Bowers v. State, Department of Natural Resources

McCormac, J. Plaintiffs-appellants, Robert D. Bowers II and Carol Bowers, filed a complaint in the Ohio Court of Claims alleging that the state of Ohio, Department of Natural Resources, Division of Wildlife, had undertaken a systematic and continuing maintenance program to increase the population levels of deer throughout Ohio, resulting in an increase from seventeen thousand deer in 1965 to more than one hundred twenty thousand in 1982. Appellants alleged, as a result of the state’s “negligent mismanagement” of the deer in Ohio, their orchard has been damaged severely by “marauding deer which are under the state’s ownership” resulting in damages to them of $26,558.40. The state of Ohio moved to dismiss the complaint on the ground that it failed to state a claim upon which relief can be granted, which motion was sustained by the Court of Claims. Appellants have appealed, asserting that their complaint stated a cause of action. The sole issue is whether there is any liability by the state of Ohio for damages caused by deer to private property as a result of the wildlife division’s management of deer in Ohio which has allowed the deer population to increase very substantially. R.C. 2743.02 provides that the state’s liability shall be determined in accordance with the same rules applicable to suits between private parties. This provision means that the state cannot be sued for its legislative or judicial functions, or the exercise of an executive or planning function involving the making of a policy decision which is characterized by the exercise of a high degree of official judgment or discretion. Reynolds v. State (1984), 14 Ohio St. 3d 68, 14 OBR 506, 471 N.E. 2d 776. The first issue is whether the management of deer in Ohio resulting in protection to the deer which allows them to increase in number is a basic policy decision characterized by the exercise of a high degree of official judgment or discretion. The answer to that *348 question is yes. R.C. 1531.08 provides that the Department of Natural Resources through the Chief of the Division of Wildlife has authority and control in all matters pertaining to the protection, preservation, propagation, possession and management of wild animals in Ohio. The chief is also given discretion to regulate the taking and possessing of wild animals at any time and place, or in any number, quantity or length and in any manner, and with such devices as he prescribes. There are many facets surrounding the determination of the protection and propagation to be given a particular species of animals which, of necessity, leads to policy decisions characterized by the exercise of a high degree of official judgment or discretion. Hence, the policy decisions of which appellants complain are outside the area in which the state may have its liability determined in accordance with the rules of law applicable to suits between parties. The decisions complained of herein are the high level policy decisions rather than the negligence of employees and agents of the state in administering the policies. Thus, it appears beyond doubt from the complaint that appellants can prove no set of facts entitling them to recovery. O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242, 71 O.O. 2d 223, 327 N.E. 2d 753. There is no duty on the part of the state upon which liability to an injured person may be predicated under R.C. 2743.02 to protect the property of that individual from actions of deer which are running at-large throughout the state. Ownership of wildlife is vested in the state in trust for the benefit of all the people. R.C. 1531.02. Thus, the duty of the state to manage the wild animals which exist in the state of Ohio as a result of the aforesaid policy decisions is a duty for the benefit of the public at-large rather than one owed to any particular individual. See Shelton v. Indus. Comm. (1976), 51 Ohio App. 2d 125, 5 O.O. 3d 286, 367 N.E. 2d 51. Appellants’ assignment of error is overruled, and the judgment of the Ohio Court of Claims is affirmed. Judgment affirmed. Strausbaugh, J., concurs. Handwork, J., dissents. Handwork, J., of the Sixth Appellate District, sitting by assignment in the Tenth Appellate District.