Cyclists injured on a bike path after running into a downed tree, could not recover because the association that assisted in taking care of the bike path owed no duty to the cyclists.Posted: June 17, 2019
If there is no duty, there is no liability. Always check to make sure there really is a duty owed to someone before you start to claim or defend negligence actions.
State: Texas; Court of Appeals of Texas, Second District, Fort Worth
Plaintiff: Norman Delamar
Defendant: Fort Worth Mountain Biker’s Association
Plaintiff Claims: general negligence and gross negligence
Defendant Defenses: No Duty
Holding: For the Defendants
City parks had an agreement with the local cycling group to assist in keeping the bike pats in good shape. The ultimate responsibility for the bike paths was still held by the city. An injured cyclist who ran into a downed tree could not sue the cycling group because they owed no duty to the cyclists because the association did not have the authority from the city and did not accept a duty with the agreement with the city.
On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.
Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.
The city’s contract with the association outlined things the association was to do to assist the city in keeping the trail available and generally covered trail maintenance. The city did not give up its right to control and manage the park where the trails were located.
The trial court dismissed the plaintiff’s claims, and this appeal ensued.
Analysis: making sense of the law based on these facts.
The first issue the court reviewed was this, a negligence claim or a premises liability claim.
Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.”
The differences are subtle, but:
To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach.
The difference is, one is based on the actions of the defendant, and the other is based on a condition of the land.
While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence.
As similar as they may appear to be, you cannot recover on the same set of facts for both a negligence action and a premise’s liability action. Even the court stated understanding the differences could be “tricky.”
The trial court and appellate court found the plaintiff’s claims sounded in premise’s liability.
However, the court went on to discuss the plaintiff’s allegations that his claim was a negligence claim. The issue was whether the association had a legal duty to the plaintiff.
The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.”
Of the three, foreseeability as the dominant consideration, but not the sole consideration the court must review. Foreseeability alone is not sufficient to create a duty. “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.”
Although the association had some contractual responsibility for the trails, there was nothing the association could do about the trees. Only the city had the use of the chainsaws, and only the city could determine if a tree could be removed and then remove it.
And although it was foreseeable, a tree could fall on the trail; the issue required more analysis than that. The bike path was surrounded by thousands of trees. The plaintiff had ridden that path just two days earlier and admitted that the tree could have fallen two hours before he hit it. Although a tree falling was foreseeable, it was outside of the scope of something that you can do anything about, and on top of that the association had no authority to do anything about trees.
Finally, the agreement between the city and the association said nothing about the association agreeing to assume a legal duty to maintain the safety of the trails.
Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.
Because there could be no gross negligence if there was no general negligence, the plaintiffs gross and ordinary negligence claims were dismissed.
So Now What?
Foreseeability is a good thing for non-lawyers running a business or program to understand. Are your actions or inactions going to create a danger to someone.
The case does not state whether the city had any liability to the plaintiff, only the issues discussed in this decision were between the plaintiff and the defendant association.
More importantly, the court looked at trees falling as something that no one could really control. It was not liked anyone, the association or the city could come close to identifying trees that may fall in parks.
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To those who have served and will serve and to the families of all, thank you.
Happy Memorial Day
Weber State University is excited to invite your students to participate in its 2nd Annual Outdoor Weber idea pitch competition focused on adventure recreation concepts. The contest allows any qualified University student worldwide to compete for a $45,000 grand prize to help them turn their idea into a real business opportunity. Second and third place are awarded $20,000 and $10,000 respectively.
The entry process is fairly simple and designed to encourage students to simply create a 90-second pitch video explaining their outdoor recreation product or service (examples of our finalists in 2018 found here) and upload to our Outdoor Weber website between January 14, 2019 and January 30, 2019.
· Beginning February 1, 2019, the videos will go live on the Outdoor Weber website for general public voting purposes.
· The public may vote once per day per IP address for their favorite idea(s).
· The 25 videos with the most votes will move on to the semi-final round of judging.
· Ten additional concepts from ten pre-determined regions across the U.S. will also be selected to move to the next round. All in all, 35 concepts will move forward to the semi-final round.
· A panel of semi-final judges will score and select 10 finalists from the 35 who will be invited to the beautiful Ogden, Utah valley to work with a team of mentors to help them refine their business ideas and make preparations for their concluding 10-minute presentations to the final judges.
· The final judges will then select the winners of the competition who will be announced at our final awards ceremony on the evening of Friday, March 22, 2019.
Many of the students and mentors from last year commented this was one of the most well organized and fun events they had ever been involved with. We would love to see your students compete and invite you to share with them and your colleagues. For more information, please visit our website. Thanks!
Cass Morgan, PhD
Program Director & Assistant Professor | Outdoor & Community Recreation
Department of Health Promotion and Human Performance
Weber State University
Ogden, UT 84408
Office: Swenson 404D
Together, we achieved unprecedented growth and impact for birds.
Latest Issue of the American Journal of Play
Explores Play in the Age of Information
Now Accessible Free Online at journalofplay.org.
How has computation changed play? In the latest issue of the American Journal of Play, Miguel Sicart, associate professor at the Center for Computer Game Research at IT University Copenhagen, explores the relationship between computation and play in the Age of Information.
Sicart establishes that play describes the creation of worlds with other players and often with the aid of props such as games or toys. Play is not valuable for its utility, but rather for its own purposefulness. Sicart claims that computers too are valuable beyond their immediate utility. Sicart focuses on the concept of reontologization—the process of transforming information. Computers have fostered “a transition from analogue to digital data” and have, therefore, created a new world. Play is also reontologizing because it is appropriative, autotelic, and expressive. Play translates a situation, context, space, and time into the scene or instrument of play, has its own negotiated purpose, and is produced or performed with a personal touch. Just as computers have created a world in which we consume information differently, play creates a world in which we can express ourselves in a new way. Such similarities explain the merging of computation and play in the rise of video games.
Sicart frames his ideas with the stories told in the classic novel Don Quixote by Miguel de Cervantes. Quixote creates and inhabits an imaginary world in permanent clash with the actual world. Sicart believes that to comprehend the complexity of play, we must understand Quixotean Play: play capable of engaging with and appropriating reality regardless of resistance. Recognizing play within this new context will allow us to understand play as a form of expression in the Age of Information.
Additional articles in Vol. 10, No. 3 of the American Journal of Play include:
“Problem Gaming: A Short Primer,” by Thomas E. Gorman, Douglas A. Gentile, and C. Shawn Green.
“The Physical Environment for Play Therapy with Chinese Children,” by Yih-Jiun Shen, Slyvia Z. Ramirez, Peter L. Kranz, Xinhua Tao, and Yuanhong Ji.
“Developing a Dramatic Pretend Play Game Intervention” by Thalia R. Goldstein.
The American Journal of Play, an interdisciplinary scholarly journal devoted solely to the study of play, is published by The Strong in Rochester, New York.
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Does your photography move audiences to think about our environment? Show us your work and make a difference. Best of show in the Annual Environmental Photography Exhibition at the American Mountaineering Center in Golden, Colorado. Cash awards. Great venue and a great cause. Held in conjunction with the Colorado Environmental Film Festival. There will be a photography keynote speaker and reception. Details at https://www.ceff.net/photography-exhibition/
Under 19 and over 19 award categories.
· Call for Entries deadline: Wednesday, October 31, 2018
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Please share with all photographers, outdoor organizations, nature centers, parks, natural resource agencies.. Thanks.
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