[Cite as Graham v. Like Milton State Park, 2011-Ohio-3535.]

                                      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




STEPHEN GRAHAM

       Plaintiff

       v.

LAKE MILTON STATE PARK

       Defendant

        Case No. 2010-11331-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION


                                         FINDINGS OF FACT
        {¶ 1} On July 11, 2010, plaintiff, Stephen Graham , suffered personal injury and
property damage when he drove his vehicle onto the premises of defendant, Lake
Milton State Park, and an unattended gate swung into the path of plaintiff's car striking
the hood, shattering the windshield, and striking plaintiff in the head. Plaintiff filed this
complaint seeking to recover $1,969.93, the cost of automobile repairs, ambulance
transport to the hospital, medical co-pays for follow-up care, and the replacement cost
for a GPS navigation system that had been mounted on the windshield. Plaintiff has
implied that defendant, as owner of the damage-causing gate, should bear liability for
the damages incurred. Plaintiff submitted the filing fee with the complaint.
        {¶ 2} Defendant denied liability based on the fact that plaintiff was a recreational
user of Lake Milton State Park at the time of the property damage occurrence.
Defendant explained that Lake Milton State Park is open to the public free of charge
and that plaintiff did not pay a fee to use the facilities.
        {¶ 3} Plaintiff filed a response wherein he contended that the recreational user
statute did not apply to the facts of this matter in that the gate in question was left
unsecured by a negligent act of defendant’s employee. Plaintiff cited the holding of Ryll
v. Columbus Fireworks Display, Co. 95 Ohio St. 3d 467, 2002-Ohio-2584, ¶15 wherein
the Supreme Court of Ohio found that inasmuch as the injury was caused by shrapnel
propelled from exploding fireworks and that the fireworks were not part of the
"premises" as defined in R.C. 1533.18(A), the immunity conferred by the statutory
language did not apply.       In addition, plaintiff argued that the relevant statute cited by
defendant was unconstitutional.1 Finally, plaintiff noted that his insurance company had
reimbursed the cost of the ambulance such that his damage claim was reduced to
$954.33.
                                  CONCLUSIONS OF LAW
       {¶ 4} Since this incident occurred at Lake Milton 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. "(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 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."      R.C. 1533.181 states:
       {¶ 7} "(A) No owner, lessee, or occupant of premises:
       {¶ 8} "(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."
       {¶ 9} 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.

       1
        Plaintiff’s constitutional challenge is not well-taken. See McCord v. Division of Parks and
Recreation (1978), 54 Ohio St. 2d 72, 8 O.O. 3d 77, 375 N.E. 2d 50.
1533.181(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 110, 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. Loudermilk v.
Buckeye Lake State Park, Ct. of Cl. No. 2003-10406-AD, 2004-Ohio-1344.
       {¶ 10} To the extent that plaintiff characterized the occurrence as having been
caused “by the negligence of a park employee, not by the premises,” the court finds that
defendant still has immunity from liability under the recreational user statute. See
Mitchell v. City of Blue Ash, 181 Ohio App. 3d 804, 2009-Ohio-1887, ¶10 (holding that
“the basis of the Ryll decision was not that the negligence of a city employee or other
person had contributed to the injury, but rather that the injury had not arisen from part of
the premises “ and thus concluding that “in cases decided by the Ohio Court of Claims
since the Ryll decision, that court has held the state government immune under the
recreational-user statute even where the plaintiff had alleged negligence on the part of
public employees.”) See also Gudliauskas v. Lakefront State Park, Ct. of Cl. No. 2004-
08464, 2005-Ohio-5598 (allegedly negligent driving on part of park ranger causing injury
to skater.)




                                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




STEPHEN GRAHAM

      Plaintiff

      v.

LAKE MILTON STATE PARK

      Defendant
         Case No. 2010-11331-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:

Stephen Graham                                    Charles G. Rowan
4448 Swan Lake Drive                              Department of Natural Resources
Copley, Ohio 44321                                2045 Morse Road, D-3
                                                  Columbus, Ohio 43229-6693
SJM/laa
3/21
Filed 4/5/11
Sent to S.C. reporter 7/8/11
