Uninsured and Underinsured Motorists Claims by Kentucky and Ohio Cyclists

Let’s face it.  Cycling crashes can be catastrophic.  Whether you are riding a UCI Limit fifteen pound carbon fiber marvel or a thirty-five pound cruiser, you are no match for a quarter ton vehicle or – even worse — a three quarter ton truck or SUV.

Unfortunately, “might makes right” when a car, truck or SUV crashes into a cyclist.  The cyclist never wins that battle.  The results can be catastrophic.  A cyclist can face enormous medical bills, lost wages or lost time from work, and tremendous pain and suffering.  To add insult to (literally) injury, the driver of that vehicle may not be carrying auto liability insurance or only state minimum auto liability insurance coverage.  If you are hit in Kentucky or Ohio, those limits may only be $25,0000.  Unless you skinned your knee, $25,000 does not go far in this day and age.

Not to worry, you have Uninsured/Underinsured Motorist (UM/UIM) Coverage on your own auto policy to cover negligent drivers and irresponsible drivers who do not carry sufficient liability coverage, right?  Think Again.  You may have No Coverage at all for your cycling accident despite years of loyal premium payments to your automobile liability insurance carrier.

Whether you are entitled to UM or UIM Benefits under your policy following a vehicle-cyclist crash will be determined by four things:

(1) who is at fault and by how much (let’s face it, sometimes cyclists are at fault too);

(2) the State you purchased your UM/UIM policy;

(3) whether that UM/UIM policy is personal or commercial; and

(4) the language of that policy as the devil is always in the detail.

Who was at Fault?

Unlike a Medical Payments Provision in your Homeowners Policy or your Auto Policy, UM/UIM Benefits are not automatically paid just because you were in a crash.  This article will not address questions of fault or comparative fault of the cyclist.  Suffice it to say in most crashes, the motorist very rarely admit that they were responsible for causing the crash.  If that is the case, their, and potentially your own UM/UIM Insurance Carrier will likely “take their side.”  If an insurance company can avoid paying benefits, it will.  If an insurance company can delay making payments, it will. Despite humorous or reassuring ad campaigns, an insurance company is in the business of turning a profit for its shareholders.  Making payments to you under UM/UIM policies reduces the profits for its shareholders.  The same may hold true with regard to compensation paid to the employees who are charged with negotiating fair compensation for your injuries and damages.

Where Did You Purchase Your UM/UIM Policy?

If your crash occurred in the same State where you purchased your insurance, the initial question of what State’s law will apply is never at issue-because it is the same!  However, if you purchased your UM/UIM policy in one State, but your crash was in another State, “Choice of Law” questions will arise as to which State’s law will govern a court’s analysis of the policy.  If you find yourself in that situation, do not try to navigate those waters alone.  Get a lawyer!  Seasoned judges and lawyers struggle with Choice of Law analysis and there are literally hundreds of legal decisions across the country which have dealt with conflicting legal analysis between States on how UM/UIM policies should be interpreted and applied.

I am licensed in both Kentucky and Ohio and this article addresses both the Commonwealth of Kentucky’s and State of Ohio’s jurisprudence on UM/UIM Coverage.  The analysis is very different.  As explained below, a cyclist who purchased an UM/UIM policy in Kentucky and was injured in Kentucky will likely fare much better in recovering UM/UIM Benefits than a similarly situated cyclist in the State of Ohio.

Kentucky Jurisprudence on UM/UIM Coverage

Like most States, the provision of UM/UIM Coverage is governed by statute in Kentucky.  “UM” (Uninsured Coverage) is different than “UIM” (Underinsured Motorist Coverage) and Kentucky has one statute addressing each circumstance.

As the name would indicate, UM coverage responds where a motorist was “running bare” or driving with no insurance at all.  UIM coverage responds where the motorist was carrying state minimum limits or limits that are less than your UIM coverage limits.

KRS 304.20-020 governs UM coverage and states as follows:

(1) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in KRS 304.39-110 under provisions approved by the commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided that any named insured shall have the right to reject in writing such coverage; and provided further that the rejection shall be valid for all insureds under the policy, and unless a named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal, reinstatement, substitute, replacement, or amended policy issued to the same named insured by the same insurer or any of its affiliates or subsidiaries.

 (2) For the purpose of this coverage the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency; an insured motor vehicle with respect to which the amounts provided, under the bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such motor vehicle, are less than the limits described in KRS 304.39-110; and an insured motor vehicle to the extent that the amounts provided in the liability coverage applicable at the time of the accident is denied by the insurer writing the same.

 (3) Protection against an insurer’s insolvency shall be applicable only to accidents occurring during a policy period in which its insured’s uninsured motorist coverage is in effect where the liability insurer of the tortfeasor becomes insolvent within one (1) year after such an accident. Nothing herein contained shall be construed to prevent any insurer from affording insolvency protection under terms and conditions more favorable to its insureds than is provided hereunder.

 (4) In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.

In layperson’s terms, KRS 304.20-020 makes underinsured motorist coverage mandatory or automatic on any liability insurance purchased in Kentucky up to the state minimum coverage of $25,000. These means that if you did not go out and purchase additional UM coverage, you would have $25,000 in coverage available if you were struck by an uninsured driver.  The only exception to the mandatory nature of KRS 304.20-020 is where the injured cyclist had their own auto policy but declined or “rejected” UM coverage in writingFurther, it should be noted that additional UM coverage above the $25,000 can be purchased by the cyclist, but it is not mandatory for the insurance company to offer it.

KRS 304.39-320 governs UIM coverage and states as follows:

(1) As used in this section, “underinsured motorist” means a party with motor vehicle liability insurance coverage in an amount less than a judgment recovered against that party for damages on account of injury due to a motor vehicle accident.

 (2) Every insurer shall make available upon request to its insureds underinsured motorist coverage, whereby subject to the terms and conditions of such coverage not inconsistent with this section the insurance company agrees to pay its own insured for such uncompensated damages as he may recover on account of injury due to a motor vehicle accident because the judgment recovered against the owner of the other vehicle exceeds the liability policy limits thereon, to the extent of the underinsurance policy limits on the vehicle of the party recovering.

* * *

(5) The underinsured motorist insurer is entitled to a credit against total damages in the amount of the limits of the underinsured motorist’s liability policies in all cases to which this section applies, even if the settlement with the underinsured motorist under subsection (3) of this section or the payment by the underinsured motorist insurer under subsection (4) of this section is for less than the underinsured motorist’s full liability policy limits. The term “total damages” as used in this section means the full amount of damages determined to have been sustained by the injured party, regardless of the amount of underinsured motorist coverage. Nothing in this section, including any payment or credit under this subsection, reduces or affects the total amount of underinsured motorist coverage available to the injured party.

Unlike the $25,000 in mandatory UM coverage pursuant to KRS 304.20-020, UIM coverage is entirely optional in Kentucky: “Every insurer shall make available upon request to its insureds underinsured motorist coverage[.]”  The coverage must be requested.

Kentucky, like several other States, treats UM/UIM coverage as “personal” and “portable”, meaning your coverage follows you as the insured (“personal” to you) no matter what vehicle you are driving or in the case of a cyclist, what you are riding.  Per Judge Van Tatenhove in Foster v. American Fire & Casualty Co. (E.D. KY), 2015 WL 2097735 (E.D. KY), “Kentucky courts have long held that UIM coverage—precisely like UM coverage—is ‘personal to the insured … and is not connected to any particular vehicle.’ Sparks v. Trustguard Ins. Co., 389 S.W.3d 121, 126 (Ky.Ct.App.2012) (citing Dupin v. Adkins, 17 S.W.3d 538, 543 (Ky.Ct.App.2000)).”

“This means that UIM coverage follows an insured person as opposed to any particular vehicle (i.e., the policy covers each insured as a driver, a passenger, a pedestrian, or a bystander, whether inside or outside a vehicle).”  Pennington v. State Farm Mut. Auto. Ins., 553 F.3d 447 (6th Cir. 2009).

Personally, I am partial to the Supreme Court of Hawaii’s (borrowed from the Supreme Court of Connecticut) elucidation of the personal nature of UM/UIM coverage:

[T]he following propositions are established elements of this state’s insurance law: UM insurance coverage is personal to the named insured * * * [and] a named insured, injured by an uninsured motorist from whom the named insured is legally entitled to recover damages, is entitled to UM coverage no matter where he or she is injured, whether the injury occurs while the named insured is (a) occupying an insured motor vehicle, (b) occupying an uninsured but owned motor vehicle, (c) occupying an unowned motor vehicle, (d) on a motorcycle, (e) on a bicycle, (f) on horseback, (g) on a pogo stick, (h) on foot, or (i) in a rocking chair on a front porch.

Dines v. Pacific Ins. Co., Ltd., 78 Hawai’i 325, 893 P.2d 176 (1995) (citations omitted);  but see, Bright v. First Ins. Co. of Hawaii Ltd., 91 Hawai’i 299 (Ct. App. 1999)(finding cyclist’s accident did not arise out of a “motor vehicle accident” and no-fault coverage did not apply).

Following this clear and straightforward reasoning, if a cyclist or a pogo stick-ist is injured by an uninsured or underinsured motorist, his or her personal UM/UIM policy will respond.  Period.  Full stop.  End of Story.  Unless you are in Ohio.  And unless you are claiming coverage under a commercial UM/UIM coverage.

Ohio Jurisprudence on UM/UIM Coverage

While not as strong or straightforward in its reasoning, the Ohio Supreme Court way back in 1994, reached a similar conclusion finding the “occupying” language in a UM policy invalid in Martin v. Midwestern Group Ins. Co.(1994), 70 Ohio St.3d 478.  The UM policy at issue in Martin required the insured to be “occupying” an automobile “listed” in the policy.  Because the injured insured was not in a car listed on his UM policy’s declaration page, his insurer, Midwestern Group, flatly refused to honor its obligations to pay UM benefits.  The Ohio Supreme Court found that the “occupying” requirement violated the then-current version of R.C. 3937.18 as UM coverage is designed to cover people, not cars:

Because we do not believe Hedrick is in accord with the law of our state, which is that uninsured motorist coverage was designed by the General Assembly to protect persons, not vehicles, we now expressly overrule it. If an insured is negligently injured by an uninsured motorist, he cannot be denied uninsured motorist coverage by a policy exclusion requiring that he be occupying an insured automobile under the policy.

Accordingly, we hold that an automobile liability insurance policy provision which eliminates uninsured motorist coverage for persons insured thereunder who are injured while occupying a motor vehicle owned by an insured, but not specifically listed in the policy, violates R.C. 3937.18 and is therefore invalid.

*** Pursuant to R.C. 3937.18(A)(1), such insurance must provide coverage “for bodily injury * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * *.” The statute does not permit insurers to eliminate this required coverage on the basis that the injury was incurred in a vehicle not listed in the policy.

Martin, supra at 482.

Martin v. Midwestern Group was decided on October 5, 1994.  Shortly thereafter the Lobbyists were on the move.  Within 15 days Senate Bill 1994 S 20 was passed.  One must note the convenience and proximity of Ohio’s State House to many insurance companies headquartered in Columbus, Ohio.  For some Insurance Executives and/or Lobbyists, the Ohio State House is nothing more than a walk of a few blocks.

R.C. 3937.18 was amended no less than six times to reach the current version of Ohio’s “Uninsured and Underinsured Motorist Coverage Statute.  In 2008 the Supreme Court reversed the Martin holding finding that it had been superseded by the revisions to R.C. 3937.18 in Lager v. Miller-Gonzalez (2008), 120 Ohio St.3d 47.

The Ninth District Court of Appeals notes this reversal of fortune for Ohio insureds:

“It is important to note at the outset that the posture of this case is different than many other cases interpreting the term “occupying.” This is perhaps due in part to the fact that exclusions like the one in this policy were invalid under previous versions of R.C. 3937.18. See Martin v. Midwestern Group Ins. Co., 70 Ohio St.3d 478 (1994), paragraph three of the syllabus.  R.C. 3937.18(I) now permits this type of exclusion. See generally State Farm Mut. Auto. Ins. Co. v. Grace, 123 Ohio St.3d 471, 2009–Ohio–5934, ¶ 26–28.

Darno v. Davidson (9th Dist. 2013), 2013-Ohio-4262 at ¶7.

The now-current version R.C. 3937.18 favors insurance companies in all sorts of ways.  Generally speaking, R.C. 3937.18(I) permits a laundry list of “exclusions” to coverage that permits insurance companies to deny UM/UIM benefits to premium-paying insureds in Ohio.

Specific to cyclists, R.C. 3937.18(I)(4) legislatively destroys the personal and portable nature of UM/UIM coverage recognized by Kentucky Courts and other States.  Subsection (I)(4) permits an insurer to limit UM/UIM coverage to “covered” vehicles which are specifically listed in the declarations page of your policy.

How many of you have listed your bicycles as “covered” vehicles in your UM/UIM coverage?  I suspect before reading this, you never gave the issue a moment’s consideration.  R.C. 3937.18(I)(4) is a trap for the unwary. It states:

(I) Any policy of insurance that includes uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages may, * * *  include terms and conditions that preclude coverage for bodily injury or death suffered by an insured under specified circumstances, including but not limited to any of the following circumstances:

* * *

(4) While any employee, officer, director, partner, trustee, member, executor, administrator, or beneficiary of the named insured, or any relative of any such person, is operating or occupying a motor vehicle, unless [said person] is operating or occupying a motor vehicle for which uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages are provided in the policy;

Where does this leave a cyclist in Ohio?  In short, without any legislative protection.  Your insurance company can avail itself of this Statute and argue (if the policy language permits) that (1) you were on a bicycle, not a “motor vehicle” and (2) your bike was not “covered” because it was not listed or “provided” for in the policy.

This result is exactly what Ohio legislators intended when they wrote into law the following language: “Any policy of insurance that includes uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages may, * * *  include terms and conditions that preclude coverage for bodily injury” found in R.C. 3937.18.

In fact, Ohio legislators were so anxious to restrict UM and UIM coverage that they wrote into law their approval of UM and UIM policies which restrict coverage to certain motor vehicles in subsection (I)(4) of R.C. 3937.18.  This is in sharp contrast to the “personal” and “portable” nature of UM and UIM coverage found in the Commonwealth of Kentucky.

Individual/Personal Policies Versus Commercial Policies

Courts will take a much different approach to commercial UM and UIM policies as compared to personal UM and UIM policies. Commercial UM and UIM policies typically insure the interests of a business or some type of corporate entity.  It is difficult for a business or corporation to have a “personal” interest in the insurance as a business or corporation is, by definition, a grouping of several to potentially thousands of individuals.

The Supreme Court of Kentucky was faced with a UIM claim brought by a cyclist in Isaacs v. Sentinal Insurance Company Ltd., 2018-SC-0078-DG.  Mr. Isaacs was an attorney and the sole shareholder of his law firm Isaacs & Isaacs, P.S.C.  Mr. Isaacs was hit and injured while riding in Jefferson County.  The driver’s insurance company paid the limits of his policy to Mr. Isaacs leaving a UIM Claim against Sentinal.

The Kentucky Supreme Court addressed the sole shareholder argument that Mr. Isaacs and his law firm where one in the same thusly:

Professional service corporations are—as the name implies—corporate entities. KRS 274.015(2) provides: “A professional service corporation formed under the provisions of this chapter, except as this chapter may otherwise provide, shall have the same powers, authority, duties, and liabilities as a corporation formed under, and shall be otherwise governed by, KRS Chapter 271B.” If Isaacs and his P.S.C. were, as he argues, one and the same, he would have had no reason to form the P.S.C.

The Kentucky Supreme Court went on to find that an agent of a corporation cannot have a “personal” relationship to the UIM coverage unless he was listed as a named insured on the policy:

The Isaacses also argue they are entitled to UIM benefits under the Sentinel commercial policy because “UIM coverage is personal to the person who purchased the coverage.” However, as previously discussed, Isaacs was not the named insured. He did not purchase the coverage, nor did his name appear on the policy’s declarations page. The policy’s terms unambiguously distinguished between policies written to individuals and those written to corporations.

Absent a personal interest as a named insured, the Supreme Court applied the “covered auto” exclusion discussed above the Ohio subsection and found that the UIM coverage did not apply because Mr. Isaacs was riding a bicycle at the time of the accident and that bicycle was not listed as a “covered” vehicle or “covered auto” and therefore coverage under the policy was not triggered.

There is no reason to believe that a commercial UM/UIM policy written and litigated in Ohio would come to a different conclusion.

Lessons Learned

The first, and most obvious, lesson learned is get UM and UIM Coverage!

The second lesson learned is that the protections afforded an insured cyclist in Kentucky are much, much broader than the protections afforded insured cyclists in Ohio under UM and UIM policies.

The third lesson learned is that the devil is in the detail.  Make sure your policy does not include language like “covered auto” or “occupying” in the UM or UIM policy.  This is an argument for an Insurance Agent.  Sit down with your agent and let them know you are a cyclist, and you need UM and UIM coverage for while you are on the road enjoying one of your passions.

The fourth lesson learned is that personal and commercial UM and UIM policies are treated differently under both Kentucky and Ohio law.

The fifth lesson learned is that negotiating an UM or UIM Claim can be perilous.  Secure Counsel.

If you have any questions or concerns regarding UM or UIM coverage or a potential first-party claim against your automobile insurance company after a cycling accident, please reach out to us at Carville Legal Counsel LLC.  You can email Chris Carville at [email protected] or call 513 600 8432.  We offer free consultations.

Cycling Injuries on Ohio and Kentucky Bike Trails – Do You Have a Case?

My friends at the Two Johns Podcast had me on their Podcast on October 31, 2020.

We had a fun and wide-ranging discussion on many legal issues as they affect cyclists in Ohio and Kentucky.

As most of you know, lawyers like to give you either a “can-I-get-back-to-you-on-that?” or an “on-the-one-hand” response. When John (Cincinnati John that is) asked about liabilities arising from accidents on bike trails, I wanted to give him both responses. What follows is a bit more detail to the responses from October 31, 2020 podcast.  This post will discuss Ohio and Kentucky law on bike trails because John has had to respond to several EMS calls on the Loveland Bike Trail in his hometown of Cincinnati, Ohio as an EMT.

A cyclist can be injured on a bike trail for any number of reasons.  However, most of those reasons can be narrowed down to two categories – a defect in the trail itself (think potholes or fallen tree branches) or a crash into another bike path user (think-out-of-control-kid on a Strider Bike).

First and foremost, not all the “Rules of the Road” apply to a bike trail.  Sure you have a double yellow or a solid yellow line and stop signs, but bike trails are treated much differently under Ohio and Kentucky law than a city street.  Both Ohio and Kentucky have a “Recreational User Statute” that is designed to encourage private landowners to permit recreational activity on their lands by providing a strong measure of immunity from suit for injuries that occur on lands that they permit recreational activity to occur.  Bike trails are a perfect example.

Statutes At Issue: R.C. 1533.181 and KRS 411.190

Ohio Revised Code 1533.181 entitled Exemption from Liability to Recreational Users states:

(A) 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.

(B) Division (A) of this section applies to the owner, lessee, or occupant of privately owned, nonresidential premises, whether or not the premises are kept open for public use and whether or not the owner, lessee, or occupant denies entry to certain individuals.

It is primarily subsections (A)(1) and (A)(3) that give the landowner, lessee or occupant immunity from claims by injured cyclists on most, but not all (remember it depends!), accidents and crashes on the bike trail.  These subsections of R.C. 1533.181 are given broad application by Ohio Courts.

Kentucky Revised Statutes 411.190 entitled Obligations of Owner to Persons Using Land for Recreation states:

(1) As used in this section:

(a) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty;
(b) “Owner” means the possessor of a fee, reversionary, or easement interest, a tenant, lessee, occupant, or person in control of the premises;
(c) “Recreational purpose” includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, bicycling, horseback riding, pleasure driving, nature study, water-skiing, winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites; and
(d) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land but does not include fees for general use permits issued by a government agency for access to public lands if the permits are valid for a period of not less than thirty (30) days.

(2) The purpose of this section is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

(3) Except as specifically recognized by or provided in subsection (6) of this section, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for such purposes.

(4) Except as specifically recognized by or provided in subsection (6) of this section, an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreation purposes does not thereby:

(a) Extend any assurance that the premises are safe for any purpose;(b) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed; or
(c) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of those persons.

(5) Unless otherwise agreed in writing, the provisions of subsections (3) and (4) of this section shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.

(6) Nothing in this section limits in any way any liability which otherwise exists:

(a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or
(b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this section.

(7) Nothing in this section shall be construed to:

(a) Create a duty of care or ground of liability for injury to persons or property;
(b) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this section to exercise care in his use of the land and in his activities thereon, or from the legal consequences of failure to employ such care; or
(c) Ripen into a claim for adverse possession, absent a claim of title or legal right.

(8) No action for the recovery of real property, including establishment of prescriptive easement, right-of-way, or adverse possession, may be brought by any person whose claim is based on use solely for recreational purposes.

Broad Interpretation

Ohio courts have construed R.C. 1533.18 in broad terms to protect landowners. The purpose of the 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. (1984), 9 Ohio St.3d 194, 198. A wide range of activities have qualified as recreational use when conducted on public park land qualifying under the statute. Johnson v. New London (1988), 36 Ohio St.3d 60; Light v. Ohio University (1986), 28 Ohio St.3d 66.

In Ohio the determination of recreational use has not been predicated on the plaintiff’s intent to engage in or continue to engage in recreation. As long as the premises are held open to the public for recreational use without a fee and qualify as recreational land under the statute, the final element needed to determine recreational user status, as a matter of law, is whether the plaintiff was engaged in a recreational pursuit at the time of the injury. The Ohio Supreme Court has found that spectators to a recreational event are recreational users even before and after the recreational event. LiCause v. Canton (1989), 42 Ohio St.3d 109. The Court in LiCause bestowed recreational user status on a plaintiff engaged in an activity tangential or incidental to recreation and extended that status to a time beyond the completion of the recreational event itself, so that spectators who had entered the park to watch a free softball game were recreational users after the game, on their way out of the park.

The broad construction of KRS 411.190 can be found in the language of the statute itself at subsection 2: “The purpose of this section is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.”  The “Recreational Use Statute displaces the common law duties with which the landowner would be charged in the statute’s absence[.]” Collins v. Rocky Knob Assocs., Inc., 911 S.W.2d 608, 612 (Ky. App. 1995). The Kentucky Supreme Court has determined that except for the circumstances stated in subsection 6 quoted above, “the words of the statute are absolute and unqualified” that “[t]here is no duty to anyone.” Coursey v. Westvaco Corp., 790 S.W.2d 229, 232 (Ky. 1990). Its provisions apply to adult recreational users as well as child recreational users under the Coursey case (holding attractive nuisance doctrine was not applicable to child who was a recreational user).

Can’t Charge A Fee and Keep Immunity

The Ohio Supreme Court has held that the term “fee” in the definition refers exclusively to entry or admission fees. See, Moss v. Dept. of Natural Resources (1980), 62 Ohio St. 2d 138. The Moss Decision points out that all fees are not the same as the admission or entrance fee contemplated by the statute. Leagues fees for yearly light and field maintenance costs will not be construed as a charge for admission to a park. Dowdell v. Eastlake (11th Dist.), 1990 Ohio App. LEXIS 3318.   A similar result was reached in a case involving an injury during a softball game in the Commonwealth of Kentucky. Draper v. Trace Creek Girls’ Softball, Inc. (Ky.App. 2018) 571 S.W.3d 103,

Defining A Recreational User in Ohio and Kentucky

Ohio Revised Code  1533.181 provides the following definitions:

(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 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.

(C)  “All-purpose vehicle” has the same meaning as in section 4519.01 of the Revised Code.

When defining who qualifies as a recreational user, the statute focuses upon the character of the property and the use to which it is put.  Miller v. Dayton, 42 Ohio St.3d 113 (1989), paragraph one of the syllabus. As the Miller court explained: “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 type of activities for which the property is held open to the public.”  Id. If the property’s essential character is recreational, then a user of that property will ordinarily be a recreational user.  Id. at 114–115. In seeking to define recreational premises, the Miller court explained:

“Generally speaking, recreational premises include elements such as land, water, trees, grass, and other vegetation. But recreational premises will often have such features as walks, fences and other improvements. 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, camp, hike, swim, or engage in other recreational pursuits?”

Id. at 114–115.

While the Commonwealth of Kentucky does not have a statutory definition of a “Recreational User”,  that lack of a definition will not limit the application of KRS 411.190 to cyclists as discussed below.

The Cyclist As A Recreational User

The Eighth District Court of Appeals has rejected any argument that the recreational user statute contains an exception from immunity when a dangerous condition exists on the premises.  Milliff v. Cleveland Metroparks Sys (8th Dist.), 1987 WL 11969. In Milliff, the plaintiff suffered injuries when her bicycle collided with a rock barrier that was used to block access to a washed-out area of the park. The plaintiff argued that the recreational user statute did not protect the defendant from liability when the defendant affirmatively created a dangerous condition. The appellate court rejected the plaintiff’s argument and explained:

This court has already determined that the creation of hazardous conditions does not change the determinative factor, i.e., whether the plaintiff was a recreational user. It is clear that appellant did not pay a fee or consideration for admission or entrance to the Metropark. Appellant testified that she entered the Metropark to take a ‘casual, leisurely bicycle’ ride. We conclude that a bicycle ride is a recreational pursuit within the meaning of R.C. 1533.18(B).

Appellant’s status was one of a recreational user and as a result the Metroparks owed her no duty to keep the premises safe. * * * Further, we hold that the recreational users’ statute does not contemplate a distinction between what appellant terms as passive and active negligence. The statute protects all owners of land who fall within it from all acts of negligence. Its application simply turns on the status of the plaintiff.”

Milliff (citations omitted); see also, Erbs v. Cleveland Metroparks Sys., Cuyahoga App. (8th Dist), 1987 WL 30512.

KRS 411.190(1)(c) specifically identifies “bicycling” as a “recreational purpose” which ”includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, bicycling, horseback riding, pleasure driving, nature study, water-skiing, winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.”

Dangerous Condition on the Trail or on the Property

In Estate of Finley v. Cleveland Metroparks Sys., 2010-Ohio-4013, Finley and his wife’s motorcycle collided with a tree that had fallen into the roadway of a park. Finley suffered injuries and his wife died. Finley and his wife’s estate later filed a negligence action against the city and the park. The city and the park subsequently sought summary judgment. The trial court denied their summary judgment motions, and the appellate court reversed the trial court’s judgment. The appellate court held that the recreational user statute provided the park with immunity. The court determined that the Finleys were recreational users when the evidence indicated that they were enjoying a leisurely ride through the park when the accident occurred.

In Opheim v. Lorain (8th Dist. 1994), 94 Ohio App.3d 344, while Plaintiff was watching a baseball game from an area commonly used by spectators, a limb from a tree fell on her head, causing serious injuries. The Plaintiff, by and through her mother, sued Lorain and the Lorain Department of Parks and Recreation, alleging that the defendants were negligent and/or acted with reckless or wanton disregard for her safety in not properly maintaining the tree on the park property. The trial court granted the defendants’ motion for judgment on the pleadings. The trial court held that R.C. 1533.181, the “recreational user” statute, exempted the defendants from liability, as Plaintiff was a recreational user of the park. Therefore, the court held that the defendants owed her no duty of care.  Id. at 345.  The Ninth District Court of Appeals affirmed.

Accidents Between Users

To date, we do not have a reported Ohio or Kentucky case on bike accidents between recreational users on a bike path.  The vast majority of the cases deal with claims against property owners, lessees, or occupiers.  The legal analysis shifts from immunity provided by the Recreational User Statute to the common law concept of Assumption of the Risk.  The most basic example of Assumption of the Risk is a football player suiting up as a tailback and sustaining a concussion as a result of an entirely legal tackle by a middle linebacker.  Both players “assumed the risk” of injury when they cross the chalk lines and stepped on the old gridiron.  Ohio judges will apply a similar analysis when injuries occur between recreational users.

In applying primary assumption of the risk to recreational activities, the Ohio Supreme Court has held that “[w]here individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.” Gentry v. Craycraft, 101 Ohio St.3d 141, at ¶ 6, quoting  Marchetti v. Kalish (1990), 53 Ohio St.3d 95, syllabus. No liability attaches for injuries caused by negligence that occurs during recreational activities. Gentry at ¶ 6, citing Thompson v. McNeill (1990), 53 Ohio St.3d 102, paragraphs one and two of the syllabus. This limitation on liability extends to the spectators of a recreational activity as well as the participants. Gentry at ¶ 6, citing  Thompson, 53 Ohio St.3d at 104.

In Taylor v. Mathys (12th Dist.), 2005 WL 91636 Ohio’s 12th District Court of Appeals applied the Doctrine of Assumption of the Risk between an ATV passenger and ATV driver to a case arising out of injuries that occurred while the driver was going over a snowbank.  The Court found that the driver was neither reckless nor intentional in his conduct.  As a result the passenger’s case was thrown out of court before it reached a jury.

Do You Have a Case? – It Depends

I may have painted a somewhat dismal picture of the chances for recovery when one is injured on a Bike Trail or Bike Path during the October 30, 2020 Podcast with the Two Johns.  That is not necessarily the case with your case!  As in most aspects of the law, the devil is in the detail.  There are several boxes that need to be checked before the Recreational User Statute or principles of Assumption of the Risk will be applied.  Just to name a few, as discussed above: access must be free; the property must be on land dedicated for recreational use as opposed to a local, city or county street (this can be confusing where the street runs adjacent or through a park); the user must be deemed a “recreational user” under R.C. 1533.181; and the injury in most cases must arise from a defect in the property as opposed to another cause.  See eg, Ryll v. Columbus Fireworks Display Co., Inc.(2002), 95 Ohio St.3d 467; Combs v. Ohio Dept. of Natural Resources (10th Dist.), 2014-Ohio-4025.

Even where those boxes may be checked, if there is intentional, wanton or reckless conduct, the protections of the Recreational User Statute and principles of Assumption of the Risk will not apply to deny your claim.

Most Courts will apply the following definition of “reckless” in the context of recreational use:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Parker v. Patrick (12th Dist.), 2012-Ohio-3312, ¶ 17.

Kentucky Courts will apply a very similar standard defining KRS 411.190(6)(a)’s “willful or malicious failure to guard or warn standard” as “indifference to the natural consequences of [one’s] actions” or “the entire want of care or great indifference to [another’s] safety.” Huddleston By and Through Lynch v. Hughes, 843 S.W.2d 901, 906 (Ky. App. 1992).

Translated in common speak, recklessness is really, really, careless conduct.  Where that is the case, the protections provided by Ohio and Kentucky law will not apply.

Don’t navigate these waters on your own!  If you have been injured on a bike trail or bike path in Ohio or Kentucky, please do not hesitate to reach out to Carville Legal Counsel LLC.  We offer FREE Consultations and would be happy to review your case with you.  Call Chris at 513 600 8432 or email Chris at [email protected] if you have any questions about your case.