By Courtney E. Dunn, of Segal McCambridge
In Hernandez v. Bd. Of Educ. of the Toledo City Sch. Dist. (2024 Ohio Misc. LEXIS 107, March 26, 2024), the Court interprets Ohio’s “Recreational User” statute, partially denying Defendant’s summary judgment motion after determining that a high school football game attendee was not a recreational user of the premises.
Start High School employee, Plaintiff Norma Hernandez, was encouraged by her employer to show some school spirit by attending Start High events. To show her support, Plaintiff attended the first game of the season at the high school football stadium. When a fight broke out and fans were told to exit the premises, Plaintiff stepped off the sidewalk landing her foot in a hole, resulting in injury.
In Plaintiff’s subsequent personal injury suit, the School Board Defendant moved for summary judgment, arguing that (1) Plaintiff was a recreational user at the time of the incident and (2) it is entitled to damages limitations pursuant to Ohio Revised Code Title 27, Section (“R.C.”) 2744.05.
Was Plaintiff A Recreational User?
In addressing Defendant’s summary judgment motion, the Court was tasked with establishing whether Plaintiff’s showing of school pride rendered her a “Recreational User” under R.C. 1533.181(A). If so, then the School Board (as the owner of the premises) would not owe her a duty to keep the premises safe. Pursuant to the guiding statute, even if the recreational user is given permission to be on the premises, the premises owner need not assure that the premises are safe. See id.
A “Recreational User” is 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 premises to hunt, fish, trap, camp, hike, or swim, or to operate a snowmobile, all-purpose vehicle, or to engage in other recreational pursuits.” See R.C. 1533.18(B). Relevant considerations in this instance include whether Plaintiff was granted permission to be on the premises and whether she paid an entry fee to the School Board.
It is undisputed that Plaintiff was granted permission to enter the stadium; she was an employee of the School Board and was showing support for the team, as suggested by her employer, by attending. That brings the Court to whether the School Board received consideration for Plaintiff’s attendance. As an incentive to attend the game, Plaintiff’s cover charge was waived, so the School Board did not receive monetary compensation from Plaintiff. However, Plaintiff testified that her purpose for attending the game in the first place was because her employer encouraged her to do so, and she was being “TPS Proud.” Based on this reasoning, Plaintiff argues that, although the School Board did not receive an economic benefit, it did receive a tangible benefit from her attendance – it successfully encouraged its employees to support the school community vis-à-vis filling the stands.
The Court ultimately held that Plaintiff was not a recreational user. “In 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 types of activities for which the property is held open to the public.” When applying this analysis, the school stadium does not fall into the recreational pursuits delineated – hunting, fishing, camping, hiking, or swimming. None of these activities were taking place at the football stadium. The Court takes note of the fact that, while a consideration rather than a required prong of the analysis, the football stadium was not completely natural – an essential characteristic that should fit within the intent of the statute. See, e.g., Miller v. City of Dayton, 42 Ohio St. 2d 113 114, 537 N.E.2d 1294 (1989).
The question, then, becomes whether Plaintiff was an invitee or licensee of the Defendant. Did her attendance benefit Defendant or was it for her own pleasure or benefit? This brings us back to whether Defendant did, in fact, receive a tangible or economic benefit from her visit. See, e.g., Madison v. Woodlawn Cemetery Assn., 6th Dist. Lucas No. L-10-1131, 2010-Ohio-5650. Based upon the existing question of fact regarding a tangible benefit versus economic benefit, the Court partially denied the summary judgment motion.
Is Defendant Entitled To Statutory Immunity?
Second, Defendant argued that, pursuant to R.C. 2744.05, Plaintiff’s damages should be limited. R.C.2744.05 states that if a person has a claim against a political subdivision and that person has insurance coverage, the insurance carrier is responsible for the loss and the political subdivision is not responsible for subrogation payments for the insurance carriers. Plaintiff did not meet her burden (or make any arguments at all) in opposition on this argument. As a result, in accordance with R.C. 274405(A), Plaintiff’s benefits disclosed to the Court are deducted from any award against the School Board.
