Thursday 17 Oct 2013 by Steve Magas |
“Recreational User” is an important legal concept, actually concept[s], cyclists ought to be aware of. The Supremes of Ohio just came out with a new recreational user case involving injured people vs insured people and …wait for it… the victim loses again…
What impact does this case have on cyclists? Not a good one, that’s for sure-
The case, Pauley v. Circleville started in 2006, when Circleville obtained 150-200 free truckloads of free dirt. It was used for various purposes including leaving 2 large mounds – 15 feet tall – In January 2007 a group of kids decided to sled down one of the mounds. It was dark but they lit up the hill with car headlights. There were other sled marks around- no warnings. One kid went down the hill, hit something and was critically injured – he’s a quadriplegic. They couldn’t find what was struck that night, but the next day they found a railroad tie in the dirt mound.
Mom sued the city. The city claimed immunity under the “recreational user” statute. That law says that if you open you land up for free you are generally immune from lawsuits over defects in the property. The plaintiffs argued that when you CREATE the defect, one that’s hidden from view, there should be liability since the property owner is making the land MORE dangerous.
The court agreed with the City holding “[n]o owner owes any duty to a recreational user to keep the premises safe for entry or use.” Since there is “no duty” there can be no recovery – even if the land owner creates a blind, hidden defect that hurts someone. [Now, this wouldn’t apply if the owner “set a trap” I imagine – that is an “intentional” act]
You can read the case here – http://www.sconet.state.oh.us/ROD/docs/pdf/0/2013/2013-Ohio-4541.pdf
How does this impact bicycle riders.
First, if you ride on a bike trail you are riding on an area covered by the recreational user statute- if you are riding on a roadway, sidewalk or bike lane the rec. user law does NOT apply. If the owner of a bike trail creates a hazard – there is no liability.
While this case in Circleville was percolating, I had a case in Greene County involving a fellow who fractured his hip in a bike crash. The crash was caused by the failure of the county & a contractor to put down striping on the bike trail which would not be slippery when wet. I filed the suit and we went through discovery. However, the case law in this area was going so poorly that we decided not to push it further. I predicted that our current Supreme Court was going to whack the victims and protect the insurance companies… which is exactly what it does… in case after case…
The other “recreational user” concept you need to understand as a bicycle rider is the one which screws you over if you happen to get whacked by a cyclist on the bike trail.
If you ride your bike TO the bike trail, using roads and sidewalks then a “negligence” standard applies. If someone else is careless, negligent, and you get hurt as a result you have a claim against them for damages – your medical bills, lost wages, pain and suffering…
If someone is careless on the bike trail and you get hurt, you LOSE – you have NO claim against them. You are on the hook for YOUR OWN medical bills and wage loss. Why? Because courts have held that you become a “recreational user” when you enter the bike trail – sort of like someone playing soccer or softball. There is NO LIABILITY if you are a recreational user, even if somebody is ridiculously careless and you end up as a quadriplegic.
A friend of mine challenged this theory on a bike v. bike crash case in Warren County – and lost – took it to the court of appeals -and lost -tried to get into the Supreme Court, but they didn’t take the case. PRobably good that they didn’t… maybe a new judge or two will be elected and we can stand a better chance of winning this argument in the future.
There were two dissenting judges in the Pauley case – Pfeiffer & O’Neill. Justice Pfeiffer makes a cogent point –
- “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.