[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Combs v. Ohio Dept. of Natural Resources, Div. of Parks & Recreation, Slip Opinion No. 2016-
Ohio-1565.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-1565
COMBS, APPELLEE, v. OHIO DEPARTMENT OF NATURAL RESOURCES, DIVISION
                     OF PARKS AND RECREATION, APPELLANT.

  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as Combs v. Ohio Dept. of Natural Resources, Div. of Parks &
                  Recreation, Slip Opinion No. 2016-Ohio-1565.]
Recreational-user statute—R.C. 1533.181—Injury to recreational user from rock
        thrown by mower is not an injury caused by defect in the premises.
   (No. 2014-1891—Submitted November 17, 2015—Decided April 19, 2016.)
              APPEAL from the Court of Appeals for Franklin County,
                           No. 14AP-193, 2014-Ohio-4025.
                                   _______________
        O’DONNELL, J.
        {¶ 1} The Ohio Department of Natural Resources (“ODNR”) appeals from
a judgment of the Tenth District Court of Appeals, which reversed a grant of
summary judgment in its favor in connection with an action filed by Richard Combs
                            SUPREME COURT OF OHIO




for injuries sustained when an ODNR boom mower threw a rock that struck him in
the eye.
       {¶ 2} R.C. 1533.181, the recreational user statute, provides that no
landowner owes any duty to a recreational user to keep the premises safe for entry
or use or extends any assurance in that regard. Thus, a landowner is not liable to a
recreational user for injuries caused by the defective condition of a recreational
premises. Here, however, the injuries resulted from the alleged negligent operation
of a boom mower, not from the condition of the premises. ODNR has a duty to
conduct mowing safely and can be held liable for the negligence of its employees
if it breaches that duty. Thus, the appellate court correctly reversed the grant of
summary judgment, and we affirm its judgment.
                          Facts and Procedural History
       {¶ 3} On July 27, 2011, Combs was celebrating his birthday at Indian Lake
State Park, which is open to the public without an admission charge. He spent the
night fishing and early the next morning walked to Pew Island, which affords better
fishing. As Combs walked across the causeway to Pew Island, Jerry Leeth, an
ODNR employee, was using a boom mower to cut weeds and brush along the
lakeshore. One of the mower blades hit the riprap—stones placed along the
waterline to prevent erosion—and threw a rock that struck Combs in the eye and
face and caused serious injuries.
       {¶ 4} Combs sued ODNR in the Court of Claims, alleging that Leeth
negligently operated the boom mower and caused his injury. The Court of Claims
granted ODNR’s motion for summary judgment, finding that because Combs was
a recreational user, ODNR had no duty to keep the park safe for his entry or use
and his negligence claim was barred as a matter of law.
       {¶ 5} The Tenth District Court of Appeals reversed the decision of the Court
of Claims, explaining that although the recreational user statute abolished the
property owner’s duty to keep the premises safe for entry and use by recreational




                                         2
                                January Term, 2016




users, it provides immunity only for injuries caused by the defective condition of
the premises. The appellate court held that because Combs claimed that he was
injured by the negligence of a park employee and not by a defect in the premises,
the recreational user statute did not apply.
                              Positions of the Parties
       {¶ 6} On appeal to this court, ODNR maintains that landowners who open
their lands to recreational users have absolute immunity for any injury that occurs
on the premises, contending that the recreational user statute precludes negligence
claims as long as the user entered the land without paying a fee. It states that
pursuant to R.C. 1533.181, the landowner owes no duty to a recreational user and
therefore cannot be held liable for any negligent acts or omissions. It further notes
that the General Assembly departed from the common law rule that treated
recreational users as licensees, “transforming them into, in essence, trespassers
under the common-law premises-liability regime.” Further, ODNR asserts, the
legislature could not have intended to discourage landowners from performing the
maintenance needed to make the premises safer and more enjoyable to recreational
users. And, lastly, it distinguishes the lead opinion in Ryll v. Columbus Fireworks
Display Co., Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372, because in
that case, it notes, the injury arose from a foreign object brought onto the land—
shrapnel from a firework shell—whereas in this case, Combs was injured when the
mower threw a rock, which ODNR claims was part of the premises.
       {¶ 7} Combs admits that he was a recreational user at the time of his injury
and that ODNR held Indian Lake State Park open for recreational use without
charge, but he contends that recreational user immunity attaches only when injury
results from the condition of the premises. He asserts that he was not injured by
the condition of the premises and that a landowner is not immune for its own active
negligence, citing cases from California, Utah, and Iowa holding that recreational




                                          3
                             SUPREME COURT OF OHIO




user immunity does not extend to acts of vehicular negligence committed by the
landowner or its employees on the premises.
       {¶ 8} Accordingly, we are asked to address what duty, if any, a landowner
owes to recreational users for alleged acts of negligence by employees occurring
on the premises.
                                 Law and Analysis
                         Common Law Premises Liability
       {¶ 9} At common law, the duty owed by a landowner to those who enter the
premises depended on the status of the entrant: invitee, licensee, or trespasser.
Englehardt v. Philipps, 136 Ohio St. 73, 77, 23 N.E.2d 829 (1939). A landowner
owes an invitee the duty to “exercise ordinary care to render the premises
reasonably safe,” Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E.
86 (1925), paragraph one of the syllabus, but “owes no duty to a trespasser or
licensee upon [the] land except to refrain from wanton, willful or reckless
misconduct which is likely to injure him,” Soles v. Ohio Edison Co., 144 Ohio St.
373, 59 N.E.2d 138 (1945), syllabus; see also Scheibel v. Lipton, 156 Ohio St. 308,
328-329, 102 N.E.2d 453 (1951) (discussing the duties owed to business visitors
and social guests).
       {¶ 10} However, the common law also recognizes that a landowner, “being
aware of the presence of a licensee, or even a trespasser, is required to use ordinary
care to avoid injury to him arising from the active negligence of such owner or his
servants.” Union News Co. v. Freeborn, 111 Ohio St. 105, 107, 144 N.E. 595
(1924). The duty to exercise reasonable care arises after the landowner knows or
should know that a licensee or trespasser is on the land. 2 Restatement of the Law
2d, Torts, Section 336, Comment d (1965). See also Keeton, Dobbs, Keeton &
Owen, Prosser and Keeton on the Law of Torts, Section 58, 397-398, and Section
60, 416 (5th Ed.1984); Salemi v. Duffy Const. Corp., 3 Ohio St.2d 169, 209 N.E.2d
566 (1965).




                                          4
                                January Term, 2016




                           The Recreational User Statute
       {¶ 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.” Loyer v. Buchholz, 38 Ohio St.3d 65, 66, 526 N.E.2d
300 (1988). R.C. 1533.181(A) provides:


               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.


       {¶ 12} R.C. 1533.18(A) defines “premises” to include “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.”          However, in
McCord v. Ohio Div. of Parks & Recreation, 54 Ohio St.2d 72, 74, 375 N.E.2d 50
(1978), we concluded that recreational user immunity also applies to state-owned
property, because the waiver of sovereign immunity in R.C. 2743.02(A) provides
that the liability of the state will be determined in accordance with the rules of law
applicable to suits between private parties.
       {¶ 13} Pursuant to R.C. 1533.18(B),


               “Recreational user” means a person to whom permission has
       been granted, without the payment of a fee or consideration to the




                                          5
                              SUPREME COURT OF OHIO




       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 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.


       {¶ 14} Thus, by enacting the recreational user statute, the General
Assembly amended the common law rule; as we stated in Fryberger v. Lake Cable
Recreation Assn., Inc., 40 Ohio St.3d 349, 351, 533 N.E.2d 738 (1988), “the
applicability of R.C. 1533.181 does not depend upon the common-law status of the
injured party as trespasser, licensee, social guest, or invitee.” In lieu of the common
law distinctions, id., the duty owed depends on “whether the person using the
property qualifies as a recreational user,” Pauley v. Circleville, 137 Ohio St.3d
212, 2013-Ohio-4541, 998 N.E.2d 1083, ¶ 21.
       {¶ 15} The immunity afforded by the recreational user statute is not
absolute; rather, R.C. 1533.181 limits the liability of landowners for injuries to
recreational users in three ways. First, R.C. 1533.181(A)(1) provides that no
landowner “[o]wes any duty to a recreational user to keep the premises safe for
entry or use” (emphasis added); second, R.C. 1533.181(A)(2) states that granting
permission to enter the property is not an assurance that the premises are safe; and
third, R.C. 1533.181(A)(3) provides that a landowner is not liable for injuries
caused by the act of a recreational user. The General Assembly could have
provided that a landowner owes no duty whatsoever to any recreational user or that
a landowner is not liable for injury caused by the act of the landowner or its
employees, but tellingly, it did not do so.
       {¶ 16} Our jurisprudence holding that the recreational user statute precludes
liability involves injuries arising from the condition of the premises, i.e., the lands,




                                           6
                                January Term, 2016




ways, and waters, and any buildings or structures thereon, or from the acts of
another recreational user. See Pauley at ¶ 32 (railroad-tie-like object embedded in
a mound of dirt covered in snow); LiCause v. Canton, 42 Ohio St.3d 109, 537
N.E.2d 1298 (1989) (cable strung between two posts); Miller v. Dayton, 42 Ohio
St.3d 113, 537 N.E.2d 1294 (1989) (softball field); Sorrell v. Ohio Dept. of Natural
Resources, Div. of Parks & Recreation, 40 Ohio St.3d 141, 532 N.E.2d 722 (1988)
(mound of dirt protruding from frozen surface of lake); Johnson v. New London, 36
Ohio St.3d 60, 521 N.E.2d 793 (1988) (above-ground cable installed to prevent
driving on retention embankment); Mitchell v. Cleveland Elec. Illum. Co., 30 Ohio
St.3d 92, 507 N.E.2d 352 (1987) (undertow in Lake Erie); Marrek v. Cleveland
Metroparks Bd. of Commrs., 9 Ohio St.3d 194, 459 N.E.2d 873 (1984) (recreational
user struck by another recreational user while sledding); Moss v. Dept. of Natural
Resources, 62 Ohio St.2d 138, 404 N.E.2d 742 (1980) (consolidated cases
involving one claimant injured by stepping in a hole and one who drowned);
McCord v. Ohio Div. of Parks & Recreation, 54 Ohio St.2d 72, 375 N.E.2d 50
(1978) (drowning at a designated swimming area at a lake).
        {¶ 17} Notably, Pauley, 137 Ohio St.3d 212, 2013-Ohio-4541, 998 N.E.2d
1083, indicated that R.C. 1533.181(A)(1) precludes liability only for injuries that
arise from a defect in the premises. In holding that a landowner has no duty to keep
manmade improvements and conditions on the land safe for recreational users, we
distinguished the facts in Ryll v. Columbus Fireworks Display Co., Inc., 95 Ohio
St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372, where a majority of the court agreed
that the recreational user statute did not bar recovery to a spectator fatally injured
by shrapnel from a fireworks shell while attending a fireworks show at a public
park. We noted that according to Ryll, “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.” (Emphasis
sic.)   Pauley at ¶ 26.    In contrast, we explained, the railroad-tie-like object




                                          7
                             SUPREME COURT OF OHIO




embedded in a mound of dirt that had caused the claimant’s injuries “was part of
the park,” id. at ¶ 32; thus, “the injury was caused by a defect in the premises,” id.,
and the landowner therefore was not liable, id. at ¶ 39.
       {¶ 18} The recreational user statute does not expressly abrogate a
landowner’s common law duty to exercise reasonable care to avoid negligently
injuring those on the premises, and “ ‘in the absence of language clearly showing
the intention to supersede the common law, the existing common law is not affected
by the statute, but continues in full force.’ ” Vaccariello v. Smith & Nephew
Richards, Inc., 94 Ohio St.3d 380, 384, 763 N.E.2d 160 (2002), quoting Carrel v.
Allied Prods. Corp., 78 Ohio St.3d 284, 287, 677 N.E.2d 795 (1997). Accordingly,
the recreational user statute does not limit a landowner’s liability for a negligently
inflicted injury that does not arise from the condition of the premises.
       {¶ 19} Our interpretation of R.C. 1533.181 accords with decisions of our
sister supreme courts declining to expand recreational user immunity beyond
injuries arising from the condition of the premises. See, e.g., Klein v. United States,
50 Cal.4th 68, 72, 112 Cal.Rptr.3d 722, 235 P.3d 42 (2010) (“The statutory phrase
‘keep the premises safe’ is an apt description of the property-based duties
underlying premises liability, a liability category that does not include vehicular
negligence”); Dickinson v. Clark, 2001 ME 49, ¶ 2, 767 A.2d 303 (holding that the
Maine recreational use statute does not apply to a claim alleging negligent
supervision and instruction on the use of a wood splitter); Young v. Salt Lake City
Corp., 876 P.2d 376, 378 (Utah 1994) (explaining, in a case involving the collision
of a maintenance vehicle with a bicyclist, “The operative language of the Act does
not purport to relieve landowners of their separate duty to conduct themselves in a
reasonably safe manner while on the premises”); Scott v. Wright, 486 N.W.2d 40,
42 (Iowa 1992) (holding that the landowner could be liable for the negligent
operation of a tractor, because “[n]othing in the language of [Iowa’s recreational




                                          8
                                 January Term, 2016




use statute] suggests a legislative intent to immunize all negligent acts of
landowners, their agents, or employees” [emphasis sic]).
        {¶ 20} In this case, the injuries to Combs did not arise from a defective
condition of the premises but rather from alleged negligent mowing when the boom
mower struck the riprap.        R.C. 1533.181 therefore does not apply in these
circumstances.
                                     Conclusion
        {¶ 21} No owner, lessee, or occupant of premises owes any duty to a
recreational user to keep the premises safe for entry or use, assures by giving
permission to enter that the premises are safe, or is liable for injuries caused by the
act of other recreational users. R.C. 1533.181 is limited in scope and does not apply
to the alleged negligence of a maintenance worker operating a boom mower.
        {¶ 22} Here, the evidence shows that the injury to Combs arose from the
alleged negligent operation of a boom mower, and therefore the recreational user
statute does not preclude liability for such a claim if Combs can establish that
negligence.
        {¶ 23} Accordingly, we affirm the judgment of the appellate court.
                                                                  Judgment affirmed.
        PFEIFER, J., concurs.
        O’CONNOR, C.J., and O’NEILL, J., concur in judgment only.
        KENNEDY, J., dissents with an opinion that LANZINGER and FRENCH, JJ.,
join.
                                _________________
        KENNEDY, J., dissenting.
        {¶ 24} Respectfully, I dissent. This court has held that the recreational-user
statute, R.C. 1533.181, abrogates the common-law premises-liability doctrine.
Fryberger v. Lake Cable Recreation Assn., Inc., 40 Ohio St.3d 349, 351, 533
N.E.2d 738 (1988); Loyer v. Buchholz, 38 Ohio St.3d 65, 68, 526 N.E.2d 300




                                          9
                              SUPREME COURT OF OHIO




(1988), fn. 3. See McCord v. Ohio Div. of Parks & Recreation, 54 Ohio St.2d 72,
74, 375 N.E.2d 50 (1978). Therefore, based on the facts presented in this case, the
Court of Claims did not err in granting summary judgment in favor of the Ohio
Department of Natural Resources, Division of Parks and Recreation. I would
reverse the judgment of the Tenth District Court of Appeals and reinstate the order
of the Court of Claims.
       {¶ 25} The question before the court addresses the scope of the immunity
afforded a property owner who is sued by an injured recreational user. In affirming
the appellate court, the majority holds that the “recreational user statute does not
expressly abrogate a landowner’s common law duty to exercise reasonable care to
avoid negligently injuring those on the premises.” Majority opinion at ¶ 18. In
support of that conclusion, the majority cites four cases from “our sister supreme
courts.” Id. at ¶ 19. However, the facts of all those cases can be distinguished from
the facts of the case before us.
       {¶ 26} In Klein v. United States, a cyclist in the Angeles National Forest
was injured in a head-on collision with a vehicle driven by a volunteer for the
United States Fish and Wildlife Service. 50 Cal.4th 68, 71, 112 Cal.Rptr.3d 722,
235 P.3d 42 (2010). The California high court, in a four-to-three decision on a
certified question of law, concluded that the state’s recreational-user statute did not
apply, because the statutory language requiring a property owner to “keep the
premises safe” did not “shield a[n owner] from liability to a recreational user for
personal injury resulting from” vehicular negligence. Id. at 87.
       {¶ 27} In Dickinson v. Clark, a minor suffered an injury while using a wood
splitter with the permission of the landowner, despite the manufacturer’s label
warning that it not be used by a minor. 2001 ME 49, 767 A.2d 303, ¶ 2. The
recreational-user statute in Maine provides that an “ ‘owner * * * of premises does
not have a duty of care to keep the premises safe for entry or use * * * or to give
warning of a hazardous condition.’ ” Id. at ¶ 6, quoting Me.Rev.Stat.Ann. Title 14,




                                          10
                                January Term, 2016




Section 159-A. A complaint alleging negligent “supervision and instruction” on a
piece of equipment is not a premises liability claim. Id. at ¶ 12.
        {¶ 28} In Young v. Salt Lake City Corp., a city maintenance vehicle collided
with a cyclist on a road that was, on the day of the accident, designated by ordinance
for bicycle and pedestrian traffic only. 876 P.2d 376, 377 (Utah 1994). The Utah
Supreme Court held that the recreational-user statute applies to premises liability,
not to liability for claims of negligence in the operation of a vehicle. Id. at 379.
        {¶ 29} Last, in Scott v. Wright, a driver of a tractor lost control, causing
injury to a rider who fell off and was pinned under the hay wagon the tractor was
pulling. 486 N.W.2d 40, 41 (Iowa 1992). The Iowa Supreme Court held that the
duties addressed by the state’s recreational-user statute had “no bearing on the
case,” id. at 43, and that the tractor driver’s negligence was outside the scope of the
statute. id. at 42.
        {¶ 30} The common thread in the cases from our sister courts is that the
injuries in those cases resulted from something other than the land. In an attempt
to avoid the application of the recreational-user statute in this case, the majority
seizes upon the fact that a rock was thrown by a boom mower and claims that
Combs’s injury was the result of the mower operator’s negligence. Based on this
court’s precedent, however, this fact is of no consequence.
        {¶ 31} Combs admits that he was a recreational user and claims that he was
injured by a rock. “[R]ecreational premises 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). 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.)
If a “recreational user is injured while engaged in recreational pursuit on such land,”
the landowner is immune. LiCause v. Canton, 42 Ohio St.3d 109, 537 N.E.2d 1298
(1989), syllabus.
        {¶ 32} As we held in Pauley v. Circleville:




                                          11
                            SUPREME COURT OF OHIO




       [A]n 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., [8th Dist.
       Cuyahoga No. 53247, 1987 WL 30512 (Dec. 24, 1987)] 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).


137 Ohio St.3d 212, 2013-Ohio-4541, 998 N.E.2d 1083, ¶ 21.
       {¶ 33} It is undisputed that Combs was a recreational user. His complaint
alleges that the rock that was thrown by the mower was from a layer of rock placed
on the waterline to control erosion. The fact that a mower threw the rock does not
alter the outcome.
       {¶ 34} The recreational-user statute imposes no legal duty on a landowner
to keep property “safe for entry or use,” R.C. 1533.181(A)(1), and absent a legal




                                        12
                                     January Term, 2016




duty, “ ‘no liability can follow,’ ” Pauley at ¶ 21, quoting Collins v. Sabino, 11th
Dist. Trumbull No. 96-T-5590, 1997 WL 531246, *4 (Aug. 29, 1997), fn. 5.
         {¶ 35} The majority also holds that the immunity afforded property owners
is not absolute but arises only when the recreational user suffers an injury due to
the “condition of the premises.” Majority opinion at ¶ 5. The phrase “condition of
the premises” is not found in the recreational-user statute, but our holding in Ryll v.
Columbus Fireworks Display Co., Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769
N.E.2d 372, suggests that the injury suffered by a recreational user must have some
nexus with the premises. Therefore, the application of Ryll here is misplaced.
         {¶ 36} In Ryll, a spectator attending a fireworks show sponsored by the city
of Reynoldsburg was killed when a defective shell exploded. A court of appeals
held that Reynoldsburg was immune from liability under the recreational-user
statute. We recognized that the recreational-user statute states that a landowner
does not have a duty to a recreational user to keep land safe for entry or use. Id. at
¶ 15. We held that the recreational-user statute did not afford Reynoldsburg
immunity, because “[t]he cause of the injury * * * was shrapnel from fireworks,
which is not part of ‘privately-owned lands, ways, waters, and * * * buildings and
structures thereon.’ ”1 Id., quoting R.C. 1533.18(A).
         {¶ 37} Unlike in Ryll, in this case, Combs’s injury was caused by a rock that
was part of the land.          Therefore, Ryll does not preclude application of the
recreational-user statute.


                  Critics may claim that our decision reaches a harsh result.
         However, the language of the recreational-user statute is plain: a



1
  Although the language quoted in Ryll refers to “privately-owned lands, ways, and waters, and * *
* buildings and structures thereon,” R.C. 1533.18(A), this court has held that the recreational-user
statute applies to state-owned land as well. McCord, 54 Ohio St.2d at 74, 375 N.E.2d 50.




                                                13
                             SUPREME COURT OF OHIO




       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).


Pauley, 137 Ohio St.3d 212, 2013-Ohio-4541, 998 N.E.2d 1083, at ¶ 38.
       {¶ 38} Because this court has held that the recreational-user statute, R.C.
1533.181, abrogates the common-law premises-liability doctrine, Fryberger, 40
Ohio St.3d at 351, 533 N.E.2d 738, and Loyer, 38 Ohio St.3d at 68, 526 N.E.2d
300, fn. 3, under the facts presented here, the Court of Claims did not err in granting
summary judgment in favor of the Ohio Department of Natural Resources, Division
of Parks and Recreation. Therefore, I would reverse the judgment of the Tenth
District Court of Appeals and reinstate the order of the Court of Claims.
Accordingly, I respectfully dissent.
       LANZINGER and FRENCH, JJ., concur in the foregoing opinion.
                              ____________________
       Arthur C. Graves Co., L.P.A., and Arthur C. Graves, for appellee.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, and Eric A. Walker, Assistant
Attorney General, for appellant.
       Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for amicus
curiae, Ohio Association for Justice.
                              ____________________




                                          14
