Recreational Immunity — Contrasting Bicycle Opinions

September 4, 2018, Department, by James C. Kozlowski, J.D., Ph.D.

2018 September Law Review Recreational Immunity 410

The two court opinions described herein considered limited landowner immunity under a state recreational use statute. An applicable state recreational use statute significantly increases the likelihood that liability claims by injured recreational users will be dismissed on a pretrial motion for summary judgment.

Subject to minor jurisdictional variations, beginning in the 1960s, most states adopted some form of a model state recreational use statute. Under a recreational use statute, landowners who open their land for public recreational use free of charge owe no legal duty to guard, warn or make the premises reasonably safe for recreational use. As a result, landowners are immune from liability for ordinary negligence. The recreational use statute, however, will not immunize a landowner from liability for willful/wanton misconduct or gross negligence. Unlike mere careless unreasonable behavior, which typifies ordinary negligence, willful/wanton misconduct or gross negligence is significantly different in both character and degree. Like willful/wanton misconduct, gross negligence typically involves a reckless indifference to the physical well-being of others.

While reaching different conclusions under similar circumstances, the reasoning and legal analysis of both courts was consistent with the applicable law, providing insight into landowner immunity under a state recreational use statute.

Pothole Notice?
In the case of Cancel v. City of Providence, 2018 R.I. LEXIS 95 (6/22/2018), plaintiff Tara Cancel, as administrator of the estate of Ira Lukens, sued the city of Providence, Rhode Island, for injuries sustained in a city park. On June 9, 2014, Lukens was thrown from his bicycle after striking a pothole on a road in Roger Williams Park. (Lukens’ subsequent death was unrelated to the injuries he sustained in the bicycle accident.)

In her complaint, Cancel alleged Lukens suffered serious personal injuries because of the city’s negligence in maintaining the park. In addition to negligence, Cancel alleged the city should be held liable for a “willful and/or malicious failure to warn, inspect, and/or repair the roadway within the park.”

Based on the pretrial evidence in this case, the trial court held that the state recreational use statute (RUS) precluded any liability against the city of Providence. The trial court, therefore, granted the city’s motion for summary judgment, effectively dismissing Cancel’s lawsuit. Cancel appealed to the state Supreme Court.

On appeal, Cancel claimed further trial proceedings were necessary to address unresolved “genuine issues of material fact” regarding the applicability of the RUS. According to Cancel, reasonable minds could differ “whether the city knew of the dangerous condition of a pothole on a street in Roger Williams Park (the park) and whether it ‘willfully and/or maliciously failed to warn’ of the pothole.” If so, the RUS would not protect the city from liability. Accordingly, the issue before the state Supreme Court was whether the pretrial record left open the possibility that the city “knew of the dangerous condition and willfully and/or maliciously failed to warn against it.”

As noted by the state Supreme Court: “The purpose behind the RUS is to encourage landowners to open their property to the public for recreational use by limiting landowner liability.” Further, under the RUS, the court found recreational users are afforded the same legal status as trespassers under traditional common law principles. For recreational users and trespassers alike, a landowner owes no legal duty of care “other than to refrain from willful or wanton conduct.”

On appeal, Cancel argued sufficient pretrial evidence existed to support her claim for landowner liability based on the RUS exception for “the willful or malicious failure to guard or warn against a dangerous condition.” Cancel claimed the pretrial testimony of the park director and the park superintendent were indicative of willful or wanton misconduct.

The park director had testified that “there is no regular schedule for inspection of the roadways within the park.” Moreover, the park director had admitted that “the strip of road where the pothole was located was driven over daily” by the park superintendent. Further, Cancel claimed pretrial photographic evidence of the pothole made it “clearly foreseeable that any reasonable person would recognize that a pothole of this size should be remedied, repaired or marked off so as to not cause a danger to the public.”

The state Supreme Court found the RUS applied to the city because the park was “open to the public free of charge and that Lukens was engaged in the recreational activity of riding his bicycle at the time he was injured.” Accordingly, the specific issue on appeal was whether the willful or wanton misconduct exception in the RUS was applicable.

In addressing this issue, the state Supreme Court had to determine whether Cancel had produced sufficient pretrial evidence to indicate “the city had any notice concerning the pothole.” In determining whether the city had been put on sufficient notice of a dangerous condition, the court would also consider the number of serious injuries flowing from a known risk.

While testimony indicated the park director and the park superintendent “traveled in the area at least several times per week on their way to and from the park,” the state Supreme Court found Cancel had offered “no evidence, expert or otherwise, however, that demonstrates that the pothole was, in fact, present at any of the times that the park superintendent drove over the roadway or that the city had received any complaints or other notice concerning the condition of the roadway.” Moreover, the court found mere allegations that the park director and park superintendent must have known of the pothole were insufficient to establish “the city’s knowledge of a dangerous condition.”

Similarly, the court found no pretrial evidence had been produced to “support an assertion that the city willfully or maliciously failed to guard or warn against the pothole.” In particular, the court noted there was “no evidence that the city had actual knowledge of the pothole, had received complaints regarding the condition of the roadway, or had notice of any past incidents resulting from the condition of the roadway.”

As a result, the state Supreme Court affirmed the summary judgment in favor of the city of Providence. (Compare: “Cliff Collapse Accidents Test Recreational Use Statutes,” Parks & Recreation, Mar. 2012.

Uncovered Drain Trench
Similarly, in the case of City of Texas City v. Woodkins, 2017 Tex. App. LEXIS 4917 (5/31/2017), the state appeals court considered the applicability of the state recreational use statute to a liability claim involving a bicycle accident. In her lawsuit against the defendant City of Texas City, plaintiff Joyce Woodkins alleged she sustained multiple injuries on city-owned land. Woodkins alleged her injury was caused by a premise defect: an uncovered drain trench. Woodkins was riding her bicycle on a sidewalk in the city-owned Carlos Garza Sports Complex when she unexpectedly crashed into an “uncovered and unmarked trench” that caused her to fall.

The trench extended across the sidewalk and was 6 inches deep and 30 inches wide. The trench served as a drain, directing rain runoff from the parking lot across the sidewalk into a grassy area. There were two trench drains that crossed the sidewalk where Woodkins fell. Each drain was designed to be covered by a 169-pound metal plate; the edges of the plate sat in an indentation in the adjacent sidewalk so that the plate’s top was flush with the sidewalk.

According to Woodkins, one of the drains was missing its metal plate when she encountered it. Woodkins sued the city, alleging negligence and gross negligence. In response, the city argued it could not be held liable because “the recreational use statute limits the governmental unit’s liability for premise defects when the injured party is engaged in a recreational activity.”

As characterized by the city, under the recreational use statute, the city “did not owe Woodkins a greater degree of care than that owed to a trespasser,” i.e., the city could be held liable “only if it was grossly negligent or acted with malicious intent or bad faith.”

Moreover, the city claimed “Woodkins could not establish gross negligence without evidence that the City had actual knowledge of the alleged premise defect.” According to the city, the pretrial evidence did not show the city had the requisite knowledge of the uncovered trench necessary to support a claim of gross negligence. On the contrary, the city claimed its lack of knowledge was established by “affidavits from two city employees who testified that a crew member was assigned to the complex for routine maintenance on the day of the incident and the two previous days.” According to these affidavits, “there was no work request regarding the drain or cover.”

In the opinion of the trial court, the pretrial record did not conclusively establish that the state recreational use statute precluded any liability under the circumstances of this case. The trial court, therefore, denied the city’s plea to dismiss Woodkins' lawsuit. The city appealed.

Gross Negligence
As described by the appeals court, the state recreational use statute provided as follows:

[I]f a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises. A premises owner owes a trespasser a common-law duty not to injure that person willfully, wantonly, or through gross negligence.

As cited by the appeals court, state courts and the state legislature in Texas had defined gross negligence as follows:

[A]n act or omission which, when viewed objectively from the standpoint of the actor at the time of its occurrence, involves an extreme degree of risk of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

As noted by the court, the city did not challenge “Woodkins’s allegation that the uncovered trench in the sidewalk was unreasonably dangerous.” The issue, however, was whether this unreasonably dangerous condition constituted ordinary negligence or gross negligence.

According to the appeals court, “actual knowledge” would distinguish gross negligence from or ordinary negligence:

[W]hat differentiates gross negligence from ordinary negligence is the requirement that the governmental entity had ‘actual knowledge’ of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition could develop over time.

Moreover, the appeals court acknowledged: “A recreational plaintiff, such as Woodkins, may therefore maintain a premise defect claim against a landowner as long as there exists a factual dispute regarding the landowner’s gross negligence with respect to the alleged defect.”

According to the appeals court, to establish the city’s liability for gross negligence under the state recreational use statute, Woodkins would have to prove a city employee had actual knowledge of the premise defect. To demonstrate its lack of “actual knowledge,” the city relied on the affidavits of two city employees, the parks superintendent and the director of recreation and tourism.

The parks superintendent supervised maintenance and upkeep in the city parks. Regarding the city’s knowledge of the drain cover’s removal, the parks superintendent testified his staff had “never removed or replaced the metal cover during the course of their duties, prior to the alleged incident involving Ms. Woodkins.” He did, however, admit that he had observed “the drain cover to be missing from one of the drains in the Complex, near the ball fields” after being notified of the incident in which Woodkins was injured on July 10, 2014.

Further, the parks superintendent testified that he did not “personally recall any work requests, complaints, or injuries involving the drains at the Complex” since its opening in 2010. He also testified that he had “not heard or found any reports on the drain cover ever being removed” prior to Woodkins' injury. According to the parks superintendent, “work requests” could be based on “an observation by crew leaders or complaints and requests” submitted to the parks department by the public.

The parks superintendent testified that routine maintenance reports for the complex in the days immediately preceding Woodkins’ injury did not reference a “work order for the drain or the drain cover.” Based on his information, the parks superintendent testified “the City was unaware of any defective condition that caused or contributed to the incident.” The director of parks and tourism concurred with the superintendent that the city was unaware of any defective condition that caused or contributed to the incident on or prior to the date of Ms. Woodkins’ fall on July 10, 2014.

Despite this testimony from the parks superintendent and director that the city was “unaware of any defective condition” prior to Woodkins’ injury, the appeals court found “these affidavits fall short of negating the actual-knowledge component of gross negligence.”

While the superintendent had testified his park staff did not remove the cover, in the opinion of the court, this left open the possibility that the park staff may have had “actual awareness of the uncovered condition of the trench.” Moreover, the appeals court found “the lack of prior complaints fails to establish conclusively that park staff did not, in this particular instance, have actual awareness of the trench’s uncovered condition”:

[The parks superintendent (Sefcik)] focused his affidavit on the work requests that park staff and patrons generated and Sefcik reviewed. But Sefcik did not discuss generally what type of work was done as routine maintenance and what type of work required a request, nor did he address specifically whether removal of the cover would have generated a work request.

In the opinion of the appeals court, this testimony did not address “who the crew member was, what he did, or what he observed.” Accordingly, the appeals court found this testimony did not conclusively disprove the possibility that “a crew member removed the drain cover for routine maintenance or saw that the cover had been removed.”

Without clear evidence that the city “lacked actual knowledge of the drain cover’s removal,” the appeals court found the trial court had not erred in rejecting the city’s plea to dismiss Woodkins’ lawsuit. In so doing, the appeals court agreed with the trial court that the pretrial record did not conclusively establish that the state recreational use statute precluded any liability under the circumstances of this case.

Having found the city had “failed to conclusively negate actual knowledge of the dangerous condition” posed by the open trench, the appeals court affirmed the trial court’s order denying the city’s plea for a pretrial dismissal of the lawsuit based on the state recreational use statute. As a result, the case would be subject to further trial proceedings in which a jury would likely determine whether the city should be held liable for gross negligence.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Recreation, Health and Tourism at George Mason University. Law review articles archive (1982 to present).