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To enact section 2305.402 of the Revised Code to | 1 |
specify the responsibility of a possessor of real | 2 |
property to a trespasser and the circumstances in | 3 |
which the possessor may be liable in a tort action | 4 |
for the death or injury of a trespasser, and to | 5 |
specify that it is the intent of the General | 6 |
Assembly to declare that the American Law | 7 |
Institute's finalized "Restatement Third of Torts: | 8 |
Liability for Physical and Emotional Harm" does | 9 |
not constitute the public policy of the state of | 10 |
Ohio and to codify the current law of Ohio | 11 |
regarding the duties owed to trespassers by those | 12 |
who own, occupy, or control premises. | 13 |
Section 1. That section 2305.402 of the Revised Code be | 14 |
enacted to read as follows: | 15 |
Sec. 2305.402. (A) As used in this section: | 16 |
(1) "Possessor of real property" means the owner, lessee, | 17 |
renter, or other occupant of real property. | 18 |
(2) "Tort action" means a civil action for damages for | 19 |
injury, death, or loss to person other than a civil action for | 20 |
damages for a breach of contract or another agreement between | 21 |
persons. | 22 |
(3) "Trespasser" means an individual who, without express or | 23 |
implied authorization, invitation, or inducement, enters real | 24 |
property purely for the individual's own purposes and convenience. | 25 |
(4) "Child" means an individual under eighteen years of age. | 26 |
(B) The possessor of real property does not owe a duty of | 27 |
care to a trespasser on the property except to refrain from | 28 |
willful, wanton, or reckless conduct that is likely to cause | 29 |
injury, death, or loss to the person of the trespasser. | 30 |
(C) Notwithstanding division (B) of this section, the | 31 |
possessor of real property is liable in damages to a trespasser on | 32 |
the property or to any other person in a tort action for injury, | 33 |
death, or loss to the person of the trespasser that allegedly is | 34 |
caused by the possessor of the real property if, at the time the | 35 |
injury, death, or loss allegedly is caused, the possessor knows, | 36 |
or from facts within the possessor's knowledge should know or | 37 |
believe, that the trespasser is in a position of peril on the | 38 |
property, and the possessor of the property fails to exercise | 39 |
ordinary care to avoid causing that injury, death, or loss. | 40 |
(D)(1) Notwithstanding division (B) of this section, the | 41 |
possessor of real property is liable in damages to a trespasser on | 42 |
the property who is a child, to a parent, guardian, or custodian | 43 |
of the child, or to any other person in a tort action for injury, | 44 |
death, or loss to the person of the child that allegedly is caused | 45 |
by an artificial condition on the real property if, at the time | 46 |
the injury, death, or loss allegedly is caused, all of the | 47 |
following apply: | 48 |
(a) The place on the property where the artificial condition | 49 |
exists is a place upon which the possessor of the property knows | 50 |
or has reason to know that children are likely to trespass. | 51 |
(b) The artificial condition is a condition that the | 52 |
possessor of the property knows, has reason to know, realizes, or | 53 |
should realize will involve an unreasonable risk of death or | 54 |
serious injury to those children. | 55 |
(c) Because of their youth, the children who are likely to | 56 |
trespass on the property do not discover the artificial condition | 57 |
on the property or do not realize the risk involved in | 58 |
intermeddling with it or coming within the area made dangerous by | 59 |
it. | 60 |
(d) The utility to the possessor of the property of | 61 |
maintaining the artificial condition and the burden of eliminating | 62 |
the danger involved in maintaining the condition are slight in | 63 |
comparison to the risk of injury, death, or loss to the person of | 64 |
those children. | 65 |
(e) The possessor of the property fails to exercise | 66 |
reasonable care to eliminate the danger involved in maintaining | 67 |
the artificial condition or to otherwise protect the children who | 68 |
are likely to trespass on the property. | 69 |
(2) Notwithstanding division (B) of this section, the | 70 |
possessor of real property is liable in damages to an adult person | 71 |
who trespasses on the property or to any other person in a tort | 72 |
action for injury, death, or loss to the person of the adult that | 73 |
allegedly is caused in an attempt by the adult person to rescue a | 74 |
child who trespasses on the property under the conditions | 75 |
specified in division (D)(1) of this section. | 76 |
(E)(1) This section does not create a new cause of action or | 77 |
substantive legal right against the possessor of real property. | 78 |
(2) This section does not affect any civil liability under | 79 |
another section of the Revised Code or the common law of this | 80 |
state of a possessor of real property with respect to trespassers | 81 |
under circumstances not covered by this section or with respect to | 82 |
individuals other than trespassers, including, but not limited to, | 83 |
civil liability to invitees or licensees on the property. | 84 |
(3) This section does not affect any immunities from or | 85 |
defenses to tort liability established by another section of the | 86 |
Revised Code or available at common law to which a possessor of | 87 |
real property may be entitled in connection with injury, death, or | 88 |
loss to the person or property of a trespasser on the property, | 89 |
including, but not limited to, self-defense or defense of third | 90 |
persons. | 91 |
(4) This section does not affect any criminal liability that | 92 |
the possessor of real property may have for injury, death, or loss | 93 |
to the person or property of a trespasser on the property. | 94 |
(5) This section does not affect any immunities from or | 95 |
defenses to civil liability established by another section of the | 96 |
Revised Code or available at common law to which a possessor of | 97 |
real property may be entitled in connection with injury, death, or | 98 |
loss to the person or property of a trespasser on real property | 99 |
owned, leased, rented, or occupied by another person, including, | 100 |
but not limited to, self-defense or defense of third persons. | 101 |
Section 2. In enacting section 2305.402 of the Revised Code | 102 |
in this act, it is the intent of the General Assembly to do all of | 103 |
the following: | 104 |
(A) To declare that the American Law Institute's recently | 105 |
finalized "Restatement Third of Torts: Liability for Physical and | 106 |
Emotional Harm (Section 51)," that imposes broad new duties on | 107 |
those who own, occupy, or control premises, including the duty to | 108 |
exercise reasonable care toward all trespassers, does not | 109 |
constitute the public policy of the state of Ohio. | 110 |
(B) To codify and preserve the current law in Ohio on the | 111 |
duties owed to trespassers by those who own, occupy, or control | 112 |
premises, as promulgated by the Ohio Judicial Conference in Ohio | 113 |
Jury Instruction CV 617.09, "Licensee and trespasser," as revised | 114 |
on December 14, 2002, and as set forth in the holdings of the Ohio | 115 |
Supreme Court in Glandon v. Greater Cleveland Regional Transit | 116 |
Auth. (1996), 75 Ohio St.3d 312 and Bennett v. Stanley (2001), 92 | 117 |
Ohio St.3d 35, and their progeny. | 118 |