Recreational Use Immunity for Dangerous Sledding Hill

July 21, 2022, Department, by James C. Kozlowski, J.D., Ph.D.

august 2022 law review recreational use immunity for dangerous sledding hill 410

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Recreational use statutes (RUS) exist in most states. With minor jurisdictional variations, most of these statutes are based upon a model state statute from 1965, which provided that a landowner who opens his land for public recreational use free of charge owes no legal duty to guard, warn or make the premises reasonably safe for such use. The landowner, however, will still be liable for willful/wanton misconduct or gross negligence. Unlike mere carelessness, which typifies ordinary negligence, willful or wanton misconduct or gross negligence is much more egregious misconduct characterized by a conscious indifference and utter disregard for the physical well-being of others.

The legislative intent of the 1965 model RUS was to encourage public recreation access to private lands by providing limited immunity for private landowners against recreational injury liability. With some notable exceptions, as illustrated by the case described herein, courts in many jurisdictions also have applied recreational use immunity to injuries in public parks.

Frequent Sledding Accidents

In the case of Storm v. City of Brookings, 2022 U.S. Dist. LEXIS 33468 (S.D. 2/24/2022), the Defendant City of Brookings, South Dakota (the City), raised the state recreational use statute as a defense against negligence liability. In this case, Plaintiff Aaron Storm shattered his vertebrae while sledding down Larson Park Hill (the Hill) in the City during a family outing. Storm alleged the City was negligent and grossly negligent because “the City knew sledding on the Hill was dangerous and failed to warn of the danger or inform the public that the Hill was closed to sledding.”

In response, the City filed a motion for summary judgment based upon the state recreational use statute which, if granted, would effectively dismiss Storm’s lawsuit. In determining whether to grant the City’s motion for summary judgment, the federal district court would view the following material facts in a light most favorable to allowing Storm to proceed to trial. The Hill has been a popular sledding site in Brookings since the 1980s, and City of Brookings owns and maintains it. The east side of the Hill is the steepest side and historically the most popular side for sledding, but the public has sledded on all sides of the Hill through the years.

At some point before 2013, although the record does not establish when, Sunrise Ridge Road was built near the bottom of the east side of the Hill. The road created a hazard because people sledding down the east side of the Hill would sometimes sled into the street toward oncoming traffic. To prevent injury and traffic accidents, the City placed large hay bales at the bottom of the east side of the Hill to “catch” sledders before they slid onto the street. The City then began to receive reports that people sustained injuries from sledding into these hay bales. The City did not keep records of these injuries or any injuries generally from sledding on the Hill, but knew that the hay bales, in particular, and sledding on the Hill generally caused injuries over the years.

During the 2013 and 2014 winter season, the City’s parks and recreation fall and winter activity guide advertised the Hill as a sledding hill except when closed for extreme icing or other dangerous weather conditions. The guide further explained that the hay bales at the bottom of the Hill were installed for public safety.

Storm was injured while sledding on the south side of the Hill. While the City knew that people sometimes suffered injuries from sledding on the steeper east side of the Hill, city employees did not testify about or otherwise document any injuries sustained from sledding on the south side of the Hill.

The south side of the Hill has a gentler slope, but there is a concrete drainage ditch that runs east to west along its base over which sledders sometimes passed when sledding down the Hill’s south side. The ditch is about three feet wide and was constructed in the late 1980s or early 1990s. The record does not state how deep the ditch is, but the edge of the ditch forms a bump that sledders pass over before dropping down several inches or more into the ditch. The drainage ditch is plainly visible from the south side of the Hill when there is light snow on the ground.

In January 2014, Dr. Richard Hieb wrote the City’s director of parks and recreation stating that, in the past week, he and other doctors had treated several injuries from children who had been sledding on the Hill. The letter stated that “these injuries invariably involve running into the large cornstock bales that are placed at the base of the north end of the Hill,” and over years of treating sledding injuries in the city, “it has become obvious to the medical community that the bales in themselves are causing injuries.”

Although the letter refers to hay bales on the “north” side of the Hill, the record makes clear that the hay bales were installed on the east side. Dr. Hieb recommended replacing the bales with smaller bales that would provide more cushion or alternatively, “perhaps sledding off the north side of Larson Hill should be forbidden.”

Proposal to Close Sledding Hill

At a city council meeting in February 2015, the city manager proposed closing the Hill to sledding, stating:

We have long known of the potential injury hazards associated with downhill sledding at Larson Park. While a very popular winter recreational activity for kids, we repeatedly get reports of injuries from children hitting obstacles at the bottom of the hill. Despite our efforts to make the hill as safe as possible, accidents are unavoidable. However, the frequency is beginning to alarm us.

Every year we install hay bales at the base of the hill as a barrier to over-sledding. For the most part, while they are effective, some injuries still result. It is unfortunate that such incidents could result in the elimination of an otherwise enjoyable activity for the vast majority of users. We will re-examine this issue over the summer and see if we can find a better alternative for next winter.

In the fall of 2015, the city manager officially decided to close the Hill to sledding. The recorded notes of the parks and recreation advisory meeting that fall stated that Larson Hill would be closed to sledding. However, the city manager and the parks and recreation director later testified in their depositions that they had only closed the east side of the Hill because that is where, in their view, all the injuries occurred. The city manager told his staff that only the east side of the Hill was closed, but some city employees believed that the entire Hill had been closed to sledding.

This absence of clarity as to whether part or all of the Hill was closed to sledding was accompanied by less-than-ideal communication about the City’s no sledding or restricted sledding policy for the Hill. Following the 2015 decision, the City’s fall and winter recreational brochure deleted references to sledding on the Hill. The parks and recreation department did not publish any notice about the closure on its Facebook page.

A community newspaper, the Brookings Register, published the decision and included this quote from the city manager: “We are closing the one side of the hill facing the street. We are not going to close the other side. We’re doing this for liability and safety reasons.” KDLT news also interviewed the city manager and did a news report on the closure, during which the city manager explained that while the east side of the Hill was closed, sledders were welcome to sled on the other sides of the Hill.

In the fall of 2015, the City placed a no sledding sign on the east side of the Hill, but citizens routinely took down such signs. As a temporary deterrent, the City installed a fence in the middle of the east slope of the Hill, but sledders packed snow “ramps” up to the fence after heavy snow and sledded over it.

The City did not have an official policy for monitoring and maintaining sledding conditions on the Hill. During the 2015 and 2016 winter seasons, city employees would, however, periodically check the east side of the Hill and remove these snow “ramps.”

The City removed the fence sometime around the summer of 2016 and planted trees on the east side of the Hill to permanently deter sledders. After the trees were planted, the public continued sledding on the other sides of the Hill. The City placed a no sledding sign on the east side of Hill in the fall of 2016, 2017 and 2018.

Although the parks and recreation department had stopped advertising the Hill as a sledding hill in 2015, South Dakota State University continued to publish materials describing the Hill as a sledding hill. The City’s visitor’s bureau also advertised the Hill as a sledding hill from 2017 to 2021. Internet searches suggest that the Hill remains a popular place for sledding.

Drainage Ditch Sledding Injury

Plaintiff Storm was injured on November 17, 2018, when he and his wife, Deidre, were visiting her parents in Brookings for Thanksgiving with their two young daughters. Storm had been raised in Sioux Falls and Deidre had been raised in Brookings, but they live in Texas. Storm’s daughters, Ellie and Mia, had never been sledding; and Storm and his daughters, along with Storm’s brother-in-law, Kevin, and Kevin’s daughter, Riley, decided to go sledding and parked on the south side of the Hill in Larson Park.

Storm believed that the Hill was open to sledding, and the Hill did not have any “no sledding” signs on its south side. A no sledding sign had been posted on the east side of the Hill that year, but it had been taken down before Storm was injured. The City had not posted any no sledding sign on the south side of the Hill.

At the time, there was light snow on the ground, but the outline of the concrete drainage ditch and grass nearby were visible. Storm admitted he must have crossed the drainage ditch to walk to the top of the Hill, but he did not remember doing so.

Ellie, Mia, Riley and Kevin sledded down the south side of the Hill first, while Storm recorded them on his cellphone. Kevin and Riley sledded down the Hill and crossed the drainage ditch. Kevin stated that he felt a little bump when he went over the ditch but suffered no injuries. Kevin was not aware that the ditch was made of concrete, and Storm’s footage showed Kevin’s footprints in the ditch over the snow. Ellie sledded down the Hill and stopped before reaching the drainage ditch. Mia also sledded down the Hill without injury.

Storm then sledded down the Hill with Ellie in his lap. When Storm reached the bottom of the Hill and went over the drainage ditch, he “caught air” and came down on his tailbone at the far side of the ditch. Storm stated that it “felt like a grenade had gone off in his back.” He was in immediate and severe pain and was taken to the emergency room in Brookings before being transported by ambulance to Sioux Falls. Storm had shattered a vertebra, which required multiple surgeries. After Storm was injured, no sledding signs were posted on all sides of the Hill.

Storm suffers from pain and disability due to his injury. He used to be very active, but now cannot do many of the physical activities he used to enjoy without experiencing severe pain. He also has difficulty getting more than three or four hours of uninterrupted sleep and cannot do basic household tasks without pain.

South Dakota Recreational Use Statute

As cited by the federal district court, the South Dakota recreational use statute, Section 20-9-21, defines the “Liability of political subdivision or employees for invitational or permissive use of land” as follows:

[A]ny political subdivision of South Dakota, and its employees, by either directly or indirectly inviting or permitting the person to use the land described for outdoor recreational purposes or by charging a fee for admittance to parks, campgrounds, or other recreational areas, do not thereby: (1) Extend any assurance that the land is safe for any purpose; or (2) Confer upon any person the legal status of an invitee or licensee to whom a duty of care is owed; or (3) Assume responsibility for, or incur liability for, any injury to persons or property caused by an act of omission of the political subdivision of South Dakota, and its employees as to maintenance of the land. 

The South Dakota recreational use statute, Section 20-9-22, however, would not limit in any way a political subdivision’s recreational purposes liability for “gross negligence or willful or wanton misconduct of the political subdivision of South Dakota, or its employees.”

Gross Negligence, Willful/Wanton Misconduct

Under South Dakota law, the federal district court noted, “the phrases gross negligence and willful or wanton misconduct mean the same thing.” Moreover, the court found: “Reckless, willful, or wanton misconduct entails a mental element,” specifically, “the defendant must know or have reason to know of the risk and must in addition proceed without concern for the safety of others.”

While willful and wanton misconduct is not identical to intentional conduct, the court further acknowledged willful and wanton misconduct would “partake to some appreciable extent of the nature of a deliberate and intentional wrong.” In addition, the court found: “A defendant’s reckless state of mind may be inferred from conduct and actions so patently dangerous that a reasonable person under the circumstances would know, or should know, that his conduct will in all probability prove disastrous.”

The federal district court also recognized, “the requirements for alleging willful or wanton misconduct (i.e., gross negligence) are different than those for alleging negligence”:

While a plaintiff alleging negligence must prove merely that some harm is possible, a plaintiff alleging willful or wanton misconduct must prove a substantial probability of serious physical harm.

Citing precedent from the Supreme Court of South Dakota, the federal district court cautioned against “drawing the line of willful, wanton or reckless conduct too near to that constituting negligent conduct risks.” Accordingly, in the opinion of the court, it was important to clearly distinguish ordinary negligence from gross negligence to avoid “impossible confusion,” which could result in the “eventual disregard of the legislative intent to give relief from liability for negligence” under the state recreational use statute. The federal district court further noted: “Whether one acts willfully, wantonly, or recklessly is, like negligence, normally a jury question” to be resolved at trial, as opposed to being effectively dismissed on a motion for summary judgment.

Recreational Use Immunity

In this particular instance, the federal district court noted, “Storm’s first cause of action is for negligence.” As described above, under South Dakota law, the court acknowledged “cities are immune from liability for negligent conduct concerning public land used for recreational purposes.” SDCL § 20-9-20, 21. As a result, the federal district court held “the City is entitled to summary judgment on Storm’s negligence claim.”

While Storm did not contest summary judgment on his negligence claim, he did argue that “the City was grossly negligent through willful and wanton misconduct in its management of the Hill.” In so doing, Storm claimed “a general dispute of material fact” regarding the existence of gross negligence, which made summary judgment in favor of the City improper.

While a South Dakota city cannot be liable for negligence, the federal district court agreed the city could be held liable if “it was grossly negligent, that is, was engaged in willful and wanton misconduct.” SDCL § 20-9-22.

On the issue of gross negligence, the court agreed that a factual dispute existed between Storm and the city as to “whether the City had closed the south side of the Hill before Storm’s injury.” Storm claimed the Hill was closed based on the city manager’s memo to the city council, including the city manager’s statements at the parks and recreation advisory board meeting in the fall of 2015, as well as the testimony of several city employees. Accordingly, Storm argued “the entire Hill, including the south side, had been closed to sledding before his injury because the City was aware of injuries associated with sledding down the Hill.”

Under these circumstances, Storm alleged “the City was grossly negligent for failing to post signs that the south side of the Hill was closed to sledding or was dangerous.” Moreover, Storm maintained “he would not have gone sledding and been injured” if “signs [had]been installed on the south side of the Hill.” In addition, Storm contended “there was sufficient evidence that the City acted with a reckless state of mind because it had received reports of injuries sustained from sledding down the Hill over the years and failed to keep official records of these injuries.”

Initially, in responding to the original complaint in Storm’s lawsuit, the City had conceded that “the south side of the Hill had been closed.” However, relying on testimony from the city managers and the director of parks and recreation, as well as “public announcements that only the east side of the Hill had been closed,” the City subsequently claimed, “the south side of the Hill was never closed.” Moreover, in response to “evidence of injuries arising from the steep east side,” the City argued that it had not acted in a reckless state of mind. On the contrary, the City claimed it had expressed “a concern for the safety of others” and had attempted to address a known risk by having “the bales installed on the east side as a safety measure.”

The City also argued that it was “not grossly negligent because the drainage ditch did not pose a probable and easily perceptible risk of death or serious physical harm.” In so doing, the City pointed to “the absence of any evidence that the drainage ditch caused any injuries, apart from Storm’s injury, since it was built over [30] years ago.”

Deliberate Intentional Wrong

As cited by the federal district court, the Supreme Court of South Dakota had recently indicated the standard for gross negligence under SDCL § 20-9-22 must “partake to some appreciable extent of the nature of a deliberate and intentional wrong.”

In the opinion of the federal district court, the following allegations had merely established “Storm’s claims against the City are in the nature of negligence claims”:

[T]he City’s laxity in collecting and keeping information on sledding injuries or policing activity at the Hill, the City’s failure to post a warning sign or a no sledding sign, and the City’s alleged failure to take other steps to effectively close or communicate the closure of the south side of the Hill to sledding.

As a result, the court held the following evidence in this case “does not support a claim that the City engaged in willful or wanton misconduct or acted with conscious realization that serious physical injury was a probable result of that conduct”:

The City’s failures to install no sledding or warning signs on the south side of the Hill, or otherwise more effectively close the Hill to sledding, as a matter of law are not of the nature of a deliberate and intentional wrong necessary to satisfy the “gross negligence” standard set by South Dakota law to maintain this action against the City.

While “the drainage ditch may have posed an unreasonable risk,” the court similarly determined the City had not engaged in willful or wanton misconduct because the drainage ditch “did not pose an easily perceptible danger of death or substantial physical harm that was probable rather than possible.” In reaching this conclusion, the court took particular note of “the dearth of evidence that anyone suffered injuries from sledding over that drainage ditch in the last [30] years.”


Having found the state recreational use statute precluded any alleged liability for negligence or gross negligence under the circumstances of this case, the federal district court ordered the City’s motion for summary judgment be granted, dismissing Storm’s lawsuit.

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