In Ohio, we are no strangers to the dreaded “black ice.” You probably know someone that has fallen victim to this invisible nuisance. We see it time and time again. Someone hits a patch of black ice and inevitably swerves off the road. Sometimes, a motorist may hit a mailbox, a tree, or a telephone pole and suffer serious injury. A common question that arises after such an incident is whether the owner or the party responsible for that tree or pole can be held liable for the motorist’s injuries. After all, had they removed the off-road object the motorist may have just slid into a ditch without any serious injury, right?
Well, in a recent decision, the Ohio Supreme Court clarified the duty owed to motorists by landowners or occupiers of land adjacent to a public roadway with respect to off-road objects. The case arises after a motorist hit a patch of black ice causing him to veer off the road and hit a mailbox, which then caused his truck to roll. The central issue of the case revolved around the landowner’s potential liability for the mailbox being within the right-of-way and causing the motorist’s truck to flip. Below we review the Ohio Supreme Court’s decision in Snay v. Burr and the duty owed to motorists by landowners or occupiers of land.
Background. On December 19, 2016, Cletus Snay was driving from his home in Norwalk, Ohio to his place of work in Bellevue, Ohio. Mr. Snay was traveling along a two-lane country road when he hit a patch of black ice that caused him to veer off the road. Ohio Highway Patrol found Mr. Snay’s truck rolled over. The state trooper had concluded that Mr. Snay’s truck went off the right side of the road, struck the first mailbox, owned by Matthew and Diane Burr, and began to flip, hitting the second mailbox and eventually ending up overturned further down the road. As a result of the accident, Mr. Snay suffered damage to his spine, rendering him quadriplegic.
After the accident, it was discovered that the Burrs’ mailbox post remained in the ground, while the second mailbox post that Mr. Snay’s truck hit was destroyed. Mr. Burr installed his mailbox approximately 20 years before Mr. Snay’s accident. Before installing the mailbox, Mr. Burr obtained guidelines for mailbox installation published by the United States Postal Service. The guidelines recommended, but did not require, that a metal mailbox support be two-inch-diameter standard-steel or aluminum pipe and be buried no more than 24 inches deep. Mr. Burr, however, used an eight-inch-diameter metal pipe that he buried 36 inches deep.
Mr. Snay and his wife hired an accident reconstructionist that agreed with the state trooper that Mr. Snay’s truck began to roll over after hitting the Burrs’ mailbox. However, the accident reconstructionist was of the opinion that the Burrs’ unyielding mailbox post was the mechanism that caused Mr. Snay’s truck to overturn. The accident reconstructionist characterized the Burrs’ mailbox support as a “dangerous hazard to motorists.”
The Snays filed suit alleging that the Burrs were negligent in constructing their mailbox because “it was supported by a thick, non-breakaway metal pipe.” The Burrs moved for summary judgment, arguing that they owed no duty of care to Mr. Snay and that Mr. Snay’s failure to control his vehicle was the cause of Mr. Snay’s injuries, not the mailbox. Both the trial court and the appellate court agreed with the Burrs. The Snays then brought the case before the Ohio Supreme Court.
What is the duty that a landowner owes to motorists traveling on a roadway with respect to off-road objects and obstructions? The Snays asked the Ohio Supreme Court to hold the Burrs liable for breaching the duty of care owed to motorists traveling on the road adjacent to their property. The Snays argued that the Burrs negligently misused the right-of-way by creating an unreasonable hazard that a motorist might encounter when they veer off the road. The Court disagreed.
The Court went through a historical analysis of Ohio’s law as it relates to off-road objects and the duty owed to motorists by landowners or occupiers. The Court found that under Ohio law “the effect that an object or obstruction in a right-of-way has on the ordinary use of the roadway” controls when determining the existence of a duty owed to motorists. The Court reasoned that if any duty is owed to a motorist by a landowner, it is the duty to ensure that any off-road hazard does not make “the roadway unsafe for the usual and ordinary course of travel.” Examples of off-road objects that may make the roadway unsafe for the usual course of travel include corn growing in the right-of-way that obstructs a motorist’s view of cross traffic or a large sign that obstructs a motorist’s view of the road.
The Court also found that there is no precedent to impose a duty on a landowner to remove an off-road hazard that makes only off-road travel unsafe, unless the off-road travel is shown to be an aspect of the ordinary and usual course of travel on that particular roadway. Here the Court held that the Burrs’ mailbox did not make ordinary travel on the road adjacent to the Burrs’ property unsafe. The Court found that the motorists traveling on the roadway usually drove on the paved area of the road. The Court recognized that motorists are not free to drive on a right-of-way as they please and found that the Burrs’ mailbox only presented a hazard to a motorist once the motorist errantly left the road.
So, if a landowner has an off-road object in the right-of-way, the Ohio Supreme Court has now ruled that the landowner’s duty is to ensure that the off-road object does not make the ordinary or usual travel of the roadway unsafe for motorists, otherwise all fixed objects like mailboxes or trees could impose liability on a landowner.
Do landowners owe a duty of care to motorists that leave the roadway? The Snays also argued that the Burrs’ “unreasonably dangerous construction” of the mailbox and deviation from the nonbinding guidelines of the United States Postal Service, gave rise to a duty of care to motorists that might leave the road and hit the mailbox. Again, the Ohio Supreme Court disagreed.
The Court again reiterated the fact that in order for a landowner or occupier to be liable there must first “be a condition or obstruction that jeopardizes the safety of traffic on the ordinarily traveled portion of the road.” The Court reasoned that the right-of-way beyond the paved portion of the road adjacent to the Burrs’ property was not used for ordinary travel. Therefore, the Court stated that a “vehicle traveling ordinarily and with due care on the road would not come in contact with the Burrs’ mailbox.” The Court also reasoned that adjacent landowners are entitled to presume that motorists will observe the law and exercise ordinary care while driving on a roadway and that a motorist hitting a patch of black ice is neither normal or expected.
The Court concluded that Mr. Burr’s construction of the mailbox, even though inconsistent with the United States Postal Service guidelines, “does not warrant a departure from the general rule that the duty to motorists owed by an adjacent landowner or an occupier of land adjacent to the road extends only to conditions in the right-of-way that render ordinary travel on the regularly traveled portion of the road unsafe.” Therefore, a landowner owes no duty to a motorist that errantly veers off the road and hits an off-road hazard.
Conclusion. As a landowner, or an occupier of land adjacent to a public roadway, it is your duty to ensure that any off-road object or obstruction does not make the ordinary and usual travel of the roadway unsafe. Only then can a landowner, or occupier of land, be liable for injuries caused by an off-road object or obstruction. Ohio does not impose a duty on landowners or occupiers of land to keep a right-of-way free of objects that may pose a danger to wayward vehicles. To read the Ohio Supreme Court’s decision, visit the Ohio Supreme Court’s website.
With archery season in full swing and deer gun season opening today, hunters will be out in full force across Ohio. That means it’s also high season for questions about hunting laws, trespassers, property harm, and landowner liability. Below, we provide answers to the top ten frequently asked questions we receive on these topics.
- I gave them permission to hunt on my land, but do I have to sign something? Yes. Permission to hunt should be in writing. Ohio law requires a person to obtain written permission from a landowner or the landowner’s agent before hunting on private lands or waters and to carry the written permission while hunting. A hunter who doesn’t obtain written permission can be subject to criminal misdemeanor charges. ORC 1533.17. The ODNR provides a permission form at http://wildlife.ohiodnr.gov/Portals/wildlife/pdfs/publications/hunting/Pub8924_PermissiontoHunt.pdf. If a hunter uses another form, read it carefully before signing and ensure that it only addresses hunting and doesn’t grant other rights that you don’t want to allow on the land.
- Do family members need a license to hunt on my land? Some of them will, depending on their relationship to you. Resident landowners, their children of any age and their grandchildren under the age of 18 are exempt from the hunting license requirement when hunting on the landowners’ private lands and waters. The same rule applies if a limited liability company (LLC), limited liability partnership (LLP) or a trust holds the land and the LLC, LLP or trust has three or fewer members, partners, trustees and beneficiaries, as long as the LLC member, LLP partner or trustee is a resident of Ohio. When the landowner is not a resident, only the landowner, spouse and children of any age may hunt without a license, and only if the landowner’s state of residency grants the same rights to Ohioans who own land in that state. ORC 1533.10. Family members who don’t fall under the license exemption must obtain a hunting license and follow the written permission requirement.
- Does a hunter need my permission to retrieve an animal injured on another property? Yes. The written permission requirement applies to all of these activities: shooting, shooting at, catching, killing, injuring, or pursuing a wild bird, wild waterfowl or wild animal. ORC 1533.17.
- Will I be liable if a hunter is injured on my land? Probably not. Two laws apply to this situation, depending upon whether you gave the hunter permission. A landowner is not liable for injuries to or harm caused by a hunter who does not have written permission to be on the land. ORC 1533.17. Ohio’s Recreational User Statute applies when a hunter does have permission to be on the land; it states that a landowner has no legal duty to keep the premises safe for a hunter and assumes no responsibility for or incurs liability for any injury to person or property caused by any act of a hunter. ORC 1533.181. Note that this immunity doesn’t apply if the landowner charges a fee for hunting, unless the fee is a payment made under a hunting lease with a hunter or hunting group. ORC 1533.18. Read more about the law in our law bulletin, here. These laws provide significant protection from liability for hunter injuries, but won’t protect a landowner who willfully or recklessly causes harm to hunters. One situation that might rise to the level of willful or reckless conduct by a landowner is granting permission to too many hunters and failing to inform or manage the hunters, explained below.
- What if several people want to hunt on my land—how many should I allow? Ohio law does not state how many hunters can have permission to hunt on a parcel, but be careful about setting up a dangerous situation by allowing multiple hunters on the land at once. If you do give permission to several hunters, let them know that others could also be hunting on the land and designate a particular parking area so that they know when other hunters are present. You could even consider scheduling hunters on certain days. If the hunters are part of a hunting club, consider leasing your land to the hunting club and letting the club decide how to manage multiple hunters (see our Hunting Lease checklist, here). Taking such steps to manage multiple hunters will ensure that you aren’t behaving recklessly and have immunity from liability under the Recreational User Statute.
- Should I allow a hunter to bring along someone who’s not hunting? In regards to liability for that person, the Recreational User Statute described above applies to any person engaging in any kind of recreational activity, in addition to hunting. Hiking or walking on the land is a recreational activity covered under the law. As long as you give permission and don’t charge the recreational user a fee, the law provides immunity from liability for their injuries.
- What if a hunter leaves a tree stand or a blind on my land—can I get rid of it? It depends. It’s okay to carefully remove a stand or blind from the area, but be careful about damaging or getting rid of it too soon if it’s the property of a hunter who had permission to be on the land. According to Ohio common law, you might be liable for the property under a claim of “conversion” if the property is not “abandoned” or “lost.” Abandoned property is that to which the owner has relinquished all rights with the intention of not reclaiming it, while lost property is that which the owner has involuntarily parted with through neglect, carelessness, or inadvertence. A finder who possesses abandoned property takes absolute title to the property, while a finder of lost property takes title against everyone except the owner. In either case, destroying or disposing of property that is not abandoned or lost could lead to a claim of conversion, and you could be liable for the damages.
- What if a hunter who had my permission to hunt ends up harming my property? There are two ways with deal with property harm from hunters. First, the hunting laws prohibit a hunter from acting in a negligent, careless or reckless manner so as to injure persons or property. Violating this law can lead to first degree misdemeanor charges and compensation to the landowner, as well as revocation of the hunting licenses and permits. ORC 1533.171 and 1533.99. Second, Ohio law allows a landowner to seek compensation for the “reckless “destruction of vegetation, trees and crops under ORC 901.51. Reckless means acting intentionally and without regard for consequences. If successful, a landowner can receive triple the amount of the harm caused to the property.
- What can I do to a trespasser who’s hunting on my land? Dealing with trespassers is tricky. First, don’t willfully harm the trespasser, as you could be liable for causing intentional harm. Second, call your local ODNR wildlife officer or the Turn in a Poacher program, below, to report the incident. Third, read our law bulletin on “Do’s and Don’ts of Dealing with Trespassers on the Farm,” available on farmoffice.osu.edu, here.
- What if I see someone violating hunting laws? ODNR’s “Turn in a Poacher” program encourages the public to report wildlife violations such as hunting out of season or without a license or permission. The program provides several ways to report: complete an online form available at http://wildlife.ohiodnr.gov/stay-informed/turn-in-a-poacher-tip and submit it through the internet or via mail, call the TIP hotline at 1-800-POACHER, or use the same number to text photos of suspects, vehicles or signs of violations. All reports are confidential.
The nursery rhyme “A Hunting We Will Go” paints a happy-go-lucky picture of hunting. But hunting raises many questions and concerns for agricultural landowners. Ohio law offers rules and remedies that can ease those concerns. Landowners who know and use the laws just might be able to hum along with the nursery rhyme through hunting season.