Archive for the ‘Government Property’ Category

Free of Charge – City Immune Under Statute From Premises Liability Claim by Injured Youth Football Spectator (ID)

November 10, 2015

Hayes v, City of Plummer (Idaho)

The plaintiff was a spectator attending a youth tackle football game at a park owned by the defendant City of Plummer.  He was seriously injured after stumbling on uneven ground hidden by grass, and he filed a premises liability claim against the defendant for his injuries.  The defendant then filed a motion for summary judgment based on Idaho’s Recreational Use Statute.  The trial court granted the City’s motion, and the plaintiff appealed.

On appeal. the Supreme Court of Idaho affirmed the trial court’s decision.  Under the Idaho Recreational Use Statute, “[a] ‘landowner’ who provides property for public recreational use is afforded a limitation of liability and ‘owes no duty of care to keep the premises safe for entry by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.'”  This liability limitation applies when the property is offered “without charge.”  The plaintiff asserted that the school district’s payment of utilities and other expenses related to the park for the benefit of the defendant should be considered a “charge” such that the liability immunity did not apply.  However, the Court disagreed, explaining:

“The intent and purpose of Idaho’s Recreational Use Statute is to provide recreational access at no cost to the general public. I.C. § 36–1604(a) . In this case, the City and the School District have done that by allocating resources in order to provide and maintain the Park for all to enjoy. Because the City did not charge or receive compensation from [plaintiff] or the public for their use and enjoyment of the land, Idaho Code section 36–1604  provides a limitation on liability for [plaintiff’s] injuries. The district court properly granted summary judgment.”

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Failure to Warn – Supreme Court Find Triable Issue Regarding School District’s Breach of Duty to Deceased Youth (WY)

October 21, 2015

Amos v. Lincoln County School District No. 2 (Wyoming)

A five-year-old boy was attending a basketball game at a school that had been converted to a community center.  He was playing with other children on a stage near the basketball court when a lunchroom bench tipped over and fell on top of him, causing a basal skull fracture and killing him instantly.  The lunchroom bench had been removed from the gymnasium wall and had been placed against the wall in a storage room adjacent to the stage.  A year later, the boy’s personal representative filed a wrongful death action against the school district, along with the town and county where the facility was located.

The county filed an “affidavit of noninvolvement” with the trial court in lieu of an answer.  In response, the trial court entered an order dismissing the county from the action without prejudice.  The court explained that it found that “there [were] not enough facts to show that [the county was] responsible but if facts come forward or are discovered that show that [the county was] responsible, either directly or indirectly, [the county] shall be reinstated as a Defendant.”

The school district filed a motion for summary judgment, arguing that it had turned over possession and maintenance of the building to the community group such that it did not owe the plaintiff a duty of care and was, therefore, entitled to judgment as a matter of law.  The trial court denied the school district’s motion, holding: “Viewing these basic facts in a light most favorable to the Plaintiff, the School District, as the owner, is in the same position as a landlord is to its tenants and their invitees. As such, it owed all persons entering the building as invitees the duty of reasonable and ordinary care under the circumstances.”  Notwithstanding the ruling, the trial court did express concern that the facts may not ultimately establish a breach of the school district’s duty or that the district’s actions were the proximate cause of the incident.

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No Relief – Issue of Town’s Liability Regarding Condition of High School Baseball Field for the Jury (MA)

October 19, 2015

Murray v. Town of Hudson (Massachusetts)

A relief pitcher for a high school baseball team injured his knee while warming up in the visiting team bullpen.  He filed a lawsuit against the town that maintained the park at which the baseball field was located, alleging that the injury was caused by the town’s negligence and its wanton and reckless conduct in allowing the visiting team to use a dangerous bullpen.  The town filed a motion for summary judgment arguing that the negligence claim was barred by the Massachusetts recreational use statute, and that the evidence did not support a finding of wanton or reckless conduct.  The trial court granted the defendant’s motion, and the pitcher appealed.

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Worst Seat in the House – Triable Issue as to Whether Park Had Notice of Dangerous Bleachers (AL)

August 18, 2015

Shirley v. Tuscaloosa County Park and Recreation Authority (Alabama)

Plaintiff was sitting on bleachers at Munny Sokol Park in Alabama watching a youth football game.  Certain welds on the bleachers broke, causing plaintiff to fall and suffer personal injury.  Plaintiff filed a complaint against the parks and recreation authority that owned the property, alleging negligence and wantonness.  Plaintiff later amended her complaint to assert a claim under the Alabama Extended Manufacturer’s Liability Doctrine against several fictitiously named defendants.  The property owner filed a motion for summary judgment arguing it was entitled to immunity under Alabama’s recreational use statute.  The trial court granted the motion, and the plaintiff appealed.

On appeal, plaintiff argued that the trial court improperly entered summary judgment because there was a genuine issue of material fact as to whether the park was being used for commercial purposes and whether the property owner had “actual knowledge or an unreasonable risk of death or serious bodily harm” (both exceptions to the statutory immunity).

The Court of Civil Appeals of Alabama noted that plaintiff presented no evidence indicating that the use of the park was commercial in nature.  However, the Court found that the plaintiff did present evidence that the property owner had actual knowledge regarding the unreasonably dangerous condition of the bleachers and that it failed to guard or warn against the consequences.  The evidence established that an employee of the property owner arrived at the scene of the incident and commented, “I told them earlier to put a cone or a sign on this bleacher until we could get somebody out here to repair it.”  Another witness also confirmed that the the condition of the bleachers was known and should have been “coned off.”  The property owner disputed the facts, but the Court noted that it was required to review the evidence in the light most favorable to the non-movant.  Therefore, the Court reversed the decision and remanded the trial for further proceedings.

Out in the Cold – Claim for Injury to Snowmobiler Barred by Recreational Immunity Statute (OR)

July 31, 2015

Stringer v. U.S. Department of Agriculture (Oregon)
(trial court disposition)

A snowmobiler was injured in a national forest when he drove off an embankment.  He filed a lawsuit against the U.S. Forest Service under the Federal Tort Claims Act.  The Forest Service moved to dismiss the claim.  The U.S. District Court ruled that the Forest Service was entitled to statutory immunity.

The Court noted that as stated in the Oregon statutes, “it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes … by limiting their liability toward persons entering thereon for such purposes….” (citation omitted) advances this policy by granting “immunity to landowners who open their land to the public for recreational purposes.”  Referring to one of the exceptions to the immunity, the plaintiff argued that the Forest Service had waived the immunity by charging a fee for use of its lands.  Specifically, plaintiff cited that the Forest Service charged third parties for camping fees and ski-lift fees within the forest lands.  However, the Court disagreed, explaining “The Deschutes National Forest comprises approximately 1.8 million acres of land, including three independent ranger districts. (citation omitted)  A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.”

Tragedy at the Beach – State Not Liable for Youth Killed by Collapsed Sand (CA)

July 27, 2015

Buchanan v. California Department of Parks and Recreation (California)
(unpublished opinion)

A seventeen year old boy and his brother participated in a church youth group outing to Sunset State Beach in California.  During the outing, the boy and another member of the church group “created an unnatural condition that was not common to nature and would not naturally occur in that location, in that they were engaged in digging large holes in the sand in a picnic area being used by the church group, which was located within the park boundaries, separated from the beach by sand dunes, but within sight of a nearby elevated life guard station.”  The sand collapsed, burying and killing the boy.  A lawsuit was filed by the boy’s family, with the amended complaint alleging two causes of action.  First, the plaintiffs alleged that the California Department of Parks and Recreation (“DPR”) employees observed (or should have observed) the digging activities and they had a duty to warn the boy and the group of the known risks.  Second, the boy’s brother alleged a claim for negligent infliction of emotional distress as a bystander that witnessed the incident.

The DPR filed a demurrer to the amended complaint, asserting that the complaint failed to show that it owed a duty to the plaintiff and that statutory government immunity applied.  The trial court sustained the demurrer without leave to amend based on the Hazardous Recreational Activity immunity found in Government Code Section 831.7, and it entered a judgment of dismissal in favor of the defendant.  Plaintiffs appealed. (more…)

No Brakes – Village Not Responsible for Injuries to Woman Injured at the Bottom of Sledding Hill (NY)

June 24, 2015

Vannatta v. Village of Otisville (New York)

A woman was standing at the bottom of a hill in an area of village-owned park.  The area was not maintained by the village and was left in its natural state.  The hill had been used for sledding for approximately 50 years, and the woman had walked with her son to the hill to take him sledding.  As she was standing at the bottom of the hill, she was struck by someone coming down the hill.  She filed and action against the village claiming that it “failed to install and maintain proper signage or to employ personnel to prevent [or] safely restrict access to and use of the park and hill or to warn users, including pedestrians such as the Plaintiff, of dangers to such pedestrian users inherent in or incident to the use of the park and hill by others who may be using the park and hill for sleigh riding or similar recreational activities.”

The defendant moved for summary judgment under the New York General Obligations Law Section 9-103, which provides immunity “to private as well as government landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable for those activities.”  The trial court granted the motion and the plaintiff appealed.  On appeal, the Appellate Division of the Supreme Court agreed that the statute applied and affirmed the trial court ruling, entering judgment for the defendant.

Foul on the Defense – Basketball Rec League Waiver Void Under New York Statute (NY)

June 12, 2015

(photo by Dave Lindblom; unchanged)

Falzone v. City of New York (New York)

Plaintiff paid a fee to register to play in a recreation basketball league.  The league then paid the defendant New York City Department of Eduction a portion of the league registration fees for a permit in order to use a public school gymnasium.  During a game at the facility, the plaintiff was injured when his hand went through the glass window of a door that was behind one of the basketball hoops.  Plaintiff then filed an action against the City of New York and the Department of Education.  After initially responding, the defendant filed a motion for leave to amend their answer to add the affirmative defense of release and filed a motion to dismiss the complaint.  The trial court granted both motions and the plaintiff appealed.

On appeal, the Appellate Division of the Supreme Court determined that the trial court had properly granted the City of New York’s motion to dismiss in that it did not operate, maintain, or control the school premises.  As to the motion by the Department of Eduction to add the affirmative defense of release, the Court reversed the decision.  the Court explained that “[a]lthough leave to amend a pleading should be freely given [citation omitted], a court should deny a motion for leave to amend if the proposed amendment is palpably insufficient, would prejudice or surprise the opposing party, or is patently devoid of merit.”  The Court noted that the proposed amendment regarding the affirmative defense of release was “devoid of merit.”  The plaintiff had signed a “Player Waiver, Release of Liability and Indemnification Agreement” prior to his participation in the basketball league, but he paid a league fee to use the gymnasium and the payment of the fee rendered the waiver and release agreement void pursuant to New York General Obligations Law Section 5-326.  Under Section 5-326, every agreement in connection with a place of recreation in which the owner or operator receives a fee for the use of such facilities that exempts the owner or operator from liability for damages resulting from the negligence of the owner or operator is deemed void as against public policy and wholly unenforceable.

Show’s Over – Indemnity Dispute Between State Fair and Equipment Lessor Regarding Collapsed Stage Continues (IN)

May 29, 2015

In re Indiana State Fair Litigation (Indiana)
(one Judge dissenting)

This case arises from a collapsed stage at a state fair in August of 2011, which caused several deaths and injuries.  The issue was whether the stage equipment supplier (Mid-America Sound [“Mid-America”]) was entitled to indemnification from the event operator (the Indiana State Fair Commission [“Commission”]) based on the terms and conditions of the typical course of business between them.

Dating back to the mid-1990s, the Commission leased temporary roof structures and other equipment from Mid-America to use for outdoor concerts on property operated by the Commission.  During the last ten years of their relationship, the parties followed the same procedure with regard to the equipment leasing.  Mid-America delivered the equipment before the event and then later returned to pick up the equipment after the event.  When it picked up the equipment, Mid-America would sign contracts for the rented items and submit the contracts to the Commission.  The Commission audited each contract to make sure it conformed to the agreement of the parties and then issued payment.

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And the Runner is Out – Claim By Spectator at a Little League Game Barred by Recreational Use Statute (RI)

May 11, 2015

Carlson v. Town of South Kingston (Rhode Island)

The plaintiff was attending her son’s little league game being played at a park and field owned and maintained by the defendant town.  As she was walking from a batting cage area over to a concession stand to meet her son, she stepped in a “divot” and broke her leg.  Testimony established that the “divot” was created by kids waiting to get into the batting cages when they would dig their cleats into the ground.  Plaintiff filed an action against the town, alleging the town negligently maintained the premises.  The town moved for summary judgment based on Rhode Island’s Recreational Use Statute (“RUS”).  Plaintiff objected to the motion citing two exceptions to the RUS and alleging: (1) the town had “willfully or maliciously failed to guard or warn against a dangerous condition on the land,” and (2) the town had charged plaintiff for her access to the park.  The trial court granted the motion, and the plaintiff appealed.

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