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Sub. S. B. No. 202 As Passed by the HouseAs Passed by the House
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Senators Patton, Grendell, Eklund, LaRose, Bacon, Balderson, Beagle, Burke, Coley, Faber, Hite, Hughes, Jones, Jordan, Lehner, Manning, Niehaus, Schaffer, Widener
Representatives Garland, Slaby, Hayes, Blessing, Bubp, Conditt, Young, Adams, R., Beck, Buchy, Combs, Damschroder, Derickson, Grossman, Hackett, Hall, Johnson, Newbold, Scherer, Thompson, Uecker, Wachtmann Speaker Batchelder
A BILL
To enact section 2305.402 of the Revised Code to
specify the responsibility of a possessor of real
property to a trespasser and the circumstances in
which the possessor may be liable in a tort action
for the death or injury of a trespasser, and to
specify that it is the intent of the General
Assembly to declare that the American Law
Institute's finalized "Restatement Third of Torts:
Liability for Physical and Emotional Harm" does
not constitute the public policy of the state of
Ohio and to codify the current law of Ohio
regarding the duties owed to trespassers by those
who own, occupy, or control premises.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2305.402 of the Revised Code be
enacted to read as follows:
Sec. 2305.402. (A) As used in this section:
(1) "Possessor of real property" means the owner, lessee,
renter, or other occupant of real property.
(2) "Tort action" means a civil action for damages for
injury, death, or loss to person other than a civil action for
damages for a breach of contract or another agreement between
persons.
(3) "Trespasser" means an individual who, without express or
implied authorization, invitation, or inducement, enters real
property purely for the individual's own purposes and convenience.
(4) "Child" means an individual under eighteen years of age.
(B) The possessor of real property does not owe a duty of
care to a trespasser on the property except to refrain from
willful, wanton, or reckless conduct that is likely to cause
injury, death, or loss to the person of the trespasser.
(C) Notwithstanding division (B) of this section, the
possessor of real property is liable in damages to a trespasser on
the property or to any other person in a tort action for injury,
death, or loss to the person of the trespasser that allegedly is
caused by the possessor of the real property if, at the time the
injury, death, or loss allegedly is caused, the possessor knows,
or from facts within the possessor's knowledge should know or
believe, that the trespasser is in a position of peril on the
property, and the possessor of the property fails to exercise
ordinary care to avoid causing that injury, death, or loss.
(D)(1) Notwithstanding division (B) of this section, the
possessor of real property is liable in damages to a trespasser on
the property who is a child, to a parent, guardian, or custodian
of the child, or to any other person in a tort action for injury,
death, or loss to the person of the child that allegedly is caused
by an artificial condition on the real property if, at the time
the injury, death, or loss allegedly is caused, all of the
following apply:
(a) The place on the property where the artificial condition
exists is a place upon which the possessor of the property knows
or has reason to know that children are likely to trespass.
(b) The artificial condition is a condition that the
possessor of the property knows, has reason to know, realizes, or
should realize will involve an unreasonable risk of death or
serious injury to those children.
(c) Because of their youth, the children who are likely to
trespass on the property do not discover the artificial condition
on the property or do not realize the risk involved in
intermeddling with it or coming within the area made dangerous by
it.
(d) The utility to the possessor of the property of
maintaining the artificial condition and the burden of eliminating
the danger involved in maintaining the condition are slight in
comparison to the risk of injury, death, or loss to the person of
those children.
(e) The possessor of the property fails to exercise
reasonable care to eliminate the danger involved in maintaining
the artificial condition or to otherwise protect the children who
are likely to trespass on the property.
(2) Notwithstanding division (B) of this section, the
possessor of real property is liable in damages to an adult person
who trespasses on the property or to any other person in a tort
action for injury, death, or loss to the person of the adult that
allegedly is caused in an attempt by the adult person to rescue a
child who trespasses on the property under the conditions
specified in division (D)(1) of this section.
(E)(1) This section does not create a new cause of action or
substantive legal right against the possessor of real property.
(2) This section does not affect any civil liability under
another section of the Revised Code or the common law of this
state of a possessor of real property with respect to trespassers
under circumstances not covered by this section or with respect to
individuals other than trespassers, including, but not limited to,
civil liability to invitees or licensees on the property.
(3) This section does not affect any immunities from or
defenses to tort liability established by another section of the
Revised Code or available at common law to which a possessor of
real property may be entitled in connection with injury, death, or
loss to the person or property of a trespasser on the property,
including, but not limited to, self-defense or defense of third
persons.
(4) This section does not affect any criminal liability that
the possessor of real property may have for injury, death, or loss
to the person or property of a trespasser on the property.
(5) This section does not affect any immunities from or
defenses to civil liability established by another section of the
Revised Code or available at common law to which a possessor of
real property may be entitled in connection with injury, death, or
loss to the person or property of a trespasser on real property
owned, leased, rented, or occupied by another person, including,
but not limited to, self-defense or defense of third persons.
Section 2. In enacting section 2305.402 of the Revised Code
in this act, it is the intent of the General Assembly to do all of
the following:
(A) To declare that the American Law Institute's recently
finalized "Restatement Third of Torts: Liability for Physical and
Emotional Harm (Section 51)," that imposes broad new duties on
those who own, occupy, or control premises, including the duty to
exercise reasonable care toward all trespassers, does not
constitute the public policy of the state of Ohio.
(B) To codify and preserve the current law in Ohio on the
duties owed to trespassers by those who own, occupy, or control
premises, as promulgated by the Ohio Judicial Conference in Ohio
Jury Instruction CV 617.09, "Licensee and trespasser," as revised
on December 14, 2002, and as set forth in the holdings of the Ohio
Supreme Court in Glandon v. Greater Cleveland Regional Transit
Auth. (1996), 75 Ohio St.3d 312 and Bennett v. Stanley (2001), 92
Ohio St.3d 35, and their progeny.
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