Strange, camp director/AMGA certified rock guide charged with endangering children, on climbing trip

Obviously, there are some facts missing, this is really dumb, there is an overzealous prosecutor; someone in the family knows someone in county office or the plaintiff’s attorney pushed to have the county sheriff make their case for them.

It’s really sad to see an 11-year-old girl injured. It’s said to have a group of kids scared by the experience. However, there are some things about this that are confusing.

Here are the facts from the article. The defendant & defendant, first in a criminal case and second in a civil case was the camp director of a church summer camp; Camp Otterbein (an affiliate of West Ohio Conference of the United Methodist Church). The defendant took the kids to Hocking Hills Rock Climbing Rappelling to do something.

During the day either a female camper was lowered or rappelled into a hole. (I’m guessing it was a formation, why would you lower someone into a hole?) The rock formations are small and composed of long ago eroded water features. (I grew up in the area and have been there several times.) The article describes her as rappelling, however, when questioned the article states she said she was lowered in when she became stuck.

It is not clear what time she started her descent; however, she was not rescued until 1:30 AM. The girl suffers from compartment syndrome, which allegedly started to occur after she was discharged from the hospital.

The defendant allegedly created a substantial risk to the health or safety of a child, by violating a duty of care, protection, or support, which is the definition of child endangerment. (It’s a 10 page statute, so I’ll not post it. It is a good statute; however, it is also the statute used to hold adults criminally liable when a kid gets in trouble because the adult allowed or left the child in a position to get in trouble.)

The child suffered:

…she suffered injuries including redness and bruising around her thighs due to the harness; bruising and abrasions on the right side of her stomach; abrasions on her back from her neck to her buttocks; abrasions on her right shoulder; bruising in her armpits; and lacerations between her legs where the harness was holding her.

I highlighted the injuries that would come whether you were trapped or not wearing a harness. The severity of those types of injuries might be increased based upon the length of time in the harness. However, if she was wedged, then she might not have had any weight on the harness. Also the injuries under her armpits suggest she was wearing a full body harness, but that is only speculation.

There were two things that did get my attention in the article. The girl admitted to investigators that she had volunteered to go down the hole, and no one had forced her to do so.

The second was that the mother told park rangers that she was going to find an attorney. (My kids stuck in a hole, but I’m going to find an attorney…..)

The defendant camp director was a certified “instructor” through the AMGA.

I’m trying to get more information about this accident/incident. Not much will be forth coming until after a plea bargain or criminal trial and then only what is in the criminal files. The civil case will take longer.

What a mess.

The article is: Camp director charged with endangering children

Please read the article, you might see things differently. Thanks to D. Twilley for sending me the link.

What do you think? Leave a comment.

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75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense.

Tennessee’s duty to protect its citizens more than its duty to safety to invitees to its state parks is refreshing.

Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

State: Tennessee Court of Appeals

Plaintiff: Evelean Morgan

Defendant: State of Tennessee

Plaintiff Claims: negligently creating or maintaining a dangerous condition at Colditz Cove State Natural Area

Defendant Defenses: (1) Tennessee recreational use statute Tenn. Code Ann. § 70-7-102 (1995), (2) lack of actual or constructive notice of a dangerous condition, and (3) assertion that the decedent’s fault exceeded its own

Holding: For the Defendant State of Tennessee

Year: 2004

After the local bars closed the deceased and several friends went to a local state park to continue talking and drinking. The park was created because of the rock formations and the 75’ Northrup Falls. After taking and drinking in the parking lot, several members of the group decided to walk to the falls. The trail was primitive with no lights. One member of the group of five had a flashlight.

At a Y in the trail, two members of the group sat down to talk. The remaining three continued to walk. At one point, one person went into the bushes to pee and fell over the cliff on his way back. One member of the group sitting at the Y came down to assist. Later that same person decided to go for help, taking the flashlight with him.

The two remaining parties tried to start a fire to no avail. Eventually, the deceased, the daughter of the plaintiff in this lawsuit, also fell over the cliff. Approximately, an hour later rescue workers found the deceased floating in the water at the base of the falls. The deceased, the subject to this lawsuit had a blood-alcohol content of .18%

The mother of the deceased, the plaintiff, sued the State of Tennessee because the falls were a state park. In Tennessee this means filing a claim with the Tennessee Claims Commission. The claims commission commissioner reviewed the motions and granted the State of Tennessee’s motion for summary judgment. The plaintiff appealed. The commissioner’s decision was not based on the Tennessee Recreational Use Act but was based on the state’s defense of “(2) its lack of actual or constructive notice of a dangerous condition, and (3) its assertion that the decedent’s fault exceeded its own

Several states employ a separate state agency to handle claims against the state. The commissioner or judge hearing the claims is usually an attorney, called an administrative law judge. These judges operate with a separate set of rules of civil procedure and sometimes rules of evidence. The entire procedure is controlled by the statute that outlines how the state may be sued.

Summary of the case

The appellate court first looked at the Tennessee Recreation Use Act to see if it applied to this case. For the plaintiff to defeat the recreational use act, she must:

(1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104.

The court quickly determined that Tennessee was a landowner and that hiking and/or sightseeing (at night) was a recreational activity. The third issue was whether an exception to the act applied to the case. The sole exception argued by the plaintiff was the actions of the state were gross negligence.

Under Tennessee’s law, gross negligence is defined as:

… negligent conduct reflecting a reckless disregard for the safety of others. It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. It differs from ordinary negligence only in degree, not in kind. Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct.

Ordinarily, the determination of whether a defendant’s actions were gross negligence is a factual determination, which can only be done by the trier of fact or a jury. However, if the facts are not in dispute and conclusions reasonable drawn from the facts would only lead to one conclusion; a court can determine if the acts rose to the level of gross negligence.

We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area.

The court then made a statement that places Tennessee in the minority, that the protection of the natural area in this case takes precedence over the safety issues.

The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary for a natural area such as Colditz Cove.

The court held that the recreational use act applied, and the plaintiff had not raised any defenses to its application.

The court then looked at the second issue, whether the state met the ordinary reasonable person standard of care for a landowner.

The State is not the insurer of the safety of persons on its property. It is, however, liable to these persons to the same extent that private owners and occupiers of land are liable, because Tenn. Code Ann. § 9-8-307(a)(1)(C) has imposed this common-law duty on the State. Tenn. Code Ann. § 9-8-307(a)(1)(C) provides that the State may be held monetarily liable for negligently created or maintained dangerous conditions on state controlled real property.

The state, as a landowner, has a duty to exercise reasonable care to prevent foreseeable injuries to persons on the premises. To prevail, the plaintiff must prove the actions leading to the fatality were a reasonably foreseeable probability. The court found this had not been proven.

The record contains no factual, legal, or policy basis for concluding that the State should have foreseen that intoxicated persons that were unfamiliar with the Colditz Cove State Natural Area would hike down the trail to Northrup Falls in the middle of the night without adequate illumination.

The final argument made by the plaintiff was the state’s gross negligence was greater than the negligence of the deceased. Having found the state was not grossly negligent, this argument also failed.

Ms. Zegilla’s [deceased] voluntary intoxication on the evening of July 26, 1997 does not relieve her from the responsibility of her own negligence. She was required to use reasonable care under the circumstances, and her conduct must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person. Accordingly, if her conduct while intoxicated was a proximate cause of her death, it may be compared with the fault of the other parties whose fault was also a proximate cause.

It cannot be reasonably disputed that Ms. Zegilla was intoxicated when she arrived at Colditz Cove State Natural Area after midnight on July 26, 1997. Even though she had never visited the natural area before, she decided to venture into a wooded area down an unfamiliar, rough foot path in the dark. After one of her companions fell to his death, she continued to walk around in the darkness even though she must have known that danger was close at hand. As tragic as her death is, the only conclusion that reasonable persons can draw from these facts is that her fault far exceeded any fault that may reasonably be attributed to the State.

The plaintiff failed to make any arguments that the state could be held liable for the death of her daughter.

So Now What?

State statutes that outline the procedures for a claim against a state are so varied; it is difficult to rely on any decision on this issue. Similar arguments can be made when reviewing a state’s Recreational Use Statute.

However, here, the State of Tennessee did nothing to cause injury to the deceased. More importantly for future generations, the state does not have to destroy its natural areas to prevent drunks walking around parks at night from getting hurt.

What do you think? Leave a comment.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss               #Authorrank

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Mitchell v. City of Dallas, 855 S.W.2d 741; 1993 Tex. App. LEXIS 1714

Mitchell v. City of Dallas, 855 S.W.2d 741; 1993 Tex. App. LEXIS 1714

Saundra Harris Mitchell and Jan P. Mitchell, Individually and as Next Friends of Ashley J. Harris, Appellants v. City of Dallas, Appellee

No. 05-91-01416-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

855 S.W.2d 741; 1993 Tex. App. LEXIS 1714

March 31, 1993, Filed

PRIOR HISTORY: [**1] On Appeal from the 68th District Court. Dallas County, Texas. Trial Court Cause No. 89-13400-C

COUNSEL: For Appellants: KRISTINA BLINE DIAL.

For Appellee: PATRCIA MEDRANO.

JUDGES: Before Justices Lagarde, Kinkeade, and Barber 1

1 Justice Will Barber succeeds Justice Jeff Kaplan, a member of the original panel. Justice Barber has reviewed the briefs and record in this case.

OPINION BY: WILL BARBER

OPINION

[*743] OPINION

Opinion By Justice Barber

This is a premises liability case. Saundra Harris Mitchell and Jan P. Mitchell sued the City of Dallas for damages sustained by their minor son when he fell from his bicycle at a municipal park. The City moved for summary judgment. The trial court rendered judgment in favor of the City. We reverse and remand.

FACTUAL BACKGROUND

Ashley Harris suffered serious injuries when he fell from his bicycle into a creek bed at Hamilton Park. The park is owned [*744] and maintained by the City of Dallas. The accident occurred at a part of the creek where there is a fifteen to twenty-five foot drop-off. This condition was created by a gabion wall constructed by the City for erosion control. [**2] The wall consists of rocks wired together. Ashley fell over the edge of the drop-off onto the rocks below.

The Mitchells allege that the City was negligent and grossly negligent in the construction and maintenance of the gabion wall. They also allege that the City failed to warn park users of the steep drop-off and failed to construct a fence or other barrier around this dangerous area.

ISSUES ON APPEAL

The Mitchells attack the trial court’s summary judgment on two broad grounds. First, they contend that this case is governed by common-law principles because the establishment and maintenance of public parks are proprietary functions. Alternatively, the Mitchells argue that their claims against the City are within the waiver provisions of governmental immunity under the Texas Tort Claims Act. They assert that fact issues exist concerning gross negligence in the construction and maintenance of the gabion wall and the City’s negligent failure to warn of or correct this dangerous condition.

LIABILITY UNDER COMMON LAW

In their fourth point of error, the Mitchells contend that the Texas Tort Claims Act does not apply to this case. Rather, the Mitchells argue that the City [**3] is liable under common-law principles because the establishment and maintenance of public parks are proprietary functions.

Under common law, the establishment and maintenance of public parks were deemed proprietary functions. See Dancer v. City of Houston, 384 S.W.2d 340, 342 (Tex. 1964); City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498, 499 (1928). These common-law classifications have been redefined under the Texas Tort Claims Act. [HN1] Section 101.0215 of the Act now provides that the operation of parks and zoos is a governmental function. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(13) (Vernon Supp. 1993).

The Mitchells argue that section 101.0215(a) does not reclassify all actions taken by a city regarding public parks. We refuse to adopt such a restrictive interpretation of the statute. To the contrary, the legislature specifically provided that [HN2] the proprietary functions of a municipality do not include those governmental activities listed in section 101.0215(a). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(c) (Vernon Supp. 1993).

We conclude that the claims against the City made the basis of this suit involve governmental functions. [**4] The Mitchells do not have any common-law cause of action against the City. We overrule the fourth point of error.

LIABILITY UNDER THE TEXAS TORT CLAIMS ACT

The Mitchells next contend that the trial court erred in granting summary Judgment because they stated a cause of action within the waiver provisions of governmental immunity under the Texas Tort Claims Act. They allege that the City is not immune from liability for negligent construction and maintenance of the gabion wall along the creek bank. See, e.g., City of Watauga v. Taylor, 752 S.W.2d 199, 202 (Tex. App.–Fort Worth 1988, no writ); Stanford v. State Dep’t of Highways & Pub. Transp., 635 S.W.2d 581, 582 (Tex. App.–Dallas 1982, writ ref’d n.r.e.).

The City argues that these allegations involve the design, upgrading, and placement of an erosion control deuce. The City contends that it is immune from liability because these activities involve discretionary functions. See, e.g., City of El Paso v. Ayoub, 787 S.W.2d 553, 554 (Tex. App.–El Paso 1990, writ denied); Tarrant County Water Control & Improvement Dist. No. 1 v. Crossland, 781 S.W.2d 427, 433 (Tex. App.–Fort Worth 1989, writ denied). [**5]

1. Governmental Immunity

[HN3] A municipality performing a governmental function is afforded sovereign immunity [*745] unless immunity has been waived under the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.109 (Vernon 1986 & Supp. 1993). A governmental unit is liable for personal injuries proximately caused “by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (Vernon 1986).

2. Discretionary Functions

The Texas Tort Claims Act creates certain exceptions to the waiver of governmental immunity. [HN4] Section 101.056 provides that the waiver provisions of the Act do not apply to claims based on:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or

(2) a governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

TEX. CIV. PRAC. & REM. CODE [**6] ANN. § 101.056 (Vernon 1986); see generally Lee M. Larkin, Comment, The “Policy Decision” Exemption of the Texas Tort Claims Act: State v. Terrell, 32 BAYLOR L. REV. 403 (1980) [hereinafter Larkin]. 2

2 The Larkin comment and several cases cited in this opinion involve the interpretation of the original Tort Claims Act contained in the Revised Civil Statutes. See TEX. REV. CIV. STAT. ANN. art. 6252-19 (Vernon 1970) (repealed 1985). The codification of the prior statute in the Civil Practice and Remedies Code did not effect any substantive change, and the language of the current version of the Texas Tort Claims Act is virtually identical to the prior statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 1.001 (Vernon Supp. 1993).

[HN5] The discretionary function exception to the waiver of sovereign immunity is designed to avoid judicial review of governmental policy decisions. State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex. [**7] App.–Fort Worth 1991, no writ). Thus, a governmental entity is immune from liability if an injury results from the formulation of policy. However, a governmental unit is not immune if an injury is caused by the negligent implementation of that policy. See Terrell, 588 S.W.2d at 787-88; Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38, 42 (Tex. App.–Austin 1982, writ ref’d n.r.e.); Larkin at 409. This distinction is often stated in terms of actions taken at the planning or policy-making level, which are immune, and actions taken at the subordinate or operational level, which are not immune. See McKinney, 814 S.W.2d at 866; Crossland, 781 S.W.2d at 433; Larkin at 410.

Design decisions made by the City are discretionary and therefore immune from liability. See Crossland, 781 S.W.2d at 433; Taylor, 752 S.W.2d at 202; Stanford, 635 S.W.2d at 582. Maintenance activities undertaken at the operational level are not discretionary functions and are not immune from liability. See City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex. 1985); Taylor, 752 S.W.2d at 202; Hamric v. Kansas City S. Ry., 718 S.W.2d 916, 919 (Tex. App.–Beaumont [**8] 1986, writ ref’d n.r.e.). There is some conflict in the case law regarding the characterization of construction activities. Compare Smith, 687 S.W.2d at 303, and Ayoub, 787 S.W.2d at 554 (indicating that city is not immune from liability for construction and maintenance activities), with Taylor, 752 S.W.2d at 202 (indicating that planning and construction are immune activities).

We hold that construction activities are not discretionary functions. These activities involve the implementation of planning or policy-making decisions at the operational level. Therefore, the City is not immune from liability for claims based on the negligent construction and maintenance of the gabion wall.

STANDARD OF CARE

We next determine the standard of care owed by the City to park users. The City argues that it only owes the duty owed to a trespasser. The Mitchells contend that the City owes the same duty as [*746] owed to an invitee because they paid for use of the premises through the payment of taxes and because of the nature of the premises defect.

1. Statutes

[HN6] Section 101.022 of the Texas Tort Claims Act provides:

(a) If a claim arises from a premises [**9] defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.

(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.022 (Vernon 1986) (emphasis added).

Section 75.002 of the Civil Practice and Remedies Code provides:

If an owner, lessee, or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:

. . . .

(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises.

TEX. CIV PRAC. & REM. CODE ANN. § 75.002 (Vernon 1986) (emphasis added).

These two statutes are in apparent conflict in cases where the owner or occupier of the premises is a governmental unit that gives implied permission to persons to enter the property for recreational purposes. We must resolve this conflict by examining the [**10] case law and implementing well-settled rules of statutory construction.

2. Case Law

One court has held that the statutory predecessor to section 75.002, article 1b of the Revised Civil Statutes, should apply only if the injured party was a trespasser. It held the statute did not apply in a governmental tort liability context by simply stating that the persons who used the premises were not trespassers. Trinity River Auth. v. Williams, 659 S.W.2d 714, 720 (Tex. App.–Beaumont 1983), aff’d in part a rev’d in part on other grounds, 689 S.W.2d 883 (Tex. 1985); see TEX. REV. CIV. STAT. ANN. art. 1b, § l (Vernon 1969). It should be noted that the statute did not declare that recreational users are trespassers but merely provided that the duty owed to such users is the same as that owed to trespassers. Another court has held that section 75.002 did apply to governmental units. Noting that section 101.022(a) provides that the governmental entity owes “only the duty that a private person owes to a licensee on private property,” the court held that the section 75.002 duty standard applied to the State. Crossland, 781 S.W.2d at 547. Although the Crossland court [**11] purported to rely on section 101.022(a) in reaching its result, it ignored the fact that such provision states the governmental unit owes the duty that a private person owes to a licensee.

3. Statutory Analysis

We are not persuaded by the reasoning of either Williams or Crossland. Instead, we look to the legislative history of sections 75.002 and 101.022(a).

Article 1b of the Texas Revised Civil Statutes preceded section 75.002. See Act of May 29, 1965, 59th Leg., R.S., ch. 677, 1965 Tex. Gen. Laws 1551, 1551-52. Until this statute was codified in the Texas Civil Practice and Remedies Code, it was contained in the “General Provisions” of Title 1. See TEX. REV. CIV. STAT. ANN. art. 1b, § 1 (Vernon 1969). The statutory predecessor to section 101.022(a) of the Texas Tort Claims Act was article 6252-19, section 18(b) of the Texas Revised Civil Statutes. Article 6252-19 was first enacted in 1969, four years after the enactment of article 1b. See Texas Tort Claims Act, 61st Leg., R.S., ch. 292, 1969 Tex. Gen. Laws 874, 878-79; TEX. REV. CIV. STAT. ANN. art. 6252-19, § 18(b) (Vernon 1970).

We conclude that section 75.002 and its predecessor, article [**12] 1b, were intended [*747] to be laws of general application. Section 101.022(a) and its predecessor, section 18(b) of article 6252-19, were specific laws applicable to governmental owners and occupiers of real property. [HN7] When two statutes conflict, the specific controls over the general. Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 496, 198 S.W.2d 879, 881 (1947); see also TEX. GOV’T CODE ANN. § 311.026(b) (Vernon 1988); Carr v. Hunt, 651 S.W.2d 875, 882 (Tex. App.–Dallas 1983, writ ref’d n.r.e). Further, a more recent statutory enactment prevails over an earlier one. TEX. GOV’T CODE ANN. § 311.025(a) (Vernon 1988); State v. McKinney, 803 S.W.2d 374, 376 (Tex. App.–Houston [14th Dist.] 1990, no pet.); Commercial Standard Fire & Marine Co. v. Commissioner of Ins., 429 S.W.2d 930, 933 (Tex. Civ. App.–Austin 1968, no writ).

4. Conclusion

We hold that section 101.022(a) controls over section 75.002. The duty owed by the City to park users under the Texas Tort Claims Act is the duty that a private person owes to a licensee. [HN8] An owner or occupier of land must refrain from injuring a licensee by willful, wanton, or gross negligence. An [**13] owner or occupant must also warn a licensee of any dangerous condition, or make the condition reasonably safe, if the land owner has actual knowledge of the dangerous condition and the licensee does not. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974).

EXCEPTIONS TO THE STANDARD OF CARE UNDER THE TORT CLAIMS ACT

The Mitchells argue that the duty owed by the City in this case is the same duty owed to an invitee. The Mitchells contend that the Texas Tort Claims Act creates a higher standard of care because: (1) they paid for use of the park through the payment of taxes; and (2) the steep drop-off created by the gabion wall constituted a special defect.

1. Taxpayer Status

The Mitchells first contend that their son was an invitee because they paid for use of the park through the payment of city taxes.

A similar argument was recently rejected by the San Antonio Court of Appeals in Garcia v. State, 817 S.W.2d 741 (Tex. App.–San Antonio 1991, writ denied). The plaintiff in Garcia sued the State of Texas under the Texas Tort Claims Act for damages sustained in a highway accident. He claimed invitee status because he paid for use of the highway through [**14] driver’s license fees and fuel taxes. The court held that the payment of fees and taxes does not confer invitee status for several reasons: (1) invitee status requires payment of a specific fee for entry onto and use of public premises; (2) the plaintiff’s contention would result in a lesser duty owed to nonresident users who did not pay taxes; and (3) the legislature did not intend such a broad grant of invitee status under section 101.022(a) of the Tort Claims Act. See Garcia, 817 S.W.2d at 743.

We adopt the reasoning of Garcia. We hold that [HN9] section 101.022(a) of the Tort Claims Act does not confer invitee status on park users based on the payment of taxes alone.

2. Special Defect

The Mitchells next contend that the City owed a higher standard of care because the steep drop-off created by the gabion wall constituted a special defect.

[HN10] A governmental unit has a duty to warn of or protect against special defects. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b) (Vernon 1986); see City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex. Civ. App.–Houston [1st Dist.] 1974, writ ref’d n.r.e.). The duty to warn of a special defect is the same duty owed to an invitee. [**15] County of Harris v. Eaton, 573 S.W.2d 177, 180 (Tex. 1978). A special defect must be distinguished by some unusual quality outside the ordinary course of events. Crossland, 781 S.W.2d at 433; Sutton v. State Highway Dep’t, 549 S.W.2d 59, 61 (Tex. Civ. App.–Waco 1977, writ ref’d [*748] n.r.e.). A condition is a special defect only if it presents an unexpected and unusual danger to ordinary users of a roadway. State Dep’t of Highways & Pub. Transp. v. Kitchen, 1993 Tex. LEXIS 26, 36 Tex. Sup. Ct. J. 678, 679 (March 24, 1993); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238-39 n.3 (Tex. 1992) (op. on mot. for reh’g). A longstanding, routine, or permanent condition is not a special defect. Crossland, 781 S.W.2d at 433.

The Mitchells do not argue that the condition created by the gabion wall was unusual or outside the ordinary course of events. The summary judgment evidence establishes that the drop-off near the creek bank was longstanding and permanent. We hold that the premises defect made the basis of this claim was not a special defect.

MOTION FOR SUMMARY JUDGMENT

We now consider the summary judgment rendered in favor [**16] of the City in light of our holding that (1) construction and maintenance activities are not discretionary functions, and (2) the duty owed to park users is the same duty owed to a licensee.

1. Standard of Review

[HN11] Summary judgment may be rendered only if the record shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX. R. Civ. P 166a(c); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989). A summary judgment seeks to eliminate patently unmeritorious claims and defenses, not to deny a party its right to a full hearing on the merits of any real fact issue. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).

[HN12] A defendant who moves for summary judgment must show that the plaintiff has no cause of action. Citizens First Nat’l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex. 1976). A defendant may meet this burden by either (1) disproving at least one essential element of each theory of recovery, Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991), or (2) conclusively proving all elements of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. [**17] 1972).

[HN13] In reviewing a summary judgment, we must take all evidence favorable to the nonmovant as true in deciding whether a fact issue exists. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We must indulge every reasonable inference and resolve any doubt in favor of the nonmovant. Id.

2. Application of Law to the Facts

a. Negligent Construction and Maintenance

The Mitchells allege that the City was negligent and grossly negligent in the construction and maintenance of the gabion wall. They specifically pleaded that the City was negligent in constructing the wall for erosion control “in such a manner so as to result in a dangerous condition by creating a 15 to 25 foot steep cliff drop-off . . . when the City should have built the creek bank in a non-cliff manner.” The Mitchells also alleged that “construction and maintenance of a 15 to 25 foot drop-off behind a public restroom in a public park without a fence and Warning signs demonstrates a lack of due care and conscious indifference to the health, safety, and welfare of those affected by it.” 3

3 Gross negligence is defined as “such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(5) (Vernon Supp. 1993). Absent a special exception, the allegation of “lack of due care and conscious indifference” contained in the Mitchell’s petition is sufficient to plead the duty owed by the City to park users.

[**18] The City characterizes these allegations as defective design claims. It correctly notes that design claims are discretionary functions for which governmental entities are immune from liability. However, the City has failed to conclusively demonstrate that design defect is the sole basis for the Mitchells’ claim.

[*749] The City argues it is entitled to judgment as a matter of law because there is no specific pleading or proof that the premises were unreasonably dangerous or that it breached any duty owed to park users. The City misconstrues the burden of proof in a summary judgment proceeding. It is incumbent upon a defendant as movant to conclusively negate at least one essential element of the plaintiff’s case. Citizens First Nat’l Bank, 540 S.W.2d at 294. [HN14] A plaintiff as nonmovant is not required to establish his right to prevail. Ramirez v. Bagley Produce Co., 614 S.W.2d 582, 584 (Tex. Civ. App.–Corpus Christi 1981, no writ). A nonmovant has no duty or burden whatsoever in a summary judgment case until the movant establishes its right to a judgment as a matter of law. Bankers Commercial Life Ins. Co. v. Scott, 631 S.W.2d 228, 232 (Tex. App.–Tyler 1982, [**19] writ ref’d n.r.e.).

The City presented no evidence of the original design of the gabion wall. The City did not show that the gabion wall was constructed and maintained pursuant to its original design and that the design of the wall was not otherwise modified. The City, therefore, failed to show that the Mitchells’ allegations were defective design claims and, thereby, failed to meet its burden of negating an essential element of the Mitchells’ case.

The Mitchells alleged that Ashley was injured when he fell from his bicycle down a steep cliff drop-off. The area was unfenced and located adjacent to the sidewalk. The Mitchells contend that this constitutes a dangerous condition. Ashley’s deposition testimony reflects that there was erosion of the ground underneath the sidewalk where he fell. 4 The City did not conclusively negate these allegations. The pleadings and deposition testimony are sufficient to create a fact issue regarding negligent and grossly negligent maintenance and construction.

4 Ashley’s testimony on this point is not very clear, but it is susceptible to the interpretation advanced by the Mitchells. In a summary judgment case, all inferences and doubts must he resolved in favor of the nonmovant. See Nixon, 690 S.W.2d at 548-49.

[**20] b. Failure to Warn or Make Safe

The Mitchells alleged that the City failed to warn of a dangerous condition in the area of the restrooms and sidewalk adjacent to the creek. They also claimed that the City failed to construct a fence or other barrier in the area or otherwise correct the dangerous condition.

The City relies on affidavits from three park officials to show that it lacked actual knowledge of any dangerous condition. The affidavits state that the City had no prior notice of a defect, dangerous condition, or similar accident. However, lack of notice from third parties does not conclusively negate actual knowledge. The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. The question of knowledge is a fact issue. See Keetch v. Kroger Co., 845 S.W.2d 262, 36 Tex. Sup. Ct. J. 273, 275 (December 2, 1992). An affidavit from a civil engineer states the drop-off should have been fenced off from the public area of the park. The engineer’s affidavit concludes that in failing to fence off or otherwise obstruct public movement into the area, “the City has failed to protect the [**21] public or give adequate warning to the public of a defect which created a dangerous condition.”

The City argues that Ashley must be charged with knowledge of any dangerous condition because the alleged premises defect was open and obvious. [HN15] The duty to warn or make safe applies when the licensee lacks actual knowledge. Payne v. State, 838 S.W.2d at 237; Tennison, 509 S.W.2d at 562. The City contends that the Mitchells have conceded that Ashley had actual knowledge of the condition of the premises. The response to the summary judgment motion recites that Ashley was aware of the existence of the creek. The response recites that Ashley, “being unaware . . . that the ground had eroded under the sidewalk next to this drop-off . . . fell over the edge and onto the rocks below.” [*750] The Mitchells never stated that Ashley was aware of the drop-off next to the sidewalk. The record does not conclusively establish that Ashley had actual knowledge of a dangerous condition. The lack of knowledge is an element of appellant’s claim that when disputed should be submitted to the fact finder. See Payne, 838 S.W.2d at 241.

SUMMARY

The establishment and maintenance [**22] of municipal parks are governmental functions under the Texas Tort Claims Act. The City is immune from liability for any claims involving the design of the gabion wall at Hamilton Park. However, the City is not immune from liability for claims based on the construction or maintenance of the wall. The duty owed by the City to park users is the same duty owed by a private person to a licensee.

We hold that the trial court erred in granting summary judgment. There are genuine fact issues concerning (1) gross negligence 5 in the construction and maintenance of the gabion wall, and (2) the failure to warn of or correct a dangerous condition. 6 We sustain the Mitchell’s second and third points of error.

5 The duty owed to a licensees being a duty to refrain from injuring by willful, wanton, or gross negligence.

6 The licensor must also warn of a dangerous condition, or make it reasonably safe, if the licensor has actual knowledge of the condition and the licensee does not have such knowledge.

We reverse [**23] the trial court’s judgment and remand this case for further proceedings consistent with this opinion.

WILL BARBER

JUSTICE


Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

Evelean Morgan v. State of Tennessee

No. M2002-02496-COA-R3-CV

COURT OF APPEALS OF TENNESSEE, AT NASHVILLE

2004 Tenn. App. LEXIS 62

November 3, 2003, Session

January 27, 2004, Filed

PRIOR HISTORY: [*1] Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed. Appeal from the Tennessee Claims Commission No. 99000125 W. R. Baker, Commissioner.

DISPOSITION: Affirmed and remanded.

COUNSEL: David H. Dunaway, LaFollette, Tennessee, for the appellant, Evelean Morgan.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Christopher Michael Fancher, Assistant Attorney General, for the appellee, State of Tennessee.

JUDGES: WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

OPINION BY: WILLIAM C. KOCH, JR., P.J., M.S.

OPINION

This appeal involves a fatal accident at the Colditz Cove State Natural Area in Fentress County. The mother of a woman who fell to her death from the bluff surrounding Northrup Falls filed a claim with the Tennessee Claims Commission. The State of Tennessee denied liability based on (1) the recreational use defense in Tenn. Code Ann. § 70-7-102 (1995), (2) its lack of actual or constructive notice of a dangerous condition, and (3) its assertion that the decedent’s fault exceeded its own. The commissioner granted the State’s motion for summary judgment. [*2] While he did not rely on the statutory recreational use defense, the commissioner determined that the State had no notice of a dangerous condition at the natural area, it was not reasonably foreseeable that intoxicated persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and the decedent’s actions were the sole proximate cause of her death. The decedent’s mother has appealed. We have determined that the commissioner properly granted the summary judgment because, as a matter of law, (1) the State established a defense under Tenn. Code Ann. § 70-7-102, (2) the decedent’s estate presented no evidence that the State had actual or constructive notice of an allegedly dangerous condition on the trail in the natural area, and (3) the decedent’s fault far exceeded whatever fault could be attributed to the State.

I.

Rochelle Copeland Zegilla and her two small children were living with her mother in mid-1997 following a separation from her husband. On Saturday evening, July 26, 1997, she told her mother that she was “going to go out for awhile,” and then she drove to the Top of the Mountain Lounge in [*3] Jamestown, Tennessee. After the lounge closed at midnight, Ms. Zegilla and four companions 1 decided to drive to a nearby VFW club. When they arrived at the club, however, they discovered that it had closed earlier than usual. After a brief discussion in the club parking lot, the group decided to continue their drinking and talking in the parking lot of the Colditz Cove State Natural Area.

1 Ms. Zegilla’s companions at the Top of the Mountain Lounge were Chris Smith, Loretta Johnson, Edward Raines, and Larry King.

The Colditz Cove State Natural Area is a 165-acre Class II natural-scientific area in Fentress County owned by the State of Tennessee. It is heavily wooded and contains the 75-foot Northrup Falls and a scenic gorge with interesting rock formations. 2 The area has been designated by statute as “worthy of perpetual preservation,” 3 and accordingly, improvements to the area are limited to foot trails, foot bridges, and primitive campgrounds 4 and “facilities as may be reasonably necessary . . .for [*4] the safe and proper management and protection of the area.” 5 In addition to a parking lot, the State had erected several signs and a gate and had constructed a 1.5 mile foot trail along the bluff overlooking Northrup Falls, as well as a scenic overlook. The State had not installed lights in the parking lot or along the foot trail.

2 Tenn. Code Ann. § 11-14-108(b)(2)(F) (Supp. 2003).

3 Tenn. Code Ann. § 11-14-105(2) (1999).

4 Tenn. Code Ann. § 11-14-106(a)(1)(B) (1999).

5 Tenn. Code Ann. § 11-14-106(a)(2).

All of the group except Mr. Raines had been drinking throughout the evening, and they continued drinking in the parking lot because Messrs. Smith and King had brought along a cooler of beer purchased earlier in the evening at Midway Qwick Stop. After talking for several minutes, the group decided to walk down the foot trail toward Northrup Falls in the pitch dark even though [*5] three of them, including Ms. Zegilla, had never been to Colditz Cove before. The only illumination they had was Mr. King’s flashlight.

When the group reached a fork in the trail, Mr. Raines and Ms. Johnson decided to walk no further and sat near a trash container to talk and drink. Ms. Zegilla and Messrs. Smith and King kept walking along the trail toward Northrup Falls. After they stopped to drink and talk, Mr. King asked Mr. Smith to shine the flashlight into the bushes to enable him to find a place to urinate. Mr. King walked into the bushes and, on his return, he fell over the bluff into the gorge below.

Mr. Smith yelled, “Larry has fallen off,” and called to Mr. Raines for assistance. Mr. Raines made his way down the trail to Mr. Smith and Ms. Zegilla. After they all called out to Mr. King to no avail, Mr. Raines decided to go for help and took the flashlight to help make his way back up the foot path to the parking lot. Ms. Zegilla and Mr. Smith, now joined by Ms. Johnson, continued to call for Mr. King. Mr. Smith decided to start a fire with his shirt to make some light. After his shirt went out, Ms. Zegilla somehow fell over the bluff. The rescue workers who arrived at the [*6] scene at approximately 1:30 a.m. on Sunday, July 27, 1997, found the lifeless bodies of both Mr. King and Ms. Zegilla in the water at the bottom of the falls. An autopsy revealed that Ms. Zegilla’s blood alcohol level was .18%.

On July 23, 1998, Evelean Morgan, Ms. Zegilla’s mother and her personal representative, filed a claim for $ 500,000 with the Tennessee Claims Commission asserting that the State had violated Tenn. Code Ann. § 9-8-307(a)(1)(C) (Supp. 2003) by negligently creating or maintaining a dangerous condition at Colditz Cove State Natural Area. 6 The State moved to dismiss the claim on the ground that it was shielded from liability by the recreational use statute [Tenn. Code Ann. §§ 70-7-101, -105 (1995)]. After the claims commissioner denied its motion, the State filed an answer denying Ms. Morgan’s negligence claims. The State asserted, as affirmative defenses, (1) that Tenn. Code Ann. § 70-7-102 shielded it from liability, (2) that it had no actual or constructive notice of a dangerous condition at Colditz Cove State Natural Area and that it was not reasonably foreseeable that intoxicated [*7] persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and (3) that Ms. Zegilla’s own negligence “contributed in excess of 50% to the cause of her death.”

6 Ms. Morgan also filed a civil damage action in the Circuit Court for Fentress County against Ms. Johnson, Messrs. Smith and Raines, and the estate of Mr. King.

In February 2002, following lengthy and somewhat contentious discovery, the State moved for a summary judgment on two grounds – Tenn. Code Ann. § 70-7-102 and its assertion that Ms. Zegilla’s “negligence was equal to or greater than [the] negligence of the State, if any.” 7 In April 2002, Ms. Morgan responded by asserting that the State was not entitled to a judgment on either ground because the State was grossly negligent and because its negligence was greater than Ms. Zegilla’s. The claims commissioner held a hearing on the State’s motion for summary judgment after conducting his own personal inspection of [*8] the Colditz Cove State Natural Area without the lawyers or parties present. On June 5, 2002, the commissioner filed an order granting the State’s motion for summary judgment. While the commissioner declined to base his decision on Tenn. Code Ann. § 70-7-102, he determined that the undisputed evidence demonstrated as a matter of law that Ms. Morgan had not shown that she could prove notice and foreseeability as required by Tenn. Code Ann. § 9-8-307(a)(1)(C) and that Ms. Zegilla was “preponderantly negligent in her own death.” 8 The commissioner later denied Ms. Morgan’s request for a hearing before the entire claims commission. Ms. Morgan has appealed.

7 The State based the latter assertion on what it called the “step in the dark” rule, i.e., that stepping into an unfamiliar dark area constitutes the proximate cause of injuries sustained by falling down stairs hidden in the darkness. Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994); Goodman v. Memphis Park Comm’n, 851 S.W.2d 165, 171 (Tenn. Ct. App. 1992).

[*9]

8 We construe this finding to be that Ms. Zegilla’s fault exceeded the fault of the State, if any. The claims commissioner stated later in its order that “the sole proximate cause of Ms. Zegilla’s death was her own actions.”

II.

THE STANDARD OF REVIEW

The standards for reviewing summary judgments on appeal are well-settled. [HN1] Summary judgments are proper in virtually any civil case that can be resolved on the basis of legal issues alone. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). They are not, however, appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be granted only when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion – that the party seeking the summary judgment is entitled to a judgment as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002); [*10] Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001).

[HN2] The party seeking a summary judgment bears the burden of demonstrating that no genuine dispute of material fact exists and that it is entitled to a judgment as a matter of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998). To be entitled to a judgment as a matter of law, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving party’s claim. Byrd v. Hall, 847 S.W.2d at 215 n. 5; Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).

[HN3] Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56’s requirements, the non-moving party must demonstrate how these requirements have not been satisfied. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Mere conclusory generalizations will not suffice. Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The non-moving party must convince the [*11] trial court that there are sufficient factual disputes to warrant a trial (1) by pointing to evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) by rehabilitating evidence challenged by the moving party, (3) by producing additional evidence that creates a material factual dispute, or (4) by submitting an affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for discovery. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d at 215 n. 6. A non-moving party who fails to carry its burden faces summary dismissal of the challenged claim because, as our courts have repeatedly observed, the “failure of proof concerning an essential element of the cause of action necessarily renders all other facts immaterial.” Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993).

[HN4] A summary judgment is not appropriate when a case’s determinative facts are in dispute. However, for a question of fact to exist, reasonable minds must be able to differ over whether some alleged occurrence or event did or did not happen. Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); [*12] Harrison v. Southern Ry. Co., 31 Tenn. App. 377, 387, 215 S.W.2d 31, 35 (1948). If reasonable minds could justifiably reach different conclusions based on the evidence at hand, then a genuine question of fact exists. Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993). If, on the other hand, the evidence and the inferences to be reasonably drawn from the evidence would permit a reasonable person to reach only one conclusion, then there are no material factual disputes and the question can be disposed of as a matter of law. Godfrey v. Ruiz, 90 S.W.3d at 695; Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 91 (Tenn. 1999); Beaudreau v. General Motors Acceptance Corp., 118 S.W.3d 700, 703 (Tenn. Ct. App. 2003).

[HN5] Summary judgments enjoy no presumption of correctness on appeal. BellSouth Advertising & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn. 2001). Accordingly, appellate courts must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. [*13] Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997). We must consider the evidence in the light most favorable to the non-moving party, and we must resolve all inferences in the non-moving party’s favor. Godfrey v. Ruiz, 90 S.W.3d at 695; Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001). When reviewing the evidence, we must determine first whether factual disputes exist. If a factual dispute exists, we must then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

III.

THE APPLICATION OF TENN. CODE ANN. § 70-7-102

The State’s defense predicated on Tenn. Code Ann. § 70-7-102 figures prominently in this appeal even though the claims commissioner expressly declined to base his decision on this defense. 9 For her part, Ms. Morgan asserts that the commissioner erred by “failing and refusing” [*14] to rule on this defense. While the State does not specifically assert that the commissioner erred by not addressing this defense, 10 it asserts that it did not owe a duty to Ms. Zegilla by virtue of Tenn. Code Ann. § 70- 7-102. Accordingly, we have decided to address the applicability of Tenn. Code Ann. § 70-7-102 to this case head on.

9 The commissioner’s cryptic rulings regarding Tenn. Code Ann. § 70-7-102 are not easy to reconcile. He stated:

The Commission renders its ruling without considering the applicability of the state Recreational Use Immunity Statute. The individuals involved in this incident were using the State property for recreation, thus the Recreational Use Statute applies.

As for gross negligence, if the facts involved the Recreational Use statute alone, in absence of the other three factors discussed heretofore, then this claim should probably proceed to trial. Although the Commission believes there was not any gross negligence, it does not base its conclusion on the Recreational Use Immunity statute.

Because the commissioner stated twice that he was not basing his decision on Tenn. Code Ann. § 70-7-102, we will take him at his word.

[*15]

10 The State could have raised this issue pursuant to Tenn. R. App. P. 13(a).

A.

At common law, property owners could be held liable for injuries to persons who were using their property, with or without their permission, for recreational purposes. Beginning in the 1950s, state legislatures began to enact statutes to limit property owners’ liability when persons were using their property for recreational purposes. 11 The Tennessee General Assembly enacted one of these statutes in 1963. 12 As originally enacted, the statute was applicable only to private landowners and excluded from its coverage the “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”

11 James C. Becker, Landowner or Occupier Liability for Personal Injuries and Recreational Use Statutes: How Effective Is the Protection?, 24 Ind. L. Rev. 1587, 1587-88 (1991).

12 Act of Mar. 15, 1963, ch. 177, 1963 Tenn. Pub. Acts 784, codified at Tenn. Code Ann. §§ 70-7-101, -105 (1995).

[*16] In 1987, the Tennessee General Assembly amended the recreational use statute in two significant ways that are directly applicable to this case. First, it amended the statute to explicitly apply to real property owned by governmental entities. 13 Second, it broadened the exemption to cover “gross negligence, willful or wanton conduct.” 14

13 Act of May 7, 1987, ch. 448, § 8, 1987 Tenn. Pub. Acts 897, 899, codified at Tenn. Code Ann. § 70-7-101(2)(B).

14 Act of May 7, 1987, ch. 448, § 5, 1987 Tenn. Pub. Acts 897, 898, codified at Tenn. Code Ann. § 70-7-104(1).

The operation of the recreational use statutes is straightforward. Tenn. Code Ann. § 70-7-102 [HN6] is an affirmative defense available to persons who fit within the definition of “landowner” in Tenn. Code Ann. § 70-7-101(2). Parent v. State, 991 S.W.2d 240, 242 (Tenn. 1999); Bishop v. Beckner, 109 S.W.3d 725, 728 (Tenn. Ct. App. 2002). [*17] Landowners may assert a Tenn. Code Ann. § 70-7-102 defense if they prove that the injured person was engaged in a recreational activity 15 at the time of the injury. Plaintiffs may defeat this affirmative defense in essentially three ways: (1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104. The exceptions in Tenn. Code Ann. § 70-7-104 do not create new independent causes of action against the landowner. Rather, they enable a plaintiff to pursue its negligence claim by negating a landowner’s Tenn. Code Ann. § 70-7-102 defense. Parent v. State, 991 S.W.2d at 242-43.

15 The applicable recreational activities are identified in Tenn. Code Ann. §§ 70-7-102, -103.

[HN7] Applying Tenn. Code Ann. §§ 70-7-101 [*18] , -105 to a particular case requires a three-step analysis. First, the court must determine whether the party asserting the Tenn. Code Ann. § 70-7-102 defense is a landowner. Second, the court must determine whether the activity in which the injured party was engaged at the time of the injury is a recreational activity. Third, the court must determine whether any of the exceptions in Tenn. Code Ann. § 70-7-104 are applicable to the case. See Parent v. State, 991 S.W.2d at 243. If the activity is recreational and no Tenn. Code Ann. § 70-7-104 exceptions apply, the landowner is shielded from liability by Tenn. Code Ann. § 70-7-102. If, however, the activity is recreational, but one of the exceptions applies, the landowner may be liable.

B.

Based on the undisputed facts, there can be no dispute (1) that the State, as a governmental entity, is a “landowner” under Tenn. Code Ann. § 70-7-101(2)(B), (2) that Ms. Zegilla was engaged in a recreational activity because she was “hiking” or “sightseeing” when she fell to her death, [*19] and (3) that the land on which Ms. Zegilla was killed was not exempt from coverage of the statute. 16 Thus, the only remaining question with regard to the application of the recreational use statute is whether one of Tenn. Code Ann. § 70-7-104’s exceptions applies to this case. Ms. Morgan insists that the exception for gross negligence in Tenn. Code Ann. § 70-7-104(1) applies.

16 Ms. Morgan argued before the claims commissioner that improvements in state natural areas and parks were somehow exempt from Tenn. Code Ann. §§ 70-7-101, -105. However, both the Tennessee Supreme Court and this court have recognized that [HN8] the recreational use statute may apply to state parks and wildlife management areas. Parent v. State, 991 S.W.2d at 241; Rewcastle v. State, 2002 Tenn. App. LEXIS 943, No. E2002-00506-COA-R3-CV, 2002 WL 31926848, at *1 (Tenn. Ct. App. Dec. 31, 2002) (No Tenn. R. App. P. 11 application filed).

[HN9] Gross negligence [*20] is negligent conduct reflecting a reckless disregard for the safety of others. Davidson v. Power Bd., 686 S.W.2d 581, 586 (Tenn. Ct. App. 1984); Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972). It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. 1 DAN B. DOBBS, THE LAW OF TORTS § 147, at 351 (2001). It differs from ordinary negligence only in degree, not in kind. W. PAGE KEETON, PROSSER & KEETON ON THE LAW OF TORTS § 34, at 212 (5th ed. 1984). Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct. Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 129-30, 178 S.W.2d 756, 757 (1944); Bennett v. Woodard, 60 Tenn. App. 20, 31-32, 444 S.W.2d 89, 94 (1969).

[HN10] Determining whether particular conduct rises to the level of gross negligence is ordinarily a question of fact. 3 STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 10:05, at 368 (1986) (“SPEISER”); see also Adams v. Roark, 686 S.W.2d 73, 76 (Tenn. 1985) (gross negligence [*21] determined from the facts alleged in the complaint). However, it may be decided as a matter of law when the material facts are not in dispute and when these facts, and the conclusions reasonably drawn from them, would permit a reasonable person to reach only one conclusion. Leatherwood v. Wadley, 121 S.W.3d 682, ___, 2003 WL 327517, at *8-9 (Tenn. Ct. App. 2003) (affirming summary judgment dismissing gross negligence claim); Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990) (affirming summary judgment dismissing gross negligence claim); Fellows v. Sexton, 46 Tenn. App. 274, 282, 327 S.W.2d 391, 394 (1959) (granting a judgment notwithstanding the verdict on a gross negligence claim).

We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area. The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, [*22] while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary at a natural area such as Colditz Cove. Accordingly, we have determined that the record, as a matter of law, supports the claims commissioner’s conclusion that “there was not any gross negligence.” 17 The State was simply not acting recklessly with disregard of the safety of persons entering the natural area.

17 Ms. Morgan asserts in her brief that “the State of Tennessee knew that at Northrop [sic] Falls . . . there was a cliff that eroded into a commonly used path which suddenly dropped at a ninety degree angle approximately one hundred feet and that it posed a deadly, dangerous condition.” This is the only assertion in her papers that approaches an allegation of gross negligence. We have searched the record for substantiation of this claim and have found none. There is no evidence that any of the trails in Colditz Cove had dangerously eroded on July 26, 1997. There is no evidence that the State had actual or constructive notice of any dangerous erosion along any of the trails in the natural area. There is likewise no evidence that either Ms. Zegilla or Mr. King fell to their deaths at a spot on the trail that had eroded.

[*23] Because the State was not grossly negligent, it was entitled to assert a defense predicated on Tenn. Code Ann. § 70-7-102. Therefore, we have concluded, based on the undisputed facts, that the recreational use statute shields the State from liability for Ms. Zegilla’s death and that the State was entitled to a summary judgment dismissing her claims on this ground alone.

IV.

THE STATE’S LIABILITY UNDER TENN. CODE ANN. § 9-8-307(a)(1)(C)

Despite our conclusion that the State has established an affirmative defense under Tenn. Code Ann. § 70-7-102 as a matter of law, we will also address Ms. Morgan’s assertion that the claims commissioner erred by concluding that she had failed to demonstrate that she would be able to prove that the State was liable for her daughter’s death under Tenn. Code Ann. § 9-8-307(a)(1)(C). We have concluded that the undisputed facts also support the commissioner’s conclusion that the State was entitled to a judgment as a matter of law because Ms. Morgan had not demonstrated that she would be able to prove the essential elements of her claim.

[*24] [HN11] The State is not the insurer of the safety of persons on its property. Byrd v. State, 905 S.W.2d 195, 197 (Tenn. Ct. App. 1995). It is, however, liable to these persons to the same extent that private owners and occupiers of land are liable, Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989), because Tenn. Code Ann. § 9-8-307(a)(1)(C) has imposed this common-law duty on the State. Parent v. State, 991 S.W.2d at 242. Tenn. Code Ann. § 9-8-307(a)(1)(C) provides that the State may be held monetarily liable for

Negligently created or maintained dangerous conditions on state controlled real property. The claimant under this subsection must establish the foreseeability of the risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures.

Based on this statute, the State, like a private landowner, has a duty to exercise reasonable care under the circumstances to prevent foreseeable injuries to persons on the premises. Eaton v. McLain, 891 S.W.2d at 593-94. This duty is [*25] grounded on the foreseeability of the risk involved. To recover, a claimant must prove that the injury was a reasonably foreseeable probability. Dobson v. State, 23 S.W.3d 324, 331 (Tenn. Ct. App. 1999).

Tenn. Code Ann. § 9-8-307(a)(1)(C) required Ms. Morgan to prove that Ms. Zegilla was injured in a manner that was reasonably foreseeable and that the State had actual or constructive notice of the dangerous condition that caused Ms. Zegilla’s death in time to take “appropriate measures.” The claims commissioner properly concluded that she failed on both counts.

The record contains no factual, legal, or policy basis for concluding that the State should have foreseen that intoxicated persons who were unfamiliar with the Colditz Cove State Natural Area would hike down the trail to Northrup Falls in the middle of the night without adequate illumination.

Likewise, the record contains no evidence meeting the standards in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 that the improvements to Colditz Cove are either inherently dangerous 18 or, as we have already pointed out, that the State had actual or constructive notice of any particular [*26] dangerous condition in the natural area that caused Ms. Zegilla’s death.

18 Ms. Morgan’s lawyer asserted in the proceeding below that he had consulted an architect who “felt” that the Colditz Cove State Natural Area was “unduly dangerous” and that “the majority of the defects were certainly foreseeable and could have been rectified at a relatively modest capital investment.” While the record contains an unauthenticated letter from this architect summarizing his impressions of the improvements in the natural area, it does not contain the architect’s affidavit or deposition stating these conclusions. The architect’s letter does not meet the requirements in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 for evidentiary materials that may be used to support or oppose a motion for summary judgment.

V.

COMPARISON OF MS. ZEGILLA’S FAULT WITH THE STATE’S FAULT

As a final issue, Ms. Morgan asserts that the claims commissioner erred by determining that Ms. Zegilla’s fault exceeded the State’s fault. [*27] She bases her argument on the assertion that the State’s “gross negligence” should somehow count for more in a comparative fault analysis. We have determined that this argument has no merit for two reasons. First, we have already concluded that the undisputed facts demonstrate, as a matter of law, that the State was not grossly negligent. Second, even if the States could somehow be considered grossly negligent, its fault would still be compared with Ms. Zegilla’s fault. Conroy v. City of Dickson, 49 S.W.3d 868, 873 (Tenn. Ct. App. 2001). A majority of the courts in comparative fault jurisdictions permit gross negligence to be compared to ordinary negligence. 3 SPEISER, § 13:25, at 764; 1 ARTHUR BEST, COMPARATIVE NEGLIGENCE LAW & PRACTICE § 4.40[3] (1999); Restatement (Third) of Torts: Apportionment of Fault § 7 cmt. b (1999).

[HN12] The allocation of fault is ordinarily a question of fact for the jury or the trial court sitting without a jury. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000). The task of allocating fault should be taken from the fact-finder only when it can be determined beyond question (or alternatively, when reasonable [*28] minds cannot differ) that the plaintiff’s fault is equal to or greater than the defendant’s. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91-92 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d at 589; Kim v. Boucher, 55 S.W.3d 551, 556-57 (Tenn. Ct. App. 2001). The procedural avenues for obtaining a decision that the plaintiff’s fault exceeds the defendant’s as a matter of law are governed by the Tennessee Rules of Civil Procedure. The question may be raised using (1) a motion for summary judgment under Tenn. R. Civ. P. 56, (2) a motion for directed verdict governed by Tenn. R. Civ. P. 50.01, and (3) a post-trial motion for a judgment as a matter of law governed by Tenn. R. Civ. P. 50.02. Henley v. Amacher, 2002 Tenn. App. LEXIS 72, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *6 (Tenn. Ct. App. Jan. 28, 2002) (No Tenn. R. App. P. 11 application filed).

Ms. Zegilla’s voluntary intoxication on the evening of July 26, 1997 does not relieve her from the responsibility of her own negligence. Kirksey v. Overton Pub, Inc., 739 S.W.2d 230, 235 (Tenn. 1987); Schwartz v. Johnson, 152 Tenn. 586, 592, 280 S.W. 32, 33 (1926). [*29] She was required to use reasonable care under the circumstances, and her conduct must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person. Louisville & Nashville R.R. v. Hall, 5 Tenn. Civ. App. 491, 502 (1915). Accordingly, if her conduct while intoxicated was a proximate cause of her death, it may be compared with the fault of the other parties whose fault was also a proximate cause. Worley v. State, 1995 Tenn. App. LEXIS 755, No. 02A01-9312-BC-00267, 1995 WL 702792, at *6 (Tenn. Ct. App. Nov. 28, 1995) (No Tenn. R. App. P. 11 application filed).

It cannot be reasonably disputed that Ms. Zegilla was intoxicated when she arrived at Colditz Cove State Natural Area after midnight on July 26, 1997. Even though she had never visited the natural area before, she decided to venture into a wooded area down an unfamiliar, rough foot path in the dark. After one of her companions fell to his death, she continued to walk around in the darkness even though she must have known that danger was close at hand. As tragic as her death is, the only conclusion that reasonable persons can draw from these facts is that her fault [*30] far exceeded any fault that may reasonably be attributed to the State. Accordingly, the claims commissioner properly concluded the State was not liable to Ms. Zegilla’s estate because her fault exceeded any fault that could be attributed to the State.

VI.

We affirm the order dismissing the Tenn. Code Ann. § 9-8-307(a)(1)(C) claim of Ms. Zegilla’s estate against the State and remand the case to the Tennessee Claims Commission for whatever further proceedings may be required. We tax the costs of this appeal to Evelean Morgan for which execution, if necessary, may issue.


Michigan’s state parks have a camp green program encouraging campers to be eco and energy efficient while camping.

You’re in a motorhome (first problem) and leave with the windows open and the air conditioning on in a state park?

The “Go Green” plan has six steps.

1. Be smart about air conditioning
2. Turn off the lights
3. Conserve water
4. Properly dispose of gray water, sewage
5. Don’t burn trash
6. Recycle

It makes sense; we should not leave our eco consciousness at home just because we are outdoors. (We seem to leave our common sense at home…..)

See 5 things you should know about camping green

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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North Dakota decision allows a parent to sign away a minor’s right to sue.

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 

This case sets forth the North Dakota Supreme Court decision concerning a parent’s right to sign away a minor’s right to sue. Here the parent had enrolled their minor child in a park district program called Blast. The minor was at the Blast program but riding someone else’s bicycle, which was not part of the program, when he was injured. The North Dakota Supreme Court held the release was meant to cover this incident as well as Blast incidents and upheld the release against the minor signed by the mother.

In McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 the minor was injured riding a bicycle that was not part of the Park District program he was enrolled in. The plaintiff’s mother sued the district for his injuries arguing negligent supervision of her child. The district court granted the park district’s motion for summary judgment and the North Dakota Supreme Court upheld the lower court’s decision on appeal.

North Dakota has an interesting court system. The district courts are the first layer or the trial courts. The next layer and the top layer is the Supreme Court. There is a middle layer, the Appellate court; however the Appellate court only hears cases that are assigned to it by the Supreme Court. So you may appeal a decision from the district court and it may be heard by the Supreme Court as in this case, or the Supreme Court may assign it to the Appellate court to be heard.

The release, in this case, was marginal in the view of most courts.

I recognize and acknowledge that there are certain risks of physical injury to participant in this program and I agree to assume the full risk of any such injuries, damages or loss regardless of severity which I or my child/ward may sustain as a result of participating in any activities associated with this program. I waive and relinquish all claims that I, my insurer, or my child/ward may have against the Park District and its officers, servants, and employees from any and all claims from injuries, damages or loss which I or my child/ward may have or which may accrue to me or my child/ward on account of my participation of my child/ward in this program.

As you can see it did not contain the word negligence. However this was sufficient for the court to be qualified as a release under North Dakota law. The Supreme Court interpreted this paragraph to include an assumption of risk clause; “I agree to assume the full risk of any such injuries, damages or loss regardless of severity,” and a negligence clause; “I waive and relinquish all claims.”

The court also set forth the requirements under North Dakota case law for validating a release. Releases are not favored under the law. Releases are valid if there is “clear and unambiguous language evidencing an intent to extinguish liability.” “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.” Any ambiguity in the contract is to be determined by the court as it is a question of law. The court found the language of the release was not limited to only the Blast activities, but to any activity that might occur while the minor was at the Blast program.

In a footnote the court brought up N.D.C.C. § 9-08-02. This statute states:

N.D.C.C. § 9-08-02. Contracts against the policy of the law.
All contracts which have for their object, directly or indirectly, the exempting of anyone from responsibility for that person’s own fraud or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.

The court stated that this statute only precludes intentional or willful conduct. The statute does not preclude a release for negligent conduct.

So?

This decision is very good for business operating in North Dakota in specifically allowing a parent to sign away a minor’s right to sue. It also allows those releases in general to be written in a fairly lose manner. That does not mean that the editors of the law review are encouraging releases in North Dakota to be written loosely. On the contrary, whenever a release is written it should be done by an attorney and written to cover all possible parties and claims and should include the word negligence so that the parties clearly understand what they are giving up.

What do you think? Leave a comment.

 
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: http://www.recreation-law.com

Keywords: #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #cycling, #minor, #release, #parent, #youth program #park district, #ND, #North Dakota, #Bismarck, #Bismarck Park District,
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Colorado Statewide Comprehensive Outdoor Recreation Plan Completed


Colorado State Parks is proud to announce the completion of the 2008-2012 Statewide Comprehensive Outdoor Recreation Plan (SCORP)! Included in the plan is a wealth of information on Colorado‘s
outdoor recreation trends, needs and issues, as well as a strategic planning framework to help address these needs and issues. The SCORP Executive Summary can be accessed at www.coloradoscorp.org or http://parks.state.co.us/Trails/LWCF/SCORPplan/. The full document will be uploaded to this website by late November 2008.

The SCORP is a requirement of the Land and Water Conservation (LWCF) Program and is managed by the National Park Service (NPS). Each year, the NPS distributes stateside grants that are appropriated annually by the United States Congress. The Colorado State Trails Program, within Colorado State Parks, manages Colorado’s LWCF program. If you have any questions or would like to request hard copies of the executive summary or completed plan, please send your contact information to Scott Babcock at scott.babcock@state.co.us or call 303.866.3203 x4306.



Dean Winstanley,
Director


Colorado State Parks

1313 Sherman Street, #618

Denver, CO 80203

Phone: (303) 866-2884