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Municipal Liability & Recreational User Laws


Posted on - 04/11/2007
by ABH

On April 19, 2001, the 10th Appellate District of Ohio [Franklin County] decided the case of Vinar v. Bexley. This interesting case is illustrative of some of the issues operators of two-wheeled vehicles face in the world of personal injury litigation. Even though the case involved a bicycle accident, the court’s decision applies with equal force to motorcycle riders!

Marvin Vinar was riding his bicycle on July 3, 1997. The roadway on which he was riding was maintained by the City of Bexley and was located on the grounds of the Jeffrey Mansion, a park in Bexley. Mr. Vinar apparently hit a “speed bump” on the roadway and crashed, suffering injury.

Mr. Vinar filed a lawsuit against the City of Bexley, alleging that:

• The City had placed the “speed bumps” on the roadway
• The speed bumps were dangerous to vehicle operators in that:
• They were not marked
• They were not rounded
• They were too high for safe use by anticipated users of the road.
• He also argued the speed bumps constituted a “nuisance” and he was injured as a direct result of the city’s maintaining a “nuisance.”

The City filed a “motion for summary judgment” arguing, in essence, that even if the court believed all of the facts alleged by Mr. Vinar, the City was still entitled to have the case dismissed based simply on the application of the law to those facts. The City initially argued that it was “immune” from liability based on “sovereign immunity” - an old legal doctrine still very much alive today which is based on the somewhat antiquated notion that “...the King can do no wrong...” When the City’s first motion was overruled by the trial court, the City changed its legal strategy and argued that it was immune from liability based on Ohio’s “Recreational User Statute,” Ohio Revised Code Section 1533.81. The trial court agreed with the City on this theory and dismissed the case. The bicycle operator appealed.

A “Recreational User Statute” of some sort is in effect in most, if not all, states. While the language varies, the main idea is that if one who owns land and opens up the land for use by so-called “recreational users” - bicycle operators, off road dirt bike riders, skateboarders, climbers, runners, dog walkers, etc - the landowner cannot be held liable for injuries from defects in the property suffered by such recreational users. These statutes, while focusing on private landowners, have also been held to apply to protect states and municipalities as well.

In Ohio, a landowner “owes no duty to a recreational user to keep the premises safe for entry or use” so long as no fee is charged to use the land. The issue in Vinar was the “character of the property upon which Plaintiff was injured.”

The court of appeals found Mr. Vinar’s argument that a “roadway” ran through the property to be determinative. A “roadway” is a public thoroughfare with no restriction of use. “As such, the roadway presumably is available to motorists (and bicyclists) for travel not related to recreational use,” according to the court. Where a municipality allows the motoring public to use the streets in a city park for travel not associated with “recreational activities” the court held that the immunity granted under recreational user statutes is inapplicable.

The court of appeals REVERSED the judgment previously entered for the City and sent the case back to the trial court for trial. Thus, the bicycle operator won the appeal.

Please note that the court expressed no opinion as to the validity of the arguments relative to the speed bumps. All the court of appeals did was to allow the Mr. Vinar the opportunity to move the case toward trial. A jury could still find that the speed bumps were not a “nuisance” or that the accident was not caused by the speed bumps but by his own negligence. However, I do commend Mr. Vinar’s attorney for coming up with a rather creative argument to keep his claim alive!

Motorcyclists face similar issues. In an earlier article, I told you about the motorcyclist who was severely injured when he rode over grain that had been spilled on the roadway. In that case, however, the court held that because the motorcycle operator was aware of the hazard and of the city’s efforts at cleaning it up, there was NO liability, even though the motorcyclist was directed by a police officer to ride through the grain! To ME, the police officer’s “OK” is an implicit contract with the public that the roadway is safe for ALL traffic, not just four wheeled traffic. The court of appeals in Vinar reached the opposite conclusion, finding that Mr. Vinar was at least entitled to his day in court to have a jury determine whether the speed bumps were dangerous!

GOOD LUCK & GOOD RIDING

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