Hug v. Hake

Candace Hug suffered serious injuries when a UTV driven by Tacia Livensparger overturned into a creek on Devin and Stacy Hake’s property during a social gathering. The property exceeded 50 acres, including approximately 20 farmed acres, a residence and other buildings, woods, ponds, a creek, and trails. The Hakes charged nothing for the rides. ¶¶ 2–9.

After an uneventful daylight ride, Livensparger drove Candace and another passenger out again around 11:15 or 11:30 p.m. The occupants used neither helmets nor the UTV’s seatbelts and safety netting. Using headlights, Livensparger backed away from an overgrown path before taking another trail. At approximately seven or eight miles per hour, the right front tire caught in a washout at the edge of a bridge over a culvert, overturning the vehicle. Candace became trapped underwater by her hair extensions and freed herself with Livensparger’s assistance. Her diagnoses included a fractured neck vertebra, a left radial-head fracture, and PTSD. ¶¶ 4–7.

The trial court granted summary judgment to the Hakes and Livensparger on Candace’s claims and Jeffrey Hug’s derivative loss-of-consortium claim. The appeal challenged statutory immunity, the classification of the rollover as an ordinary recreational risk, the sufficiency of the recklessness evidence, and dismissal of consortium. The appellate court affirmed, while distinguishing the legal grounds applicable to the landowners and the driver. ¶¶ 10–18, 52.

Review was de novo. Summary judgment required no genuine issue of material fact, entitlement to judgment as a matter of law, and only one reasonable conclusion adverse to the nonmovant, with the evidence construed most strongly in the nonmovant’s favor. ¶ 19.

The movant had to identify both the grounds for judgment and record portions demonstrating the absence of a genuine material dispute. A properly supported motion required the opponent to respond with specific facts through Civ.R. 56(C) materials, rather than allegations or denials alone. Those materials include pleadings, depositions, interrogatory answers, written admissions, affidavits, evidence transcripts, and written factual stipulations. Materiality depended on whether the disputed fact could affect the outcome under the substantive law—a distinction decisive to the driver’s conflicting statements about vegetation. ¶¶ 20, 47.

R.C. 1533.181(A) removes an owner’s, lessee’s, or occupant’s duty to keep premises safe for recreational users. Permission to enter supplies no assurance of safety, and the statute also disclaims responsibility for injury caused by a recreational user’s act. Division (B) extends the protection to privately owned, nonresidential premises whether or not they are open to the public or particular individuals are excluded. ¶ 23.

The court separated recreational-user status from the characteristics necessary for premises immunity. Under R.C. 1533.18(B), permission, absence of a fee or consideration to the owner, lessee, or occupant, and a qualifying recreational purpose establish user status. On appeal, the Hugs conceded ownership and recreational pursuit and did not dispute permission or the absence of a fee. Candace therefore qualified as a recreational user. Public access and nonresidential character presented separate immunity questions. ¶¶ 24–25 & fn. 1.

The public-access argument failed under division (B)’s express language. Decisions predating that provision did not establish a public-access requirement under the statute the court applied. ¶ 25.

For nonresidential character, the majority examined the property’s essential character and use. Qualifying premises typically contain outdoor features such as land, water, trees, grass, and vegetation, but need not be entirely natural. A home on the land does not necessarily preclude immunity. Here, most of the property was farmland or natural land, and the accident occurred outside the backyard, 300 to 400 yards from the home, in a natural area where no one lived. The majority held those circumstances sufficient as a matter of law. ¶¶ 26–28.

The majority also corrected the trial court’s treatment of recklessness as a possible exception to premises immunity. Once the statute applies, it contains no exception for recklessness or another liability theory based on unsafe premises. Calling a failure to warn or make the property safe reckless cannot restore a duty the statute removes. The majority therefore found resort to the recreational activity doctrine unnecessary for the premises-condition claims against the Hakes. ¶¶ 30–31, 39.

The allegations that the Hakes recklessly entrusted the UTV or failed to provide safety equipment required separate treatment. They concerned conduct distinct from liability as recreational landowners for unsafe property conditions and were not themselves barred by R.C. 1533.181. ¶ 32.

Recklessness requires an act, or an intentional omission of a duty, with knowledge or reason to know of facts revealing an unreasonable physical risk substantially greater than negligence requires. It entails a conscious choice despite serious danger or facts disclosing that danger to a reasonable person. Inadvertence, incompetence, unskillfulness, and inadequate precautions do not alone meet that standard. In recreational activities, the court also required conduct outside the activity’s rules or customs creating an unreasonable risk of physical harm. ¶¶ 33–34.

The entrustment evidence did not satisfy that standard. Livensparger had lifelong familiarity with ATVs and UTVs, had visited the property approximately 50 times, and had driven the Hakes’ UTV about five times. Devin had ridden with her without concern. The owners knew her as experienced and competent, and the Hugs abandoned their intoxication argument on appeal. Because Livensparger herself qualified as a recreational user, the owners also owed her no warning duty concerning unsafe premises conditions. ¶¶ 8, 35 & fn. 2.

The safety-equipment theory failed because the record established neither a duty to provide equipment nor evidence that helmets or similar gear were customary in UTV riding. Without customary-use evidence, the court could not find an omission outside the activity’s rules or customs. This was a conclusion about the record, not a categorical rejection of every safety-equipment recklessness claim. ¶ 36.

Livensparger’s liability turned on the recreational activity doctrine. Participants assume foreseeable, customary risks inherent in the activity and cannot recover for resulting injuries from another participant absent reckless or intentional conduct. Negligence is insufficient for injuries arising from those ordinary risks. ¶¶ 39–40, 46.

The Hugs conceded that flipping was an inherent UTV risk but argued that darkness, terrain, unmarked trails, and absent safety gear increased the danger beyond ordinary riding risks. The court treated those circumstances as relevant to the driver’s culpability, rather than as changing rollover into a risk foreign to UTV riding. Causes of lost control, including terrain and failures to follow safety procedures, belong in the negligence, recklessness, or intent analysis. ¶¶ 41–43.

Because intentional conduct was not alleged, the Hugs needed evidence of recklessness. Livensparger’s headlights and decision to retreat from an overgrown trail demonstrated caution toward existing risks. Any failure to anticipate earlier rain’s effect on the terrain amounted, on this record, to no more than carelessness. ¶¶ 46–47.

Her conflicting discovery responses about vegetation near the washout did not create a material dispute. The evidence showed she had not seen the washout before the rollover. Whether vegetation concealed it or she simply failed to notice it, neither explanation established conduct above negligence. The record did not show deliberate disregard of a known specific risk or conduct more egregious than simple carelessness. ¶¶ 44, 47–48.

• User status and premises eligibility are distinct. Permission, no fee or consideration, and recreational purpose establish recreational-user status; privately owned premises must separately satisfy the nonresidential requirement. Public access is unnecessary. ¶¶ 23–26.
• The source of the alleged duty controls the immunity analysis. When R.C. 1533.181 applies, an unsafe-condition claim remains barred even if framed as reckless failure to warn. Separate entrustment or equipment conduct requires its own analysis. ¶¶ 30–32.
• Ordinary recreational risks limit participant liability. Recovery for injury arising from such a risk requires reckless or intentional conduct; circumstances contributing to a UTV rollover can bear on culpability without changing the risk’s inherent character. ¶¶ 40–43.
• Recklessness requires more than deficient precautions. Conscious disregard and substantially greater risk than ordinary negligence are essential; recreational rules and customs also matter. The equipment ruling depended on absent evidence of duty and custom. ¶¶ 33–36.
• Factual disputes must matter to the governing standard. A contradiction insufficient to establish recklessness under either account does not prevent summary judgment. ¶¶ 20, 47–48.
• Consortium depends on a cognizable underlying tort. When the principal injury claims fail substantively, the derivative consortium claim fails with them. ¶¶ 50–51.

The opinion directs attention to the particular conduct and duty alleged. Premises-condition allegations, vehicle entrustment, equipment provision, and vehicle operation received different analyses. Its absolute-immunity language concerns claims based on unsafe premises when statutory immunity applies; the majority expressly analyzed the distinct conduct allegations separately.

For mixed-use land, the relevant record includes the property’s overall character, actual uses, and the accident site’s relationship to the residence and backyard. The majority’s conclusion did not make every property containing natural land nonresidential. The separate concurrence underscores the significance of how the residential and recreational areas are situated.

For recklessness, identifying hazardous circumstances alone was insufficient. The decisive questions concerned knowledge, deliberate disregard, degree of risk, and recreational custom. Likewise, a discovery inconsistency needed to affect that standard, rather than merely demonstrate conflicting testimony. The decision did not hold that darkness, rain, vegetation, or safety equipment can never bear on recklessness; it found the particular evidence inadequate. ¶¶ 33–36, 41–48.

Judge Duhart agreed with affirmance but disputed statutory immunity as a matter of law. He considered nonresidential character a factual question because the record did not establish that the accident site occupied a parcel separate from the home. He distinguished Thomas v. Chimera, relied on by the majority, because its recreational facilities were on a different parcel from the residence. His reasoning did not become the majority’s interpretation of the statute. ¶ 53.

He instead would have affirmed for the Hakes under the recreational activity doctrine and the absence of recklessness. He agreed that rollover was an ordinary risk and that entrustment was not reckless. He also reasoned that Candace would know the increased risk of darkness, the earlier rollover involved dissimilar circumstances, and failure to warn about possible creek-water accumulation did not rise to recklessness. That alternative analysis of premises warnings belongs to the concurrence. ¶ 54.

The court rejected all five assignments of error and affirmed the November 25, 2025 summary judgment of the Williams County Court of Common Pleas for the Hakes and Livensparger. Because Candace’s claims failed substantively, Jeffrey’s derivative loss-of-consortium claim also failed. The Hugs were assessed appellate costs under App.R. 24. ¶¶ 49–52.