¶1 dissenting.
¶2 {¶ 13} I dissent because, as in Ryll, the cause of the injury — the city employee’s negligence — had no nexus to the premises. The rolling mechanism did not engage itself — and the gate did not close itself. The cause of Mitchell’s injuries was properly linked to the actions of the city’s employee and had nothing to do with the rolling mechanism or gate, except that the gate or mechanism was the means of the injury. This is not a case of an employee contributing to the injury; rather, the employee caused the injury, and the premises issues are incidental to that analysis.
¶3 {¶ 14} Of course, governmental immunity is a historical accident and violates the Ohio Constitution; 8 but since the Ohio Supreme Court refuses to recognize that fact, we have to deal with it.
¶4 {¶ 15} As noted in Ryll, “R.C. 1533.181(A)(1) does not state that a recreational user is owed no duty. Instead, R.C. 1533.181(A)(1) immunizes an owner, lessee, or occupant of premises only from a duty ‘to keep the premises safe for entry or use.’ ” 9 The issue whether the premises were safe for entry and use is not at issue here — the premises were safe for use. But when an employee’s negligence alone creates an unsafe condition that injures a plaintiff, that negligence should not be excused merely because the plaintiff is a recreational user and the instrumentality inflicting the injury is arguably a part of the park premises.
¶5 {¶ 16} Doing just what the Ohio Supreme Court warned against in Ryll, the majority in this case allows immunization of owners, lessees, and occupants for a negligent act merely because it occurred on “premises.” As the Ohio Supreme Court put it, that is to “allow R.C. 1533.181 to immunize owners, lessees, and occupants for any of their negligent or reckless acts that occur on ‘premises.’ The plain language of the statute indicates that the General Assembly had no such intention.” 10 Though the majority claims that I do not “offer any authority for reversing the decision of the trial court,” the Ohio Supreme Court’s clear language would seem authority enough. Not to mention logic, common sense, and the plain words of the statute.
¶6 {¶ 17} The purpose of recreational immunity is to encourage landowners, including government landowners, to allow recreation' — hiking, hunting, fishing, and the like — on their land without liability if a hiker falls in a gopher hole. It *808 takes a singular sophistry to stretch that into immunity for the landowner’s employees if they negligently injure recreational users.
¶7 {¶ 18} The majority is correct that in cases after Ryll, the Court of Claims has meandered blithely on, evidently unaware even of RylVs existence. I invite the reader to examine the two rightly unpublished cases cited by the majority in footnote seven. It will not take long. I would not dignify them by citing them in a real case. They are short-shrift responses to pro se citizens’ attempts to be made whole because of state employees’ negligence. One case even implies that if a park ranger negligently runs over you with his truck, then you are just out of luck if the incident happens on state land. And if that same ranger accidentally shoots you for no reason, I guess the result would be the same — immunity. Horsefeathers.
¶8 {¶ 19} No one, with it seems the exception of a few judges, could believe that R.C. 1533.181(A)(l)’s abrogation of the duty “to keep the premises safe for entry or use” allows state or city employees — or private landowners — to willy-nilly run down citizens with vehicles, or to smash them with fence gates. But that is just what the majority decides today.
¶9 {¶ 20} The gate, fence, and premises are a red herring. A stinking one at that. The wrong alleged here did not implicate the fence, gate, or rolling mechanism, or any other unsafe condition on the premises. The nexus between Mitchell’s injuries and the “premises” was incidental and secondary to that between the city employee’s negligence and Mitchell’s injuries.
¶10 {¶ 21} Preferring not to declare open season on the citizens of Ohio, I dissent and would reverse the entry of summary judgment and remand the case for trial.
¶11 . Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141, 624 N.E.2d 704 (Pfeifer, J., concurring).
¶12 . 95 Ohio St.3d 467, 769 N.E.2d 372, at ¶ 15.