Recent Blog Posts

By: Caty Daniels, Thursday, April 17th, 2014

Ohio State University Extension’s Agricultural & Resource Law Program will host the Sixth Annual Ohio Agricultural Law Conference on Friday May 16, 2014 at the Ohio 4-H Center. This year’s program features OSU’s Dr. Carl Zulauf discussing the new Farm Bill. Also on the schedule is a legislative update from Ohio Farm Bureau Federation’s Tony Seegers. Craig Vandervoort of Sitterly & Vandervoort Ltd. will present on Medicaid and nursing home planning for family farms.  Robert Moore of Wright & Moore Law Co. will moderate a session featuring an OSU Extension Educator and an insurance agent on agri-tourism and direct marketing trends and liability. A roundtable discussion on guiding clients in today’s agricultural climate, moderated by Troy Callicoat of Barrett, Easterday, Cunningham and Eselgroth LLP, will wrap up the day.  

A special highlight of this year’s conference is a bus tour of OSU’s Waterman Farm.  The bus will then take conference attendees to the North Market in downtown Columbus for lunch and a discussion with North Market Farmers on legal issues and challenges they face. Law students interested in attending the conference may apply for student scholarships provided by the Paul L. Wright Agricultural Law Endowment Fund. Contact Caty Daniels at daniels.498@osu.edu for scholarship information. For more information and to register for the conference, visit www.regonline.com/OhioAgLaw.

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By: Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law, Monday, April 14th, 2014

The Ohio Legislature is one step closer to creating a unique fertilizer applicator certification program for Ohio agriculture.  The Ohio House of Representatives recently approved the measure in S.B. 150, which had already passed the Senate in January (see our related post.)   The legislation aims to reduce fertilizer runoff into Ohio's waters in response to recent problems with algae blooms in Lake Erie and Grand Lake St. Mary's.   Other states with fertilizer applicator certification programs focus on professional, turf or urban applications of fertilizer, but Ohio's program would require farmers applying fertilizers on their own land to complete the knowledge-based certification program. 

An amendment by the House extends the certification requirement to anyone applying fertilizer for agricultural production on more than 50 acres of land, rather than on more than 50 "contiguous" acres as approved by the Senate.  The amendment will likely expand the program to more smaller-acreage farmers.    Although urged to do so, neither the House of Representatives nor the Senate agreed to extend the proposal even further by including "manure" in the definition of "fertilizer."

The Senate must now approve the House-amended version when it reconvenes in early May.  Upon Senate approval, the legislation would move to the Governor by mid-May.  If enacted, the bill gives the Ohio Department of Agriculture three years to establish and implement the fertilizer applicator certification program.  The bill also contains provisions for voluntary nutrient mangement plans, operation and management plans for animal feeding operations, and a few changes to Ohio's fertilizer license laws.

Watch for our final analysis of S.B. 150 as it continues the legislative process next month.

 

By: Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law, Wednesday, March 05th, 2014

The Ohio Department of Agriculture (ODA) has announced that pesticide applicators, commercial sensitive crop producers and apiaries may now use the online Ohio Sensitive Crop Registry (OSCR).  ODA developed OSCR as a “voluntary informational tool designed to allow stakeholders an effective way to communicate and protect pesticide-sensitive crops and apiaries.”  The registry will enable applicators to determine whether there are any sensitive crops in an area before applying pesticides.

How does the registry work?

ODA designed the tool for registered apiaries and "commercial" sensitive crop producers who produce at least one-half acre of a single type of sensitve crop.  The ODA defines sensitive crops as follows:

Apiaries – any ODA-registered apiary
Aquaculture – a location with any fish and other aquatics grown outdoors
Brambles – aggregated total of fruit such as raspberries and blackberries of at least .5 acres
Certified Organic – an organic farm certified by a USDA-accredited agent; certified organic crops, forage, and livestock of at least .5 acres
Nurseries – nursery stock and flowers of at least .5 acres
Greenhouse/High Tunnels – must be for commercial use and produce at least .5 acre of any combination of crops annually
Orchards – fruit or nut-producing trees of at least .5 acres
Grapes – vineyards of at least .5 acres
Tomatoes – all tomato cultivars of at least .5 acres
Fruit (other) - non-tree simple, aggregate and multiple fruits of at least .5 acres, excluding tomatoes, grapes, and brambles
Herbs – herbs and plants for spices of at least .5 acres
Vegetables – root and leafy vegetables, legumes, and pumpkins of at least .5 acres
 

Registration on OSCR is completely voluntary; a sensitive crop producer may create an account on the OSCR website and map the locations of their crops.  ODA will then verify the producer's information before it is available on the registry.  Private and commercial pesticide applicators may also voluntarily register on the site.  If approved by ODA, an applicator may search the registry to identify the locations of sensitive crops and apiaries.  The registry includes a mapping tool with options to search by address, parcel number, township, county, city, village and other methods.

It is important to note that the information provided in the registry is not available to the general public.  It is only available to those who have registered on OSCR and have been verified by ODA.

Implications for crop producers and pesticide applicators

The registry offers a good risk management tool to sensitive crop producers.  By allowing producers to communicate the existence of sensitive crops, which are typically not as easily observed as other crops, the registry should reduce pesticide drift impacts.  One possible implication for sensitive crop producers is the risk of sharing crop information through the registry, but the ODA verification process should minimize potential misuse of registry information.

Reduced drift impacts will also benefit pesticide applicators who use OSCR.  However, the voluntary nature of the registry raises potential implications for pesticide applicators.  What is the liability exposure for an applicator who knows the registry is available but chooses not to use the tool?  Could a harmed party argue that an applicator "should have known" about a sensitive crop because it was registered?  Does the availability of the information create a new legal duty for  pesticide applicators--a duty to take the additional step to identify nearby sensitive crops?  Could an insurer refuse to cover an applicator who failed to consult the registry?   Until Ohio courts receive and answer these legal questions, we don't have clear answers.

The caution to pesticide applicators, then, is to take the OSCR seriously.  Don't overlook the registry because participation is "voluntary" rather than mandatory.   The registry can provide important information that could reduce pesticide exposure to sensitive crops; a pesticide applicator who fails to utilize the information might be increasing his or her potential liability if pesticide drift occurs.

To learn more about the Ohio Sensitive Crop Registry, visit: http://www.agri.ohio.gov/scr/.

By: Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law, Tuesday, February 04th, 2014

The federal Occupational Safety & Health Administration (OSHA) generated controversy recently when several of its enforcement actions against farms with grain bin storage hit the news headlines.   The enforcement actions are contrary to a general understanding in the agricultural community that OSHA does not have authority to enforce its regulations against farms with ten or fewer employees, referred to as the “small farms rider.”  While claiming that it does not intend to enforce beyond its authority, OSHA justifies its actions in an internal agency memorandum that interprets the small farms rider.  Is OSHA’s justification reasonable or contrary to law?  Here’s the language of the small farms rider and OSHA’s explanation of its authority:

  • The Small Farms Rider.  The 2014 Consolidated Appropriations Act passed by Congress, like every previous appropriations bill since 1976, states that none of the funds appropriated by Congress to OSHA “shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, regulation, or order under the Act which is applicable to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs 10 or fewer employees.”  (emphasis added)
  • The agency focuses on the small farm rider’s use of the term “farming operation” which, according to the agency’s prior interpretation, means “any operation involved in the growing or harvesting of crops, the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations.”  
  • Not included in the definition of “farming operations,” according to the agency, are those establishments engaged in performing services on crops subsequent to their harvest with the intent of preparing them for market or further processing, including activities such as crop cleaning, sun drying, shelling, fumigating, curing, sorting, grading, packing and cooling, corn drying and shelling, grain drying, cleaning, and fumigating.  Why are these not considered farming operations?   Because the North American Industrial Classification System (NAICS) and Standard Industrial Codes (SIC) differentiate agricultural businesses that conduct crop and livestock production from those that conduct post-production activities.   Small farms with grain storage structures where grain is fumigated, dried, or processed subsequent to harvest and sold into the market would fall under the post-harvest NAICS codes rather than the agricultural production codes and therefore are not “farming operations” exempted by the small farms rider, states OSHA.    
  • The agency also notes that grain handling operations are not “core agricultural operations” according to OSHA’s federal regulations.  These regulations state that “core agricultural operations” include activities such as growing and harvesting crops, plants, vines, fruit trees, nut trees, ornamental plants, egg production, the raising of livestock, poultry, fish and livestock products.
Why is OSHA working so hard to distinguish grain storage activities from other farming activities?  Statistics could be one reason.   The agency notes that over 900 grain entrapment fatalities have occurred in the past 50 years with the highest on record occurring in 2010, when 26 workers died in grain engulfments.  This led to agency efforts to increase attempts to prevent deaths and injuries (see, for example, “OSHA works with The Ohio State University to promote safe practices”).  The agency also points to statistics indicating steadily growing amounts of on-farm grain storage capacity.  Finding a way to increase inspection opportunities on the expanding number of farms with grain storage would be consistent with OSHA’s efforts to reduce fatalities and injuries.  Unfortunately, recent enforcement actions against farms in Nebraska and Ohio appear punitive in nature and not simply focused on reducing risk.
 
What’s next?  Many members of Congress are pushing OSHA to revise its interpretation of the small farms rider.  OSHA has agreed, stating that it plans to look to USDA for advice on which post-harvest activities are "intimately related to farming activities and which ones aren't," according to OSHA deputy assistant secretary Jordan Barab.  An alternative to OSHA action would be for Congress to provide its own definition of “farming operations” rather than deferring to the agency’s interpretation.  
 
The important issue here:  grain handling safety.  Agriculture prides itself on knowing how best to handle its own issues.  As Congress and OSHA bicker over regulatory authority, let’s hope agriculture stays focused on grain handling practices and continues to reduce grain-related deaths.  For resources on safe grain handling, visit OSU’s Agricultural Safety & Health Program at http://agsafety.osu.edu/resources
By: Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law, Wednesday, January 29th, 2014

Ohio farms that complement their agritourism activities with inflatable "bounce houses" and slides for kids to play on will soon be subject to new safety standards proposed by the Ohio Department of Agriculture (ODA).  Based on its authority to inspect "amusement rides," ODA is proposing the regulations to ensure public safety through minimum standards for the operation and use of inflatable devices. 

Inflatables haven't always been subject to ODA's "amusement ride" oversight.  The Ohio legislature amended the definition of "amusement rides" in 2011 to include "inflatable devices," which gave ODA the added responsibility of inspecting and permitting the bounce houses.  The  regulations now proposed by ODA will provide safety standards that operators must meet before receiving a permit to operate an inflatable.

According to the proposal, owners or operators of inflatable amusement devices:

  • Shall have the manufacturer's specifications on hand and available for ODA at the time of an inspection.
  • Shall not inflate a device with flammable gases.
  • May vary from the manufacturer's operating instructions or make alterations to the inflatable's design, only by doing the following:

1) Obtaining written permission for the variance or alteration from the manufacturer;

2)  Submitting the written permission from the manufacturer to the department for approval; and

3)  Being reinspected by ODA to ensure compliance with the revised manufacturing instructions or specifications.

ODA seeks comments on the proposed safety standards by February 18, 2014; learn more by visiting here.

By: Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law, Friday, January 24th, 2014

The Ohio Senate has approved a bill directing the Ohio Department of Agriculture (ODA) to establish a fertilizer applicator certification program in Ohio.  The sponsors of Senate Bill 150, Senator Cliff Hite and Senator Bob Peterson, designed the legislation to address agricultural nutrient runoff into Ohio waterways and the algae problems in Grand Lake St. Marys and Lake Erie.  According to Senator Hite, the bill hinges on a new education and certification program that will give farmers additional information about fertilizer and nutrient use best practices.    

Here are answers to a few basic questions farmers might have about the proposed program:

When would the program begin?  If the bill is passed by the Ohio House of Representatives, the fertilizer application certification program would begin on September 30 on the third yearsfollowing the law’s effective date.   

Who would have to be certified?  Someone who applies “fertilizer” for agricultural production on land more than 50 acres in size would have to be certified by ODA as a fertilizer applicator, or would have to be acting under the instruction of a certified fertilizer applicator. 

Would there be any exemptions from the program?  Those who would make applications of fertilizer on land parcels of 50 acres or less would be exempt from the certification requirement.  The bill would also allow the ODA director to establish additional exemptions for certain persons or certain “types of cultivation.”

What fertilizers would the program cover?  Under the bill, “fertilizer” means any substance containing nitrogen, phosphorus, or potassium or any recognized plant nutrient element or compound that is used for its plant nutrient content or for compounding mixed fertilizers.  The definition of fertilizer does not include lime, manure and residual farm products such as bedding, wash waters, waste feed, silage drainage and certain dead animal composts, unless those are mixed with fertilizer materials or distributed with a guaranteed analysis.

What would the certification program involve?  The Senate’s bill directs that the program must educate applicants on the time, place, form, amount, handling, and application of fertilizer—commonly referred to as the "4-Rs" of nutrient stewardship (right fertilizer source at the right rate, at the right time and in the right place).  The bill also states that the program must "serve as a component of a comprehensive state nutrient reduction strategy addressing all sources of relevant nutrients" and must "support generally practical and economically feasible best management practices."

Would there be a certification fee?  The bill allows the ODA to establish a fee for applicants who seek certification, but the fee may not exceed the fee charged for the state’s pesticide applicator certification program.  Additionally, the bill exempts persons who hold an Ohio commercial or private pesticide applicator’s license from paying an additional application fee if they also seek fertilizer application certification.

Other important provisions in Senate Bill 150 include:

Recordkeeping requirements.  Certified applicators would have to maintain fertilizer application records for at least three years from the date of a fertilizer application.  The records must include the date, place and rate of application, an analysis of the fertilizer and the name of the person applying the fertilizer.  Applicators would not be required to submit the records to ODA on a regular basis, but would have to make the records available upon a request by the agency.

Emergency revocation and suspension powers.  The bill would allow the ODA director to immediately deny, suspend, revoke, refuse to renew or modify a fertilizer applicator certificate if there is "substantial reason to believe the certificate holder recklessly applied fertilizer in such a manner that an emergency exists that presents a clear and present danger to human or animal health."

Voluntary Nutrient Management Plans.  The bill would allow a person who owns or operates agricultural land to develop a voluntary nutrient management plan in collaboration with Ohio State University, the Soil and Water Conservation District or the Natural Resource Conservation Service or its certified providers and submit the plan for approval by the Soil and Water Conservation District.  A voluntary nutrient management plan would be an important critieria for immunity from civil liability, discussed below.

Legal Defense against Civil Actions.   Under the bill, a person sued in a claim involving liability for an application of fertilizer would have a legal defense that would prevent liability upon showing these three criteria:

  • The person is a certified fertilizer applicator or under the control of a certified applicator;
  • The person properly maintained fertilizer application records as required by the certification program;
  • The fertilizer was applied according to and in substantial compliance with an approved voluntary nutrient management plan.

Watch now for the agricultural nutrient management bill to be introduced in the Ohio House of Representatives for final approval.  More information about S.B. 150 is available here.

By: Caty Daniels, Wednesday, January 15th, 2014

Author: Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law

A farm lease is a valuable transaction for landowners and farm operators alike, so it is important to ensure that the lease conforms to Ohio’s legal requirements. Here’s what Ohio law requires for creating a legally enforceable lease:
 
The lease must be in writing. Enforcing a verbal farm lease is very difficult in Ohio due to our “Statute of Frauds.” The statute states that a lease of land must be in writing to be legally enforceable in Ohio. Despite this law, many verbal farm leases do exist. If a problem arises under a verbal farm lease, the law would not uphold the verbal lease unless a party could prove that the court should grant an exception from the Statute of Frauds writing requirement. This is a risky position and forces a party to go to court simply to try to prove that there is a valid lease.
 
The lease must identify the land. Include the legal description, address and acreage of the land parcel.
 
Both parties should sign the lease. Ohio law requires that the landowner must sign the lease, and Ohio’s Statute of Frauds states that a lease agreement is not enforceable against a party who did not sign the lease. So that the lease is enforceable against both landlord and operator, both should sign the lease.
 
The lease must properly name the parties and all owners. Be sure to list all owners, using the proper legal names or business names. In the case of joint landowners, such as a married couple or partnership, both owners must sign the lease. If an LLC or similar business entity owns the land, the business entity should be the named party entering into the lease, and the individual who signs
the lease on behalf of the entity must have legal authority to do so.
 
A lease over three years must be acknowledged. Parties to a lease of more than three years must have their signatures acknowledged and certified by a notary public or local official such as a judge, mayor or clerk of court.
 
The parties should file a memorandum of lease. Ohio law requires that the lease transaction be filed with the county recorder in the county where the land exists, which gives notice of the lease arrangement to potential purchasers and others. Rather than requiring the parties to divulge all details of the lease, the law allows the parties to file a shortened “memorandum of lease” that must include names and addresses of each party, a legal description of the land, the lease period and rights of renewal.
 
The terms of a farmland lease are also important. For information on terms and other lease issues, refer to our other resources on farmland leasing.
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Tags: farm lease, farmland lease, enforceable lease
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Litigation that arose from a drainage improvement project completed in 2002 has finally ended with a decision by the Ohio Supreme Court.  The court announced today that it will not accept the case for review, which allows the ruling by the Third District Court of Appeals in favor of the Henry County Engineer to remain in place. Richard and Rodney Rohrs sued the county engineer  and several staff members in 2005 after a drainage project completed by the county flooded several acres of a farm field the Rohrs had rented from Gerald Westhoven.  In the late 1990s, Westhoven approached the Henry County Engineer about flooding problems on Westhoven's farm and the possibility of cleaning out the open drainage ditch that ran between his land and the county road.  The engineer proposed an alternative solution, to lay drainage tiles and fill the ditch, and offered to classify the work as a road safety improvement project to be handled through the engineer's budget rather than through the petition ditch process that would result in assessments on property owners. The county engineer installed the new drainage system in 2002.  Westhoven entered into a lease for the land with the Rohrs in the Spring of 2003.  The Rohrs planted a tomato crop on the parcel; by July, part of the field was under water.   After the harvest season, the county engineer and Westhoven attempted to locate a drainage tile that could be the source of the flooding but they could not find any tile in the flooded area.  The county then installed a new catch basin near Westhoven's property to resolve the flooding problem, with plans to tie in any field tile that Westhoven might later discover on his land.  The Rohrs continued to lease the farmland from Westhoven. According to witness testimony, the cause of the 2003 flooding was a drainage tile and catch basin just south of Westhoven's property that had been cut off during construction of the road improvement project drainage system; the engineer's staff  had filled the tile and catch basin because it did not appear to be a functioning tile and did not exist on any of the county's plans.  Excavation on the Westhoven property several years later revealed a drainage tile located just 15 feet from the filled tile and catch basin.  The newly discovered tile, which Westhoven had not previously reported to the engineer,  had a seed bag stuffed into its outlet, which was near the filled catch basin.   The Rohrs claimed that the engineer's staff had intentionally stuffed the seed bag into the functioning tile, while the engineer's staff claimed they did not know about the tile.   The county surmised that the seed bag had been used in the previous filling of the tile and catch basin that they had believed to be non-functioning. The Rohrs sought $70,000 for losses to their 2003 tomato crop as a result of the flooding.  Their legal causes of action included several tort claims and violations of federal and state due process rights.  They also asked the court for a writ of mandamus to order the county to compensate them for a partial "taking" of their property by the county engineer.   The Henry County Court of Common Pleas, after seven years of litigation, rejected each of the Rohrs' claims. The Rohrs appealed with no avail to the Third District Court of Appeals.  The appellate court agreed with the trial court's conclusion that state law prevented tort liability for the flooding because the county was entitled to governmental immunity under Ohio Revised Code 2744.02(A)(1) i.  The court stated that the Rohrs had failed to prove that any of the law's exceptions to governmental immunity applied to the situation.  In response to the Rohrs' argument that the county had committed a partial "taking" of property, the appeals court agreed with the trial court that a "taking" had not occurred for three reasons:  because the flooding was accidental and incidental rather than an intentional taking of property, because the alleged taking was not for a public use as required by the Constitution and because the Rohrs had other remedies for their harm, such as a tort claim against Westhoven and the failed tort claims against the county engineer.  As such other remedies were available, the court also agreed with the trial court that the Rohrs failed to prove violations of their due process rights. In their request for a review by the Ohio Supreme Court, the Rohrs focused on the lower courts' conclusions that a "taking" had not occurred.  The Henry County Farm Bureau and the Ohio Farm Bureau filed a brief in support of the Rohrs, urging the Supreme Court to accept the case and review the takings issue.  The Court today declined to accept the case by a vote of 5--2 with Justices Paul Pfeifer and Judith French dissenting.  Without a review by the Ohio Supreme Court, the appellate court decision stands as the final resolution of the case. The decision of the Third District Court of Appeals in State ex rel. Rohrs v. Germann is available here.
What is your biggest legal concern for your farm?  That's the question we posed to farmers who visited our Agricultural & Resource Law Program booth at OSU's Farm Science Review this fall.  The results of our informal survey are both expected and surprising.   We've listed the responses below, beginning with the most common answers. 1.  Farm transition and estate planning.  It's no surprise that many farmers shared concerns about whether the family would do any estate planning, how to transition the farm business and assets to the next generation, understanding estate tax implications and planning for long-term health care needs.  Given the high percentage of farmland and farm wealth that will change hands in the next ten years, we're relieved to know that farm families are thinking about these issues.  Readers with these concerns should consider attending OSU Extension's Farm Transition, Estate and Retirement Planning Seminar on December 10, 2013 in New Philadelphia, Ohio; more information is available here. 2.  Premises liability.  Whether for trespassers, hunters or customers, landowners worry about liability for injuries to people who come onto the farm property.  We receive the most speaking requests on this topic, so we expected its popularity. 3.  Regulation of farm food sales.   The regulation of farm food products came up frequently.  There is confusion about the division between state and local authority over cottage foods and home baked goods.  Regulations affecting whether a farmer can sell eggs and fresh or frozen meat is also a concern. 4.  Oil and gas leases and hydro-fracturing.  Common questions on this topic included "will development come my way?", "can I get out of an old oil and gas lease?" and "is hydro-fracturing dangerous?" 5.  Water rights.  This one caught us off guard because it wasn't related to oil and gas development, as we had guessed.  The concern:  will there be enough water in Ohio to go around? 6.  Current Agricultural Use Valuation.    The calculation of agriculture's differential property tax assessment is an ongoing issue for farmers. 7.  Neighbor issues.  In the words of one farmer, "how do I deal with difficult neighbors?"  Many farmers have particular concerns about co-existing with non-farm neighbors. 8.  Animal rights activists.  Even with the implementation of Ohio's Livestock Care Standards, some farmers worry about being targeted by animal rights activists.
9.  Pesticide drift and bees.   Another surprise, but an issue that carries serious legal and production implications for Ohio agriculture.
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We provide information on many of these legal concerns on this blog, on our website at http://aglaw.osu.edu  or on OSU's Shale Education Program website at http://shalegas.osu.edu.    Over the next few months, we'll develop additional resources to address the concerns raised by Ohio farmers at Farm Science Review.  If your most pressing legal concern isn't included in the list above, be sure to share it with us via this blog or by e-mail to aglaw@osu.edu.
 
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Peggy Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program We often explain the Ohio Recreational User's Statute to farmland owners because the  law provides liability protection when someone asks to hunt, fish, snowmobile or conduct other recreational activities on the farm.  As long as the landowner grants permission for the use and does not receive a fee from the recreational user, the landowner does not owe a legal duty to assure that the premises are safe for the user.  This immunity from liability encourages those who own non-residential land to open the land for recreational activities. Landowners always have "what if" type questions when we explain this law.  Recently, the Ohio Supreme Court answered one of those "what if" questions:  what if I modify the property in some way and create a hazardous condition that causes an injury; does the Recreational User's Statute still protect me from liability?  The Supreme Court's response:  yes.  But the court was not in complete agreement on the issue. The accident at the heart of the case occurred when an 18 year old boy went sledding in a park owned by the City of Circleville, Ohio.  The boy slid head first into a wooden railroad tie which the city had transported to the park from a construction site.  The city planned to temporarily store the railroad tie and other construction debris at the park because no storage space was available at its maintenance facility.  Upon hitting the railroad tie, the boy broke his neck and became paraplegic. In its decision in the lawsuit filed by the boy, the trial court determined that the city was immune from liability because of the Recreational User's Statute, which grants recreational immunity to governmental as well as private landowners.  The boy appealed the case to the Fourth District Court of Appeals, which affirmed the trial court's decision.  The Ohio Supreme Court agreed to review the case. The question before the court was whether the city's action of placing the railroad ties in the park created an exception from the immunity provided by the Recreational User's Statute.  The boy's legal counsel argued that storage of the railroad ties and other construction debris in the park had changed the property's essential character so that it was no longer a recreational property and should not fall under the protection of the Recreational User's Statute.   A majority of the court disagreed, concluding that the city’s alleged creation of a hazard on the premises did not affect the city’s immunity. "We cannot accept as reasonable any contention that the presence of a railroad tie in a public park changes its essential character as a recreational space,” wrote Justice Sharon Kennedy.  “Critics may claim that our decision reaches a harsh result.  However, the language of the recreational-user statute is plain; a property owner owes no duty to a recreational user to keep the property safe for entry or use.  Creating an exception to this immunity is a policy decision that comes within the purview of the General Assembly, not the courts. … [W]e will not create an exception by judicial fiat.” Justice William O’Neill entered a dissenting opinion, joined by Justice Paul Pfeifer, who also wrote a separate dissent.   “[L]et’s be accurate here — we are not talking about a single railroad tie," stated Justice O'Neill.  "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. . . . [T]he city made a decision to dump huge mounds of debris into a city-owned park. When it did that, it lost its “recreational user” immunity entirely." In his dissent, Justice Pfeifer questioned the protection afforded by the Recreational User's Statute.  The immunity provisions in those statutes, he stated, "provide unreasonable and unconstitutional protection to government entities that own property." What does the Court's decision mean for agricultural landowners?  While the case did not involve an agricultural property, the decision does have impact for agricultural landowners.  A few lessons from the case: Affirmation of broad landowner immunity.  The court's decision affirms the broad immunity afforded by Ohio's Recreational User's Statute.  We often hear questions such as "but what if I left my equipment out in the field?" or "but what if they fall into that hole I just dug?"   Based on the court's decision, the landowner has no duty to make the property safe and won't be liable for injuries caused by any "hazards" the landowner created on the property.   Remember that this immunity applies to "recreational users"-- property visitors who have the landowner's permission to engage in recreational activities such as hunting, fishing and snowmobiling on non-residential property and who haven't paid the landowner for the recreational activity (with an exception for hunting lease payments; landowners may receive hunting lease payments and still retain recreational user immunity). Take recreational permission seriously.   This lawsuit arose because someone suffered a serious injury.  Even with immunity protection, landowners should think twice about allowing recreational users on the property when highly dangerous situations are present.  If there's a good chance that someone could suffer harm from the situation, avoid the potential of harm and simply don't grant permission for people to be on the property. Immunity comes at a cost.    While it can prevent landowner liability, the Recreational User's Statute can't stop a harmed party from taking the landowner to court.    The city incurred not only the costs of defending itself through three court hearings, involving attorney fees and the city's time, but also the cost of negative publicity.  Surely, more responsible land management decisions would have cost less and kept someone from suffering harm. The Ohio Supreme Court's decision in Pauley v. Circleville is available here.  The Ohio Recreational User's Statute is in Ohio Revised Code Sections 1533.18 and 1533.181.

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