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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.
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.