dumpster appear to be approximately 5' by 4' by 3'. Plaintiff asserted
that defendant was negligent in failing to properly secure the dumpster and he has
consequently filed this complaint seeking to recover $500.00, an amount representing
expenses incurred for repairs (insurance coverage deductible). The $25.00 filing fee
was paid.
       {¶ 2} Plaintiff filed a witness statement (copy submitted) with defendant the day
after his damage incident.      In his statement, plaintiff recorded that he observed a
dumpster roll into the back of his parked truck while he was standing in the Park shelter
house during a storm. Plaintiff related that, “I stayed in the shelter house until the storm
passed by, but I decided to run to my truck when I thought it was safe enough to go.”
Plaintiff noted that, “[w]hen I was running to my truck trees were falling and debris was
flying everywhere around me.” According to plaintiff, he first noticed the damage to his
truck after he drove home from the park.
       {¶ 3} 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 free of charge and plaintiff did not pay a fee to use the facilities.
       {¶ 4} Since this incident occurred at Catawba State Park, defendant qualifies as
the owner of the “premises” under R.C. 1533.18, et seq.
       {¶ 5} “Premises” and “recreational user” are defined in R.C. 1533.18, as follows:
       {¶ 6} “(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.
       {¶ 7} “(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.”
       {¶ 8} R.C. 1533.181 states:
       {¶ 9} “(A) No owner, lessee, or occupant of premises:
       {¶ 10} “(1) Owes any duty to a recreational user to keep the premises safe for
entry or use;
       {¶ 11} “(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.)
       {¶ 12} 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, 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.
       {¶ 13} 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 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.
Consequently, plaintiff’s claim is denied.




                                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




DAVID PARNELLI JOHNSON, JR.

      Plaintiff

      v.

CATAWBA STATE PARK

      Defendant

       Case No. 2009-07032-AD

Clerk Miles C. Durfey


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.



                                         ________________________________
                                         MILES C. DURFEY
                                         Clerk

Entry cc:

David Parnelli Johnson, Jr.              Charles G. Rowan, Deputy Chief Counsel
141 Cedar Street                         Ohio Department of Natural Resources
Port Clinton, Ohio 43452                 2045 Morse Road, Building D-3
                                         Columbus, Ohio 43229-6693
RDK/laa
12/15
Filed 1/8/10
Sent to S.C. reporter 4/30/10
