YOUNGSTOWN — George Farris of Boardman is asking the Ohio Supreme Court to decide a lawsuit he filed against the Mill Creek MetroParks.

Farris states in litigation that he suffered serious injuries from falling from his bicycle after hitting a large pothole on Chestnut Hill Drive in Mill Creek Park on June 22, 2019.

So far, Mahoning County Common Pleas Court Judge Anthony Donofrio ruled in Farris’ favor and a panel of visiting appeals court judges from southern Ohio ruled against Farris.

The Ohio Supreme Court can refuse to hear the appeal, but Farris’ attorney, Nick Cerni, argued in a new filing with the state’s top court that it should hear the case to resolve “confusing and irreconcilable” rulings from various courts on “how and when” the state’s recreational immunity for government entities such as park districts should apply.

The question that has not yet been answered is whether a person is entitled to damages if he or she is riding a bicycle down a road in Mill Creek Park and is injured after hitting a large pothole.

Farris, then 65, was wearing a helmet and biking to the Garden Cafe in Fellows Riverside Gardens in Mill Creek Park to meet someone when he suffered a “blow to the head, broken ribs, a punctured lung” and bruises and cuts, according to court documents.

The suit alleges the MetroParks are at fault for not filing the pothole and / or failing to warn the public of the danger the pothole posed. The MetroParks asked Donofrio to dismiss the lawsuit, but he refused, saying there was a “genuine issue of material fact that should be resolved by (a) jury,” so dismissal without the need for a trial was not warranted.

For one thing, Farris said the pothole was obscured by the shade from the trees overhead, and the judge was not provided with enough information to determine whether the pothole was “open and obvious” or obscured by the shade.

The MetroParks appealed that decision to the Youngstown-based 7th District Court of Appeals, but the case was assigned by the Ohio Supreme Court to three 4th District Court of Appeals judges based in Circleville, south of Columbus.

The panel ruled in favor of the MetroParks, finding that the MetroParks was protected under the recreational-user-liability statute, which was enacted by the Ohio Legislature in 1963 to encourage owners of premises suitable for recreation to open their lands to public recreational use without fear of liability.

Over the years, however, the courts have narrowed the focus of that immunity, including a 2016 Ohio Supreme Court ruling that said such property owners, including park districts, must protect users from negligent park employees.

The Farris filing to the Ohio Supreme Court urges the court to resolve the question of whether a bike rider not engaged in a recreational pursuit when he or she suffers an injury in a park is entitled to damages.

“Consistent application of the recreational use immunity is of great importance for the entire state of Ohio,” Cerni argued.

The Farris filing cites two appeals court rulings that seemingly contradict each other. One from 2001 involves the a park in Bexley near Columbus, and the other, from 1987, involves the Cleveland MetroParks.

The Bexley case involves a bicyclist injury on a public road “very similar to the one (Farris) was traversing.” Neither the road in Bexley or the road in Mill Creek Park were designated as being “restricted to recreational use,” the filing states. Farris claims his use of Chestnut Hill in 2019 was not for recreational purposes, as he was riding to a cafe at 10 a.m. for a meeting with his brother.

Farris “was having lunch with a business partner, at a for-profit enterprise with whom (the MetroParks) shares profits,” the Farris filing states. Farris was “riding his bicycle as a means of transportation and not partaking in any recreational amenities offered by the park.”

The Cleveland MetroParks case involved a person who an appeals panel found to be a recreational user. The appeals panel found that the Cleveland MetroParks was protected by recreational user immunity because the bike rider in that case was a recreational user of a road.

Chestnut Hill Drive is a two-lane road with a posted speed limit of 25 mph and is not part of the MetroParks hike and bike trail, the Farris filing states. The hike and bike trail is different from Chestnut Hill Drive in that the hike and bike trail has “bollards” that prohibit two-lane motor vehicle traffic, whereas Chestnut Hill has a northbound lane and a southbound lane. The park district acknowledged that Chestnut Hill had been designated as a top-five priority for repaving at the time, the filing states.

A road closure notice from the MetroParks states that beginning today, both Chestnut Hill Drive and West Park Drive, from Lily Pond Drive to West Glacier Drive, will be closed for an asphalt resurfacing project. Work on the projects includes milling and patching of the existing asphalt, installation of new courses of asphalt and new pavement markings, the notice states.

Chestnut Hill Drive runs from near the Scholl Recreation Area on Bear’s Den Road and state Route 62 at Lanterman’s Mill.

“Farris was not in an area dedicated to recreational use,” the filing states. “The roadway in question is unequivocally a public thoroughfare, and the park has a duty to maintain said road. The recreational use immunity would more appropriately apply to the MetroParks Bikeway or the West Golf Hike and Bike Way (a path designated for recreational use, that is not intended for two-lane motor vehicle traffic),” the filing states.

The appeal asks the Ohio Supreme Court to rule that the case to return to Mahoning County Common Pleas Court so it can proceed to trial.