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.