[Cite as Pauley v. Circleville, 137 Ohio St.3d 212, 2013-Ohio-4541.]




PAULEY ET AL., APPELLANTS, v. THE CITY OF CIRCLEVILLE, APPELLEE, ET AL.
      [Cite as Pauley v. Circleville, 137 Ohio St.3d 212, 2013-Ohio-4541.]
Premises     liability—Recreational        users—R.C.       1533.181—City   park—Snow
        sledding—Property owner not liable to recreational user injured during
        recreational use, even if property contains a hazardous condition created
        by property owner.
    (No. 2012-1150—Submitted April 23, 2013—Decided October 16, 2013.)
      APPEAL from the Court of Appeals for Pickaway County, No. 10CA31,
                                     2012-Ohio-2378.
                                 ____________________
        KENNEDY, J.
                                       I. Introduction
        {¶ 1} Appellants, Jeremy Pauley and his mother, appeal from a judgment
of the Fourth District Court of Appeals that affirmed summary judgment in favor
of the city of Circleville regarding appellants’ civil action for injuries Jeremy
sustained while sledding in the city’s park.               We accepted the appellants’
discretionary appeal, which sets forth a single proposition of law: “Recreational
user immunity does not extend to man-made hazards upon real property that do
not further or maintain its recreational value.”
        {¶ 2} Under the recreational-user statutes (R.C. 1533.18 and 1533.181),
property owners who open their premises to recreational users free of charge are
immune from liability for injuries suffered by recreational users while they are
engaged in a recreational activity. Appellants urge this court to hold that if a
property owner modifies his or her property in a manner that creates a hazard
without promoting or preserving the recreational character of the property,
immunity does not apply. Finding no support in statutory or case law, we decline
                              SUPREME COURT OF OHIO




to adopt such an exception. Therefore, we affirm the judgment of the court of
appeals.
                          II. Facts and Procedural History
       {¶ 3} The city owns Barthelmas Park, which contains ball fields, a
playground, and various structures, such as a concession stand and picnic shelters.
Entry to the park is free of charge.
       {¶ 4} In the summer of 2006, the city was offered free topsoil that was
excavated from a nearby construction site. The city uses topsoil for numerous
projects, including reseeding the park.         Consequently, the city accepted
approximately 150 to 200 truckloads, which were taken to its maintenance facility
for storage. When that facility reached capacity, the remaining topsoil was taken
to the park and emptied onto the ground, where it formed two mounds
approximately 15 feet high.
       {¶ 5} On the afternoon of January 24, 2007, 18-year-old Jeremy Pauley
and his friends Kevin Baisden, Danielle Ziemer, and Natasha Cox decided to go
snow sledding at the park. Jeremy and Kevin began sledding at about 5 p.m.,
while the girls looked on. At approximately 6:00 p.m., as it began getting dark,
Jeremy decided on a new location for his last sled run, which was, in fact, one of
the mounds of dirt that had been stored at the park by the city. Kevin moved the
car so that its headlights illuminated the hill. Although there were other sled
tracks on the mound, this was the first time that Jeremy had sledded down it. In
his deposition, Jeremy asserted that “[t]o the very, very far left side [of the hill]
away from where I went sledding there was a little bit of brush or something, but
nothing around where I went down.”
       {¶ 6} Jeremy claimed that as he sledded down the hill, he “hit an
immovable object” and “instantly went numb” and could not move his body.
Realizing that Jeremy was critically injured, Kevin Baisden called 9-1-1. At the
time, Kevin did not notice any obstacle in Jeremy’s path. However, the day after




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the accident, Kevin went back to the park and observed an object that looked like
a railroad tie in the area where Jeremy was injured.
       {¶ 7} Jeremy suffered a broken neck, which caused him to become a
quadriplegic. He and his mother filed a complaint alleging that the city acted
negligently, recklessly, and wantonly in dumping debris in the park, which
resulted in a physical defect that caused Jeremy’s injuries. The complaint alleged
that “waste and debris * * * created an inherently dangerous situation which no
user of the park could have anticipated and thus substantially altered the nature
and characteristic of the public property.”
       {¶ 8} The trial court granted the city’s motion for summary judgment,
finding that the city was immune from suit under R.C. 1533.181. The court of
appeals affirmed the trial court’s judgment, with one judge dissenting. 2012-
Ohio-2378, 971 N.E.2d 410 (4th Dist.).
       {¶ 9} We accepted the appellants’ discretionary appeal. 133 Ohio St.3d
1422, 2012-Ohio-4902, 976 N.E.2d 913.
       {¶ 10} Appellants claim that “the recreational user immunity statute is
designed to preclude the right to recovery of civil damages only in specific
instances.”   Appellants contend that R.C. 1533.181 does not apply when a
property owner makes the property “more dangerous without promoting or
preserving recreational activities.”
       {¶ 11} The city argues that R.C. 1533.181 provides a “bright-line rule”:
“If a premises is freely open to the public for recreational purposes and a person is
injured while using the premises for a recreational purpose, the landowner has no
duty to that user to keep the premises safe.” The city argues that appellants
“improperly ask this Court to judicially create an exception or limitation to
recreational immunity that does not exist in the Statute.”




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                                    III. Analysis
                             Recreational-User Immunity
       {¶ 12} We begin our analysis by examining the statute, as well as
applicable case law.
       {¶ 13} R.C. 1533.181(A) states:


               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.


       {¶ 14} R.C. 1533.18 states:


               As used in sections 1533.18 and 1533.181 of the Revised
       Code:
               (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




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                               January Term, 2013




       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 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.


       {¶ 15} “Premises” under R.C. 1533.18(A) includes land owned by
municipalities and the state. LiCause v. Canton, 42 Ohio St.3d 109, 110, 537
N.E.2d 1298 (1989).
       {¶ 16} In determining whether immunity applies, courts examine the
essential character of the property. First, the property must be held open to the
public for recreational use, free of charge. See id. at syllabus; Fryberger v. Lake
Cable Recreation Assn., Inc.,     40 Ohio St.3d 349, 533 N.E.2d 738 (1988),
paragraph one of the syllabus. Compare Loyer v. Buchholz, 38 Ohio St.3d 65, 526
N.E.2d 300 (1988) (private pool not held open for public use is not protected by
R.C. 1533.181); Brinkman v. Toledo, 81 Ohio App.3d 429, 611 N.E.2d 380 (6th
Dist.1992) (even though sidewalks and streets are often used for recreational
purposes, such premises are not protected by recreational-user immunity because
they do not have the essential character of land held open to the public for
recreational use).
       {¶ 17} The character of the premises envisioned by the recreational-user
statute involves “the true outdoors,” because “[m]ost of the recreational activities
enumerated in R.C. 1533.18(B) are generally conducted in ‘the wide open
spaces,’ such as parks or wilderness tracts * * *.” Loyer at 67. Recreational
premises typically “include elements such as land, water, trees, grass, and other
vegetation.” Miller v. Dayton, 42 Ohio St.3d 113, 114, 537 N.E.2d 1294 (1989).




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       {¶ 18} However, “[t]o qualify for recreational user immunity, property
need not be completely natural, but its essential character should fit within the
intent of the statute.” Id. For example, a softball field requires certain manmade
elements, but those improvements do not change the essential character of the
property so as to remove it from the protection of the statute. The property is still
held open for public use for recreational purposes. Id. at 115. Compare Light v.
Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986) (a gymnasium, an
entirely manmade structure, “is not within the contemplation of the recreational
user immunity statutes”).
       {¶ 19} The types of recreational activities that qualify as a recreational use
are diverse.    R.C. 1533.181(B) lists hunting, fishing, trapping, camping,
swimming, operating a snowmobile, all-purpose vehicle, or four-wheel-drive
motor vehicle, and “other recreational pursuits” as examples of the types of
activities contemplated by the statute. And courts have broadly construed “other
recreational pursuits” to include sledding, Marrek v. Cleveland Metroparks Bd. of
Commrs., 9 Ohio St.3d 194, 459 N.E.2d 873 (1984); horseback riding, Crabtree v.
Shultz, 57 Ohio App.2d 33, 384 N.E.2d 1294 (10th Dist.1977); watching others
swim, Fetherolf v. Ohio Dept. of Natural Resources, 7 Ohio App.3d 110, 454
N.E.2d 564 (10th Dist.1982); motorcycle riding, Kelley v. Differential Corp., 3d
Dist. Hancock No. 5-81-35, 1982 WL 6787 (May 6, 1982); using a swingset, Vitai
v. Sheffield Lake, 9th Dist. Lorain No. 4045, 1987 WL 5561 (Jan. 21, 1987);
riding a merry-go-round, Miller v. Sheffield Lake, 9th Dist. Lorain No. 4133, 1987
WL 9477 (Apr. 8, 1987); riding a bicycle, Erbs v. Cleveland Metroparks Sys., 8th
Dist. Cuyahoga No. 53247, 1987 WL 30512 (Dec. 24, 1987); and watching others
play baseball, Buchanan v. Middletown, 12th Dist. Butler No. CA86-10-156, 1987
WL 16062 (Aug. 24, 1987).
       {¶ 20} However, activities such as pulling down a soccer goalpost
(Fuehrer v. Westerville City School Dist. Bd. of Edn., 61 Ohio St.3d 201, 574




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                                January Term, 2013




N.E.2d 448 (1991)), or marching in a parade on a public street (McGuire v.
Lorain, 9th Dist. Lorain No. 10CA009893, 2011-Ohio-3887, 2011 WL 3426186
(Aug. 8, 2011)), are not the types of activities envisioned by the recreational-user
immunity statutes.
         Property Owners Owe No Duty of Care to Keep Their Premises
                     Safe for Entry or Use by Recreational Users
       {¶ 21} Under R.C. 1533.181(A)(1), “[n]o owner owes any duty to a
recreational user to keep the premises safe for entry or use.” (Emphasis added.)
A duty is “[a] legal obligation that is owed or due to another and that needs to be
satisfied.” Black’s Law Dictionary 580 (9th Ed.2009). Generally speaking, “[i]f
there is no duty, no liability can follow.” Collins v. Sabino, 11th Dist. Trumbull
No. 96-T-5590, 1997 WL 531246, * 4 (Aug. 29, 1997), fn. 5. Consequently, an
owner cannot be held liable for injuries sustained during recreational use “even if
the property owner affirmatively created a dangerous condition.”           Erbs v.
Cleveland Metroparks Sys., at *2, citing Milliff v. Cleveland Metroparks Sys., 8th
Dist. Cuyahoga No. 52315, 1987 WL 11969 (June 4, 1987); see also Phillips v.
Ohio Dept. of Natural Resources, 26 Ohio App.3d 77, 79, 498 N.E.2d 230 (10th
Dist.1985) (property owner not liable to recreational user for willful and wanton
failure to warn of dangerous condition); Press v. Ohio Dept. of Natural
Resources, Ct. of Cl. No. 2005-100004-AD, 2006-Ohio-1024, 2006 WL 538106,
¶ 11 (property owner not liable to recreational user for injuries caused by owner’s
affirmative creation of a hazard). The determination of whether R.C. 1533.181
applies depends not on the property owner’s actions, but on whether the person
using the property qualifies as a recreational user. Estate of Finley v. Cleveland
Metroparks, 189 Ohio App.3d 139, 2010-Ohio-4013, 937 N.E.2d 645, ¶ 50 (8th
Dist.); Look v. Cleveland Metroparks System, 48 Ohio App.3d 135, 137, 548
N.E.2d 966 (8th Dist.1988).




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         {¶ 22} In this case, appellants admitted that Pauley was a recreational user
within R.C. 1533.181, as he clearly was. He entered the park, free of charge, to
go sledding. Thus, the city owed him no duty to keep the premises safe, and the
city’s alleged creation of a hazard on the premises does not affect its immunity.
         Miller v. Dayton and Ryll v. Columbus Fireworks Display Co., Inc.
         {¶ 23} In arguing that property owners should not be afforded immunity if
they “render[] their land more dangerous without promoting or preserving
recreational activities,” appellants rely primarily upon Ryll v. Columbus
Fireworks Display Co., Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d
372, and Miller v. Dayton, 42 Ohio St.3d 113, 537 N.E.2d 1294.
         {¶ 24} Appellants cite Ryll for the proposition that even if an injured
person was a recreational user within the meaning of R.C. 1533.18(B), the
property owner is not automatically afforded immunity in all cases. “In addition
to considering whether the plaintiff was a ‘recreational user’ within the meaning
of R.C. 1533.18(B),” appellants urge, “courts must also determine whether the
cause of the injury is attributable to premises that are truly recreational.”
         {¶ 25} Citing Miller, appellants then ask this court to hold that “[i]n
lawsuits involving man-made objects, liability has been precluded only when such
improvements enhance the recreational activities on the property.” We do not
agree.
         {¶ 26} In Ryll, a spectator was attending a fireworks show sponsored by
the city of Reynoldsburg when he was fatally injured by shrapnel from a
fireworks shell. The spectator’s estate sued the city, which asserted that it was
immune from liability under the recreational-user statutes. We held that the
recreational-user statute immunizes property owners from injuries that arise from
a defect in the premises. Because the shrapnel was not a defect in the premises,
immunity did not apply.




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       {¶ 27} In Miller, the plaintiff was playing in a softball tournament in a
park owned by the city of Dayton when he was injured sliding into second base.
The plaintiff sued the city seeking to recover for his injuries. The trial court
granted summary judgment to the city pursuant to R.C. 1533.181.
       {¶ 28} The court of appeals reversed the trial court’s judgment. The court
of appeals held that a baseball diamond is an artificial, manmade development,
bearing little resemblance to land in its natural state. Thus, the court of appeals
held that the plaintiff was not a recreational user, and the city was not immune.
       {¶ 29} This 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.” Miller, 42 Ohio St.3d 113, 537
N.E.2d 1294, at paragraph one of the syllabus.
       {¶ 30} In its analysis, this court stated that “the presence of man-made
improvements on a property does not remove the property from statutory
protection.” Id. at 114. “To qualify for recreational-user immunity, property need
not be completely natural, but its essential character should fit within the intent of
the statute.” Id. We further instructed that the premises should be “viewed as a
whole” to determine whether users enter to hunt, fish, trap, camp, hike, swim, or
engage in other recreational pursuits. Id. at 115.
       {¶ 31} Applying this test, we held that “[t]he essential character of [the
ballpark] is that of premises held open to the plaintiff, without fee, for recreational
purposes” and that improvements such as “dugouts, fences, base plates, and
similar manmade structures” did not change the park’s essential character as
outdoor premises used for recreational purposes within the recreational-user
statutes. Id. Thus, the plaintiff was a recreational user, and the city was immune
from suit.




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       {¶ 32} We find that the instant case is distinguishable from both Ryll and
Miller. In Ryll, the injury was caused by a fireworks shell, not by a defect on the
city’s premises, so R.C. 1533.181 did not immunize the city from liability. In the
instant case, the railroad-tie-like object was embedded in a mound of dirt that was
part of the park at the time Jeremy suffered his accident. Therefore, the injury
was caused by a defect in the premises, making Ryll inapplicable.
       {¶ 33} In Miller, there was no discussion of a defect in the premises.
Indeed, the recreational-user statutes protect property owners from such defects.
Rather, the question in Miller was whether manmade improvements, such as a
baseball diamond, changed the essential character of the property to something
other than an outdoor space used for something other than an outdoor recreational
activity. Accordingly, Miller lends no support to appellants’ proposition that
liability is precluded for injuries caused by manmade improvements only when
such improvements enhance the recreational activities on the property. Whether
the manmade improvements in Miller enhanced the recreational activities in the
park was irrelevant. The question was whether the improvements so changed the
essential character of the park as to take it outside the protection of the statute.
We cannot accept as reasonable any contention that the presence of a railroad tie
in a public park changes its essential character as a recreational space.
       {¶ 34} Moreover, to adopt appellants’ reading of Miller would require
property owners to make their property safe for entry and use in direct
contravention of the plain language in R.C. 1533.181(A)(1). “It is not this court’s
role to apply a judicially created doctrine when faced with statutory language that
cuts against its applicability.”    (Emphasis sic.)     Wallace v. Ohio Dept. of
Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 33.
       {¶ 35} In addition, adopting appellants’ interpretation of Miller would
conflict with the purpose of the recreational-user statute, which is to encourage
owners of premises suitable for recreational pursuits to open their land to public




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                                 January Term, 2013




use without fear of liability. Moss v. Dept. of Natural Resources, 62 Ohio St.2d
138, 142, 404 N.E.2d 742 (1980); Marrek v. Cleveland Metroparks Bd. of
Commrs., 9 Ohio St.3d at 198, 459 N.E.2d 873. Removing the protection of
immunity would undoubtedly cause property owners to restrict recreational use of
their properties, or close them entirely, from fear of liability.
        {¶ 36} Finally, even assuming arguendo that we agreed with appellants’
interpretation of Miller, it would not change the outcome in this case. Miller
requires that the property be “viewed as a whole,” and only when the “essential
character” of the property has been altered to something other than an outdoor
property on which outdoor recreational activities occur does immunity fall away.
        {¶ 37} The park in this case is an outdoor property with trees and grass
and is open to the public free of charge for picnicking and sporting activities such
as sledding, baseball, soccer, and basketball, as well as other recreational
activities that inevitably occur in parks, such as tinkering with a model plane,
reading poetry, or jogging. See Miller, 42 Ohio St.3d at 115, 537 N.E.2d 1294.
The alleged defect in this case is an object resembling a railroad tie. When
viewing the park property “as a whole,” the existence of a single railroad tie does
not change the essential character of the park to something other than a property
that is open for recreational use.
        {¶ 38} Critics may claim that our decision reaches a harsh result.
However, the language of the recreational-user statute is plain: a property owner
owes no duty to a recreational user to keep the property safe for entry or use.
Creating an exception to this immunity is a policy decision that comes within the
purview of the General Assembly, not the courts.              The General Assembly
understands how to draft laws that contain exceptions, but included no exception
that can be applied in this case. And we will not create an exception by judicial
fiat. Akron v. Rowland, 67 Ohio St.3d 374, 380, 618 N.E.2d 138 (1993).




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                                     Conclusion
       {¶ 39} Pauley entered the park free of charge and engaged in the
recreational activity of snow sledding on the date of his injury. Therefore, as he
conceded, he was a recreational user as defined in R.C. 1533.18(B). Therefore,
the city was not liable for his injuries, because it owes no duty to recreational
users to ensure that the park is safe for entry or use. Accordingly, we affirm the
judgment of the court of appeals.
                                                                 Judgment affirmed.
       O’DONNELL, LANZINGER, and FRENCH, JJ., concur.
       O’CONNOR, C.J., concurs in judgment only.
       PFEIFER and O’NEILL, JJ., dissent.
                             ____________________
       PFEIFER, J., dissenting.
       {¶ 40} I join Justice O’Neill’s dissent, although I do not share his
enthusiasm for the recreational-user statutes.        In particular, the immunity
provisions contained in R.C. 1533.18 and 1533.181 are overbroad and provide
unreasonable and, with respect to governmental entities, unconstitutional
protection to premises owners.
                             ____________________
       O’NEILL, J., dissenting.
       {¶ 41} I respectfully dissent from the majority in this case. The holdings
of the Fourth District Court of Appeals and the Pickaway County Court of
Common Pleas granting summary judgment to the city of Circleville should be
reversed, and this case should be remanded for trial. I agree wholeheartedly with
the letter, spirit, and intent of most recreational-user statutes. This court has said
that the purpose of Ohio’s recreational-user statute is “ ‘to encourage owners of
premises suitable for recreational pursuits to open their land to public use without
worry about liability.’ ” Marrek v. Cleveland Metroparks Bd. of Commrs., 9 Ohio




                                         12
                              January Term, 2013




St.3d 194, 198, 459 N.E.2d 873 (1984), quoting Moss v. Dept. of Natural
Resources, 62 Ohio St.2d 138, 142, 404 N.E.2d 742 (1980). There is no question
that a swimming-pool owner would simply close the pool if every child who
slipped on the wet pavement was entitled to litigate his boo-boo for years in a
court of competent jurisdiction.   However, when, as here, a property owner
converts a recreational park to a municipal dump site for construction fill and
debris, there is no statute in the land that should shield that tortfeasor from
accountability for such a disastrous action. As stated so eloquently by Justice
Cardozo in Palsgraf: “The risk reasonably to be perceived defines the duty to be
obeyed.” (Emphasis added.) Palsgraf v. Long Island RR. Co., 248 N.Y. 339, 344,
162 N.E. 99 (1928).
       {¶ 42} In Miller v. Dayton, this court extended recreational-user immunity
to improvements made to property. 42 Ohio St.3d 113, 537 N.E.2d 1294 (1989).
We said that 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, hike, swim, or engage in other recreational
       pursuits?”


Id. at 114-115 (quoting R.C. 1533.18(A)).
       {¶ 43} The majority asserts that our holding in Miller requires that the
property be viewed as a whole, and only when the “essential character” of the



                                       13
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entire property has been altered to something other than an outdoor property on
which outdoor recreational activities occur does immunity fall away. Majority
opinion at ¶ 36. The opinion goes on to say that “[w]hen viewing the park
property ‘as a whole,’ the existence of a single railroad tie does not change the
essential character of the park to something other than a property that is open for
recreational use.” Majority opinion at ¶ 37. Even if the majority’s overreliance
on the words “as a whole” is correct—and it is not—I disagree. And let’s be
accurate here—we are not talking about a single railroad tie.           That tie that
crippled this child was part of an overall scheme of disposal of huge mounds of
debris that the city had incredibly decided to place in the middle of a recreational
park! Cover it with a light dressing of snow, and the perfect killing field was
created. I would hold, as a matter of law, that when the owner of a property that
enjoys the immunity granted by the people of Ohio for recreational purposes
makes a conscious decision to use the property for other purposes, the immunity
ceases. See Huffman v. Willoughby,11th Dist. Lake No. 2007-L-040, 2007-Ohio-
7120, ¶ 50 (a lowhead dam “was not an improvement that was made to encourage
the recreational use of this part of the river. Instead, * * * it made that part of the
river inherently dangerous and thus not suitable for recreational use”); Vinar v.
Bexley, 142 Ohio App.3d 341, 755 N.E.2d 922 (10th Dist.2001) (because a
roadway through a park was available to the public for travel not related to a
recreational use, recreational-user immunity under R.C. 1533.181 is inapplicable).
See also Smith v. S. Pacific Transp. Co., Inc., 467 So.2d 70, 73 (La.App.1985)
(when persons are allowed to use the property for purposes not associated with
recreational activities, the statutes should not apply). To hold otherwise would be
to suggest, for example, that the city could store hazardous waste alongside the
running track, or possibly it could release wild animals from the city zoo into the
park area in the hopes that they would find dinner on their own. Would the current




                                          14
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state of the law in Ohio absolve such conduct, possibly with the addition of
attractive signs cautioning the children to “play at your own risk”?
       {¶ 44} In my opinion, it is wholly irrelevant to focus any attention
whatsoever on the actions or the knowledge of the injured child. The city made a
decision to dump huge mounds of debris into a city-owned park. When it did
that, it lost its “recreational user” immunity entirely. Accordingly, I respectfully
dissent.
       PFEIFER, J., concurs in the foregoing opinion.
                                ____________________
       Bashein & Bashein Co., L.P.A., and W. Craig Bashein; and Paul W.
Flowers Co., L.P.A., and Paul W. Flowers; and George R. Oryshkewych, for
appellants.
       Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, Todd M.
Raskin, and Frank H. Scialdone; and Law Offices of Douglas J. May and Patrick
J. Deininger, for appellee.
       Elk & Elk Co., Ltd., and Kimberly C. Young, urging reversal for amicus
curiae Ohio Association for Justice.
       Roetzel & Andress, L.P.A., and Stephen W. Funk, urging affirmance for
amicus curiae Ohio Association of Civil Trial Attorneys.
       Isacc, Brandt, Ledman & Teetor, L.L.P., Mark Landis, and Aaron M.
Glasgow, urging affirmance for amici curiae County Commissioners Association
of Ohio, Ohio Township Association, and Ohio Parks and Recreation Association.
       Ice Miller L.L.P., and Philip Hartmann, Rebecca K. Schaltenbrand, and
Stephen J. Smith; and John Gotherman, urging affirmance for amicus curiae Ohio
Municipal League.
                              ________________________




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