Archive for the ‘Recreational Use Statute’ 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.”

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.”

On the Rocks – Woman Injury Jumping Off Rock in the Ocean; Liability is an Issue for the Jury (MA)

July 29, 2015

Cohen v. Elephant Rock Beach Club, Inc. (Massachusetts)
(trial court disposition)

he plaintiff was a guest at the defendant’s beach club.  During her stay, plaintiff saw guests swimming to and around, and jumping off of, a large rock that was 250 feet off the shore.  She decided that she wanted to go to the rock, and did so by walking from the beach to the water and swimming to the rock.  After watching adults and children take a running start and then jump off the highest part of the rock, plaintiff waited her turn and did the same thing.  After she jumped, her foot smashed into a portion of the rock below the surface of the water, resulting in a compound fracture of plaintiff’s leg.  Lifeguards from the defendant that were on duty noticed plaintiff after she hit the water and went to assist her.

Plaintiff filed a complaint alleging negligence based on premises liability, and a duty to warn her of the dangerous condition of the rock.  The defendant club filed a motion for summary judgment.  In support of its motion, the defendant filed a late supplemental expert witness report, and the plaintiff filed a motion to strike the report.  As to the motion to strike, the U.S. District Court denied the motion, finding that the untimely disclosure of the supplemental report was harmless.

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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.

Wipeout – Sledding Spectator at Birthday Party Assumed risk of Bring Struck (NY)

June 8, 2015

Photo by Tony Fischer (no changes made)

 

Savage v. Brown (New York)

The plaintiff was one of about 15 guests invited to a birthday party held for defendant Tracy Brown (“Tracy”).  The guests were invited to participate in snow sledding at the party.  Plaintiff was standing on the side of the hill watching other attendees sledding when she was struck by a sled carrying Tracy and another guest.  Plaintiff sued Tracy, Tracy’s mother, and the property owner for negligence.  The defendants moved for summary judgment based on the doctrine of assumption of the risk.  Alternatively, the property owner contended that it was entitled to protection of the state’s recreational immunity statute.

The trial court denied the defendants’ motions, and the defendants appealed.  The Appellate Division of the Supreme Court reversed the trial court decisions and entered judgment in favor of the defendants.  The Court compared the plaintiff to a spectator at other sporting activities who assume the risk of being struck, such as a spectator at a baseball game.  The Court concluded that by standing on the side of the hill while watching other people sledding, plaintiff assumed the risk of being struck by a sled.”  Plaintiff testified that she knew the sleds were moving very fast, and she had “observed someone else at the party lose control of her sled and crash into a snow bank, and she saw a sled strike another person.”  Plaintiff’s only argument was that “she did not assume the risk of being struck by a sled because she was standing off to the side of the hill in an area where sleds were unlikely to go.”  However, the Court noted that the evidence showed that the sled turned at the very end of the run and that plaintiff did not have any time to react to it.

In light of the Court’s decision based on assumption of risk, the Court noted that it need not address the applicability of the recreational immunity statute.

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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Blown Away – Recreational Immunity Statute Applied to Incident Involving Charity Hot Air Balloon Ride (WI)

April 30, 2015

Roberts v. T.H.E. Insurance Company (Wisconsin)
(final publication pending decision)

The plaintiff attended a charity event and was waiting in line to participate in a hot air balloon ride.  A gust of wind snapped a tether holding the balloon, sending the balloon and basket sliding across the land, where it crashed into the plaintiff and knocked her down.  The injured plaintiff filed a negligence lawsuit against the balloon ride operator and its insurer.  The defendants filed for summary judgment based upon Wisconsin’s recreational immunity statute, and the trial court granted the motion.  The plaintiff appealed.

On appeal, the Court of Appeals of Wisconsin affirmed the decision.  The plaintiff argued that the recreational immunity statute should not apply because the alleged negligent acts were not directed at the condition of the land itself and “there was nothing about the land that caused [plaintiff’s] injuries.”  The Court explained that the purpose of the statute was “to achieve the goal of encouraging property owners to open their lands to public recreation by limiting the liability of property owners,” and the Court further noted that the statute should be construed liberally in favor of property owners.

The statute applies to anyone that “own, leases, or occupies property” and it applies to “recreational activity” as detailed in the statute.  The plaintiff did not contest that the defendant occupied the property or that the activity satisfied the definition of “recreational activity” under the statute.  However, plaintiff argued that the statute provided that the liability at issue needed to relate to the property itself.  The Court disagreed, referring to the plaintiff’s misinterpretation of the statute and caselaw she cited in opposition to the motion.

The Art of Recreation – University Not Permitted to Assert Recreational Use Statute Protection Against Spectator Claim (TX)

April 21, 2015

University of Texas at Arlington v. Sandra Williams (Texas)

The plaintiff and her husband attended their daughter’s soccer game played at the football stadium at the University of Texas at Arlington.  She leaned against a gate that separated the stands from the playing field, and the gate unexpectedly opened, causing her to fall five feel to the artificial turf below.  Plaintiff injured a rib and her left arm and sued the University for premises liability, alleging negligence and gross negligence.  As part of its responsive pleadings, the University filed a motion to dismiss claiming (among other things) liability protection under the Texas recreational use statute.

Texas’ recreational use statute (like many similar statutes in other jurisdictions) protects landowners who open property for recreational purposes, limiting their liability to the recreational user.  In such cases, the burden of proof is elevated, requiring either gross negligence or an intent to injure.  Ultimately, the Texas Supreme Court affirmed the decision of both the trial court and the court of appeals and determined that a spectator at a competitive sports event is not “recreation” under the statute such that the liability protection did not apply.