Battelle Memorial Institute v. Big Darby Creek Shooting Range

948 N.E.2d 1019, 192 Ohio App. 3d 287
CourtOhio Court of Appeals
DecidedFebruary 22, 2011
DocketNo. CA2010-08-017
StatusPublished
Cited by10 cases

This text of 948 N.E.2d 1019 (Battelle Memorial Institute v. Big Darby Creek Shooting Range) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Battelle Memorial Institute v. Big Darby Creek Shooting Range, 948 N.E.2d 1019, 192 Ohio App. 3d 287 (Ohio Ct. App. 2011).

Opinion

Powell, Presiding Judge.

{¶ 1} We are asked to determine whether a Madison County trial court erred when it preliminarily enjoined the operation of a shooting range in a dispute between the range and a neighboring research facility over whether fired bullets are escaping the range.

{¶ 2} Battelle Memorial Institute filed a complaint for a prehminary and permanent injunction claiming nuisance and negligence in the operation of the Big Darby Creek Shooting Range, L.L.C. (“Big Darby”). Battelle claimed that bullets fired from the range were landing on or striking structures on Battelle’s property. The Madison County Common Pleas Court granted the prehminary injunction after hearing more than two days of testimony. On appeal of that decision, Big Darby argues in its single assignment of error that the trial court erred in granting the prehminary injunction.

{¶ 3} Big Darby’s stated issue in its appeal is whether a trial court may grant a preliminary injunction on a claim for nuisance, “where the defendant is afforded immunity from the nuisance claim, and where there is no objective, scientifically valid expert or fact testimony supporting the existence of the claimed nuisance.”

[291]*291{¶ 4} According to R.C. 1533.84, the chief of the division of wildlife shall adopt rules establishing generally accepted standards for shooting ranges, and these rules should be no more stringent than National Rifle Association (“NRA”) standards and include standards for the limitation and suppression of noise and standards for public safety. At the time of its establishment, a shooting range shall comply with all existing local ordinances, regulations, or laws.1

{¶ 5} R.C. 1533.85 is titled “Immunities regarding noise at shooting ranges.” Most of the paragraphs of this statute deal with noise issues at a shooting range. However, R.C. 1533.85(C) states, “Notwithstanding any contrary provision of law, the courts of common pleas [and] municipal courts * * * shall not grant injunctive relief under Chapter 3767. or any other section of the Revised Code, under an ordinance, resolution, or regulation of a political subdivision, or under the common law of this state against the owner or operator of a shooting range in a nuisance action if the court determines that the owner’s or operator’s actions or omissions that are the subject of a complaint substantially complied with the chiefs noise rules or the chiefs public safety rules, whichever apply to the nuisance action.”

{¶ 6} Ohio Adm.Code 1501:31-29-03(A) states that in accordance with R.C. 1533.84, the chief of the division of wildlife establishes standards for shooting ranges in Ohio, addressing noise levels, hours of operation, and safety. Ohio Adm.Code 1501:31-29-03(A) also states that private or public shooting ranges in Ohio should substantially comply with these standards to receive the civil and criminal immunities granted under R.C. 1533.85.

{¶ 7} According to Ohio Adm.Code 1501:31-29-03(D), private and public shooting ranges should substantially comply with safety guidelines generally recognized and accepted by the NRA. “Suggested safety guidelines are described or explained in great detail in ‘The NRA Range Source Book, Section I, Chapter 2, (1999 Edition).’ ”2 The administrative code section also requires that each range implement a safety plan and includes, without limitation, a number of items the plan should include.3

{¶ 8} We have reviewed the extensive testimony and exhibits admitted at the hearing, and will provide only a brief summary of the evidence.

{¶ 9} Battelle’s campus consists of several buildings. Big Darby is located west of Battelle’s campus, with State Route 142 running north and south between [292]*292them. Big Darby has five shooting bays. The trial court made findings that Bay 1 is a 300-yard high-powered rifle bay with an earthen backstop, which had settled from 20 feet in height to 18.25 feet. The firing line of Bay 1 is 6,500 feet from three buildings on Battelle’s campus. Bays 2 to 5 are 50-yard ranges with much shorter backstops. The trial court found that the firing lines for Bays 2 to 5 are approximately 5,750 feet from the same three Battelle buildings.

{¶ 10} Battelle presented two witnesses who said that they had encountered gunfire coming from the direction of Big Darby. A sergeant with Battelle security testified that on one occasion in 2009, he saw employees in the north parking lot of Battelle “crouching over” as they moved quickly toward a building. The employees told him that they had heard bullets traveling through the trees just west of the north parking lot. The sergeant said that he had also heard bullets going through the trees and sounds of gunfire.

{¶ 11} Another witness was an off-duty Battelle employee who was fishing with his family at the recreation lake on the Battelle property in 2009. He had just commented to his wife that the gunfire from Big Darby was particularly loud that day when he had heard the whistling sound of a bullet hitting the cattails near where they were standing. The employee said his daughter had reacted to the whistling sound by dropping to the ground. The trial court observed that a police investigation of both gunfire incidents yielded no findings.

{¶ 12} The trial court stated that 13 bullets were recovered from the west side of three buildings on the north campus, directly down range from Big Darby. The trial court also noted that Battelle security found eight bullet-impact areas on the west-facing area of Battelle buildings. Big Darby emphasized that there were reports of gunfire heard in and around Battelle from sources other than Big Darby. For example, a Battelle security employee acknowledged that two individuals were discovered target shooting at a metro park east of Battelle’s campus. Employees who testified also acknowledged that there may be individuals who disagree with the nature of the some of the research conducted at the facility.

{¶ 13} Battelle presented the testimony of James Gombarcik, a senior ordnance technician working for Battelle, who was asked to look into at least two bullet strikes that were discovered. Asked about the situation where a bullet struck a vehicle, Gombarcik found that the bullet had traveled from east to west, or came from a direction east of Battelle. He also examined the bullet strike to an air conditioning unit (“HVAC”). Gombarcik testified that he believed that the bullet found below the unit had caused the strike mark on the HVAC unit and that the bullet had come from Big Darby.

{¶ 14} The trial court stated in its decision that it considered this witness for his lay testimony only. The trial court indicated that the witness was unable to [293]*293explain the underlying science of ballistics to give credibility to an expert opinion, but the court found that the witness’s opinion was “rationally based on his perceptions and helpful in determining the point of origin of that particular bullet.”

{¶ 15} Battelle witness, Junior L. Davis, was qualified by the trial court as an expert witness, but it is not entirely clear from the record the specific area in which Davis was qualified as an expert. Davis recently retired from and had extensive experience with security forces for federal facilities in Tennessee, and his experience included developing shooting ranges as part of his employment.

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Cite This Page — Counsel Stack

Bluebook (online)
948 N.E.2d 1019, 192 Ohio App. 3d 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/battelle-memorial-institute-v-big-darby-creek-shooting-range-ohioctapp-2011.