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Texas Campground not liable for wind, rain and rising rivers.

Campground on river sued when river rose, flooding the campground and washing plaintiff’s downstream.

Walker v. UME, Inc. d/b/a Camp Huaco Springs, 2016 Tex. App. LEXIS 5934

State: Texas, Court of Appeals of Texas, Third District, Austin

Plaintiff: Cynthia Walker, Individually and on Behalf of the Estate of Norman Walker; Stephen Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson

Defendant: UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’ River Rides; William George Rivers; and Richard Duane Rivers

Plaintiff Claims: negligence, premises liability, and gross negligence

Defendant Defenses: No Duty and Texas Recreational Use Statute

Holding: For the defendants

Year: 2016

Facts

Two couples took their RV’s to the defendant’s campground for the weekend. The first day the plaintiff’s took a canoe trip past the campground and took some cave tours. It was not raining when they went to bed. Around 6:00 AM, the surviving plaintiff woke up to a rainstorm and their RV’s floating.

The RV’s floated down the river. One plaintiff did not survive. The surviving plaintiffs sued the campground, campgrounds alleged owner and several employees. The plaintiff’s claims were based on alleging negligence, premise’s liability, and gross negligence. Overall, their claims were based on numerous claims that the campground had a duty to warn them of the flood.

Appellants asserted that appellees knew that the campground was prone to flooding and failed: to warn appellants of that fact; to warn of the approaching storm; to prepare a plan for flood awareness, communication, and evacuation; to have and use speakers or sirens to warn of flooding; to employ someone to monitor the weather and warn and evacuate guests; to have an employee on site during severe weather; and to make reasonable modifications, have emergency communications, or educate guests about severe-weather risks.

The defendants filed numerous motions for summary judgment arguing they were protected by the Texas Recreational Use Statute, and they owed no duty to the plaintiffs. The trial court dismissed the plaintiff’s claims without comment. The appeal followed.

Analysis: making sense of the law based on these facts.

The appellate court started its analysis by stating the trial court was right and there was no duty owed to the plaintiffs.

Even if we assume that the recreational use statute does not apply, we hold, as a matter of law, that appellees did not owe the Walkers and Johnsons a duty to warn of or ensure against rising river waters.

Texas Premises Liability Act requires landowners with liability for actual or constructive notice of a condition that poses an unreasonable risk of harm and did nothing to reduce or eliminate the risk.

When an injured invitee asserts a premises-liability claim, she must show that the owner or occupier had actual or constructive knowledge about a condition that posed an unreasonable risk of harm and did not exercise reasonable care to reduce or eliminate the risk and that such failure proximately caused her injury.

Rain swollen rivers were described by the court as a condition that came to the land, rather than a condition on the land. Even so, in Texas, rain, mud and ice are natural conditions that do not create an unreasonable risk of harm.

Regardless of that fact, Texas courts have consistently held as a matter of law that naturally occurring or accumulating conditions such as rain, mud, and ice do not create conditions posing an unreasonable risk of harm.

The basis for those rulings is that rain, dirt, and mud are naturally occurring conditions beyond a landowner’s control. (“rain is beyond the control of landowners” and “accidents involving naturally accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners”). Requiring a landowner to protect an invitee from precipitation or other acts of nature would place an enormous burden on the landowner.

Additionally, the court held the plaintiffs were aware of the issues because they could see the river from their campground and had canoed past the campground earlier in the day.

Further, an invitee is or should be “at least as aware” as the landowner of visible conditions that have “accumulated naturally outdoors” and thus “will often be in a better position to take immediate pre-cautions against injury.

Landowners in Texas cannot be insurers of people on the land for those acts which the landowner has no control, those things we used to call “acts of God.”

Texas courts have repeatedly observed that a landowner “‘is not an insurer'” of an invitee’s safety and generally “has no duty to warn of hazards that are open and obvious or known to the invitee.” Texas courts have held in various contexts that flooding due to heavy rains is an open and obvious hazard. “[T]he owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake.

A landowner can be guilty of gross negligence by creating a condition that a recreational user would not reasonably expect to encounter. However, there was no gross negligence nor negligence because the harm was not created by the landowner.

We see no useful distinction to be drawn between ice and mud, which are natural conditions caused by rain and freezing temperatures, and rising river waters, caused by a natural weather event over which appellees could exercise no control. The June 2010 flood was not a condition inherent in or on the land in question. Instead, the flooding was a condition that came to the campground as the adjacent river, the same river that made the land an attractive place to camp, rose due to heavy rains.

The court then summed up its ruling.

We hold that as a matter of law appellees had no duty to warn the Walkers and Johnsons of the possibility that the river, they were camping beside might rise in the event of heavy rain, posing a risk to the campground.

Because appellees did not owe a duty to warn of or attempt to make the campground safe against flooding of the adjacent river due to torrential rain, the trial court properly granted summary judgment in their favor. We affirm the trial court’s orders.

So Now What?

This is a good ruling. Acts of God have always been outside the control, by their definition and act, of man. Consequently, you should not be able to hold someone liable for such an act.

This may not be true for all situations, or in all states, but for Texas campground owners and landowners don’t need to worry about the rain.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,

 

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Walker v. UME, Inc. d/b/a Camp Huaco Springs, 2016 Tex. App. LEXIS 5934

Walker v. UME, Inc. d/b/a Camp Huaco Springs, 2016 Tex. App. LEXIS 5934

Cynthia Walker, Individually and on Behalf of the Estate of Norman Walker; Stephen Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson, Appellants v. UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’ River Rides; William George Rivers; and Richard Duane Rivers, Appellees

  1. 03-15-00271-CV

Court of Appeals of Texas, Third District, Austin

2016 Tex. App. LEXIS 5934

June 3, 2016, Filed

PRIOR HISTORY:  [*1] FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT. NO. C2012-0796D, HONORABLE DIB WALDRIP, JUDGE PRESIDING.

DISPOSITION: Affirmed.

JUDGES: Before Justices Puryear, Goodwin, and Field.

OPINION BY: David Puryear

OPINION

MEMORANDUM OPINION

Appellants Cynthia Walker, Individually and on Behalf of the Estate of Norman Walker; Stephen Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson1 filed suit against appellees UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’ River Rides; William George Rivers; and Richard Duane Rivers for injuries sustained when the Guadalupe River overran its banks during a flash flood in June 2010.2 The trial court granted summary judgment in favor of appellees. We affirm the trial court’s orders granting summary judgment.

1 Cynthia Walker was married to Norman Walker, and Stephen Walker, Stephanie Walker Hatton, and Jordan Walker are their children. Caren Johnson is married to Terry Johnson, Cynthia’s brother. Cynthia, Norman, Caren, and Terry were camping together at Camp Huaco Springs when they were caught in the flood. Norman died, while Cynthia, Terry, and Caren were injured. Caren and Cynthia sued for their own injuries. Cynthia also sued as a representative of [*2]  Norman’s estate and, along with her children, as a wrongful death beneficiary.
2 UME, Inc. operates Camp Huaco Springs, WWGAF operates Rockin ‘R’ River Rides, a river-tubing and recreation outfitter, and William and Richard Rivers own the two businesses.

Factual Summary

In June 2010, Cynthia and Norman Walker and Terry and Caren Johnson went to Camp Huaco Springs in their RV campers for a weekend of camping and river rafting. When they arrived at the campground, they were assigned two parking spaces. The Walkers and the Johnsons parked their campers as directed. On Saturday, the Walkers and the Johnsons took a canoe trip on the river and went to tour nearby caverns. When they returned to the campsite and went to bed, it was not raining. They had not heard any weather reports and did not know heavy rain was forecast for that night. Cynthia woke at about 6:00 a.m. to thunder and lightning. She looked out the window and saw Terry was screaming that they had to leave. Cynthia looked down and noticed that the river had risen to surround the two campers, causing them to begin floating. The Walkers and Johnsons were all swept downstream in the flood. Norman died in the flood. Cynthia, Terry, and [*3]  Caren were rescued miles downstream from the campsite and all required medical attention.

Appellants filed suit alleging negligence, premises liability, and gross negligence. They asserted that WWGAF was liable because it was a joint enterprise with UME and that the Rivers brothers were liable under a theory of alter ego. Appellants asserted that appellees knew that the campground was prone to flooding and failed: to warn appellants of that fact; to warn of the approaching storm; to prepare a plan for flood awareness, communication, and evacuation; to have and use speakers or sirens to warn of flooding; to employ someone to monitor the weather and warn and evacuate guests; to have an employee on site during severe weather; and to make reasonable modifications, have emergency communications, or educate guests about severe-weather risks.

UME and the Rivers brothers filed a traditional and no-evidence motion for summary judgment, asserting that the Texas Recreational Use Statute3 limited appellants to asserting a gross-negligence claim and that appellants could not show various elements of gross negligence; that there was no evidence that they had a duty to warn that the campground was in [*4]  a flood zone, to warn that severe weather was approaching, or to plan and prepare for flooding; that there was no evidence they had a duty to have and use speakers or sirens to warn guests; and that there was no evidence that appellants’ injuries were caused by any negligence on the part of UME or the Rivers brothers. UME and the Rivers brothers filed a separate motion for traditional and no-evidence summary judgment addressing appellants’ theories of alter ego and joint enterprise. WWGAF filed its own motion for summary judgment, asserting that it did not own or operate Camp Huaco, that it did not owe a duty to the Walkers and the Johnsons, and that it was a separate entity from Camp Huaco and could not be held liable under theories of joint enterprise or vicarious liability. The trial court signed several orders granting appellees’ motions for summary judgment without specifying the grounds.

3 See Tex. Civ. Prac. & Rem. Code § 75.002 (owner, lessee, or occupant of agricultural land who invites another onto premises for recreation owes invitee same duty that would be owed to trespasser and only owes duty not to injure invitee wilfully, wantonly, or through gross negligence); see generally id. §§ 75.001-.007 (chapter 75, titled [*5]  “Limitation of Landowners’ Liability”).

Discussion

The first question to be addressed, the answer to which is dispositive of this appeal, is whether appellees owed any duty to the Walkers and the Johnsons. Even if we assume that the recreational use statute does not apply, we hold, as a matter of law, that appellees did not owe the Walkers and Johnsons a duty to warn of or ensure against rising river waters. Without such a duty, appellants’ premises-liability claims must fail.4

4 Although appellants alleged both negligence and premises-defect claims, “negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct bythe owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010); see Scurlock v. Pennell, 177 S.W.3d 222, 224-25 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (citing Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998)) (“Recovery for a negligent activity requires that a person have been injured by the activity itself, rather than by a condition created by the activity; in contrast, recovery for premises liability depends upon a failure to use ordinary care to reduce or to eliminate an unreasonable risk of harm created by a premises condition about which the owner or occupier [of [*6]  land] knows or, in the exercise of ordinary care, should know.”). The claims raised by appellants clearly alleged that appellees had failed to take various measures that would have made the campsite safe; they did not allege “contemporaneous conduct . . . that caused the injur[ies].” See Smith, 307 S.W.3d at 776. We therefore consider appellants’ claims under a theory of premises liability. Regardless of the theory under which they are analyzed, appellants’ claims would fail because, as we explain below, appellees did not owe the duty that appellants claim was breached. See General Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008) (“Like any other negligence action, a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty.”).

When an injured invitee asserts a premises-liability claim, she must show that the owner or occupier had actual or constructive knowledge of a condition that posed an unreasonable risk of harm and did not exercise reasonable care to reduce or eliminate the risk and that such failure proximately caused her injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). We initially note that appellants do not assert that a condition on the premises caused the tragedy and thus was the basis for liability. Instead, the injuries suffered by appellants were caused by a rain-swollen [*7]  river that inundated the campground, a condition that came to the premises.

Regardless of that fact, Texas courts have consistently held as a matter of law that naturally occurring or accumulating conditions such as rain, mud, and ice do not create conditions posing an unreasonable risk of harm. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675-76 (Tex. 2004); see Scott & White Mem. Hosp. v. Fair, 310 S.W.3d 411, 412-14 (Tex. 2010) (“Because we find no reason to distinguish between the mud in M.O. Dental and the ice in this case, we hold that naturally occurring ice that accumulates without the assistance or involvement of unnatural contact is not an unreasonably dangerous condition sufficient to support a premises liability claim.”); Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 445 (Tex. App.–Eastland 2003, pet. denied) (landowner “does not have a duty to protect its invitees from conditions caused by a natural accumulation of frozen precipitation on its parking lot because such an accumulation does not constitute an unreasonably dangerous condition”).5 The basis for those rulings is that rain, dirt, and mud are naturally occurring conditions beyond a landowner’s control. See, e.g., M.O. Dental Lab, 139 S.W.3d at 676 (“rain is beyond the control of landowners” and “accidents involving naturally accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners”). Requiring a landowner to protect an invitee [*8]  from precipitation or other acts of nature would place an enormous burden on the landowner. See id.; see also Fair, 310 S.W.3d at 414 (requiring landowners “to guard against wintery conditions would inflict a heavy burden because of the limited resources landowners likely have on hand to combat occasional ice accumulations”).

5 See also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam) (in premises defect case under Texas Tort Claims Act, supreme court held that “[w]hen there is precipitation accompanied by near-freezing temperatures, . . . an icy bridge is neither unexpected nor unusual, but rather, entirely predictable [and] is something motorists can and should anticipate when the weather is conducive to such a condition”); Brownsville Navigation Dist. v. Izaguirre, 829 S.W.2d 159, 160 (Tex. 1992) (“Plain dirt which ordinarily becomes soft and muddy when wet is not a dangerous condition of property for which a landlord may be liable.”); Lee v. K&N Mgmt., Inc., No. 03-15-00243-CV, 2015 WL 8594163, at *3-4 (Tex. App.–Austin Dec. 11, 2015, no pet.) (mem. op.) (plant that extended over edge of flowerbed was not unreasonably dangerous condition; “The Texas Supreme Court has held that certain naturally occurring substances generally do not pose an unreasonable risk of harm. . . . Under the facts of this case, the plant, like mud and dirt, may have formed a condition that posed a risk of harm, [*9]  but on this record, we cannot conclude that it was an unreasonable risk of harm.”); City of Houston v. Cogburn, No. 01-11-00318-CV, 2014 WL 1778279, at *4 (Tex. App.–Houston [1st Dist.] May 1, 2014, no pet.) (mem. op.) (“as a matter of law, naturally occurring conditions that are open and obvious do not create an unreasonable risk of harm for purposes of premises liability”; tree roots over which plaintiff tripped were “open and obvious and were a naturally occurring condition”).

Further, an invitee is or should be “at least as aware” as the landowner of visible conditions that have “accumulated naturally outdoors” and thus “will often be in a better position to take immediate precautions against injury.” M.O. Dental Lab, 139 S.W.3d at 676. In other words, as the supreme court has explained:

When the condition is open and obvious or known to the invitee, however, the landowner is not in a better position to discover it. When invitees are aware of dangerous premises conditions–whether because the danger is obvious or because the landowner provided an adequate warning–the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks, which may include a decision not to accept the invitation to enter onto the landowner’s premises. [*10]  This is why the Court has typically characterized the landowner’s duty as a duty to make safe or warn of unreasonably dangerous conditions that are not open and obvious or otherwise known to the invitee

Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015) (citations omitted). Texas courts have repeatedly observed that a landowner “‘is not an insurer'” of an invitee’s safety and generally “has no duty to warn of hazards that are open and obvious or known to the invitee.” Id. at 203-04 (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010)). Texas courts have held in various contexts that flooding due to heavy rains is an open and obvious hazard. See, e.g., State v. Shumake, 199 S.W.3d 279, 288 (Tex. 2006) (“[T]he owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But a landowner can be liable for gross negligence in creating a condition that a recreational user would not reasonably expect to encounter on the property in the course of the permitted use.”); City of Austin v. Leggett, 257 S.W.3d 456, 475 (Tex. App.–Austin 2008, pet. denied) (flooded intersection was readily apparent and presented obstacle that would be open and obvious to ordinary motorists).

We see no useful distinction to be drawn between ice and mud, which are natural conditions caused by rain and freezing temperatures, and rising [*11]  river waters, caused by a natural weather event over which appellees could exercise no control. See Fair, 310 S.W.3d at 414. The June 2010 flood was not a condition inherent in or on the land in question. Instead, the flooding was a condition that came to the campground as the adjacent river, the same river that made the land an attractive place to camp, rose due to heavy rains. The Walkers and the Johnsons had gone canoeing on the river the day before the flooding occurred, and thus they were obviously aware of the river’s proximity to their campsite. This situation is indeed a tragic one, but it is not one for which appellees can be held to bear legal responsibility. We hold that as a matter of law appellees had no duty to warn the Walkers and Johnsons of the possibility that the river they were camping beside might rise in the event of heavy rain, posing a risk to the campground.6

6 We further note that, even if the campground had posted warnings or issued flood cautions when the Walkers and Johnsons checked into the campsite, there is nothing in this record to indicate that events would have turned out any differently. The Walkers and Johnsons went to bed not having heard that heavy rains would approach [*12]  and slept heavily enough that none of them woke up during the storm or to warnings by the local sheriff’s officers, who drove through the campsite at about 4:00 a.m., blowing an airhorn and flashing their car’s lights as they announced over their PA system that the river was rising.

Conclusion

Because appellees did not owe a duty to warn of or attempt to make the campground safe against flooding of the adjacent river due to torrential rain, the trial court properly granted summary judgment in their favor. We affirm the trial court’s orders.

David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: June 3, 2016

 


Duty of care for a Massachusetts campground is to warn of dangerous conditions.

Plaintiff assumes the risk of his injury at a commercial campground if there is not dangerous condition and/or he knows about the condition because he walks the trail during the day.

Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

State: Massachusetts, Appeals Court of Massachusetts

Plaintiff: Anthony Monaco

Defendant: Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground

Plaintiff Claims: negligent in failing to light the “pathway”3 and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place

Defendant Defenses: Assumption of the Risk

Holding: for the defendant

Year: 2014

This case involves a commercial campground. The plaintiff was walking up to the restroom at night and fell on the path. He sued for his injuries. The plaintiff sued the campground and others who were never clearly identified in the appellate decision.

The lower court stated the plaintiff assumed the risk based upon the defendant’s motion for summary judgment, and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The court first reviewed the requirements for a negligence suit to succeed under Massachusetts law and condensed the four steps to one sentence. “To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages.” The duty of care is only owed to those who are foreseeably endangered by the contact with the defendant.

Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.

The duty of a land owner in Massachusetts is that of reasonable care “under all the circumstances in the maintenance and operation of their property.”

Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. That is, an open and obvious danger negates the existence of a duty of care.

The fact that the plaintiff was injured does not create a legal obligation or duty on the part of the defendant. Evidence is needed to support the lack of care or proof the landowner k of the dangerous condition.

…evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards.

The plaintiff had descended the hill earlier and had not seen a dangerous condition. In fact, the plaintiff had been using the campground for eighteen years and had used the path three times the day he fell.

Nor had a dangerous condition on the hillside been identified or spotted during the camps annual inspection.

Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.

The court held the defendants owed not duty to protect the plaintiff from the conditions on the pathway.

So Now What?

The requirement that a landowner is not obligated to consistently and constantly check for dangerous conditions is not found in all states. In most states if the dangerous condition exists, the landowner must fix it or warn of it.

The obligations or duties owed to people on your land are usually based upon the reasons why the injured person was originally upon your land. In Massachusetts that issue is not discussed.

Here the obligation was to warn or correct dangerous conditions. It did not matter why the person was on the land.

What do you think? Leave a comment.

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Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

Anthony Monaco vs. Vacation Camp Resorts International, Inc., & another.1

1 Jayne Cohen.

14-P-141

APPEALS COURT OF MASSACHUSETTS

86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

December 18, 2014, Entered

NOTICE: DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL’S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28, ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT.

PUBLISHED IN TABLE FORMAT IN THE MASSACHUSETTS APPEALS COURT REPORTS.

PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.

DISPOSITION: [*1] Judgment affirmed.

CORE TERMS: pathway, campground, landowners, summary judgment, favorable, allowance, obvious danger, duty of care, citation omitted, unreasonably dangerous, obstructions, deposition, anticipate, precautions, unexpected, invitees, uneven, slope, fault, owe, shower, paved, path, owed

JUDGES: Cypher, Fecteau & Massing, JJ.

OPINION

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Anthony Monaco seeks to recover for serious injuries he sustained when he fell down a grassy hill that campers used to reach a shower building located on Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground in New Hampton, New Hampshire. The plaintiff alleges that VCRI and Jayne Cohen2 were negligent in failing to light the “pathway”3 and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place. A Superior Court judge allowed the defendants’ motion for summary judgment, reasoning that traversing the shortcut in lieu of existing paved pathways, and in darkness, is an “obvious baseline danger,” and that the defendants therefore owed no duty. We affirm.

2 Cohen served as president of Vacation Camp Resorts International, Inc., during the time of the incident in question.

3 Construing the record in the light most favorable to the plaintiff, and noting that the shower building was marked with a “restroom” sign visible from the paved road above, we accept the plaintiff’s characterization [*2] of the route between the road and the building as a pathway.

In reviewing the trial court judge’s allowance of a motion for summary judgment, we consider the evidence submitted with the motion, which may include “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 232, 676 N.E.2d 801 (1997) (citation omitted). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). We construe inferences drawn from the record in the light most favorable to the nonmoving party, and review de novo the trial court judge’s application of the law to the facts. LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318, 974 N.E.2d 34 (2012). Allowance of the motion will survive appellate review so long as there is “no genuine issue” of “material fact” and “the moving party is entitled to a judgment as a matter of law.” Id. at 325-326. Mass.R.Civ.P. 56(c).

To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages. Ronayne v. State, 137 N.H. 281, 284, 632 A.2d 1210 (1993).4 “[P]ersons owe a duty of care ‘only to those who they foreseeably endanger by their conduct.'” Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304, 605 A.2d 208 (1992) [*3] (citation omitted). “Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.” Id. at 305.

4 The trial court judge determined that New Hampshire’s substantive law governed this action. The parties do not dispute that the choice of New Hampshire law is appropriate under the circumstances of this case.

“[O]wners and occupiers of land owe plaintiffs a duty of reasonable care under all the circumstances in the maintenance and operation of their property.” Werne v. Exec. Women’s Golf Assn., 158 N.H. 373, 376, 969 A.2d 346 (2009). Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. See Pesaturo v. Kinne, 161 N.H. 550, 555, 20 A.3d 284 (2011). The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. Ibid. Lawrence v. Hollerich, 394 N.W.2d 853, 855 (Minn. App. Ct. 1986). That is, an open and obvious danger negates the [*4] existence of a duty of care. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 422, 807 A.2d 1274 (2002).

The mere fact that the plaintiff was injured does not trigger a legal duty on the defendants. He must produce some evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. Lawrence, 394 N.W.2d at 856. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards. However, other evidence revealed that the condition of the pathway, as it appeared to both parties, posed no greater risk than walkways maintained by landowners in their ordinary exercise of care. Cf. Paquette v. Joyce, 117 N.H. 832, 835, 379 A.2d 207 (1977). Monaco testified at his deposition that he was not aware of any treacherous condition as he was descending the hill, and Cohen never observed any “unexpected,” unreasonably dangerous condition, Ahern v. Amoskeag Mfg. Co., 75 N.H. 99, 101, 102, 71 A. 213 (1908), during her annual visual inspections of the campground. Thus, Monaco’s inattention to obvious dangers on the pathway was the only risk presented, which did not impose on the [*5] defendants a duty to exercise precautions. Contrast Hacking v. Belmont, 143 N.H. 546, 553, 736 A.2d 1229 (1999) (defendant liable for “unreasonably increased or concealed” risks not inherent in the game of basketball).

Moreover, “[t]here is nothing unfamiliar about the inability to perceive in the dark obstructions to the course of one who walks without light.” Ahern, supra at 101. That is, “[i]f there may be obstructions whose presence cannot be ascertained by the eye, due care requires the use of some other sense to detect them.” Ibid. When the evidence is “uncontradicted” that the plaintiff was familiar with the area where the accident occurred and that the injury occurred because of an “unexpected” condition, the defendant is not at fault for failing to anticipate it. Ibid. Unless the defendant had superior knowledge of the danger, “[i]t cannot reasonably be found that of two persons of equal knowledge and of equal ability to appreciate and understand a danger, one is in fault for not apprehending the danger and the other is not.” Id. at 102.

In this case, Monaco’s knowledge and appreciation of the condition of the pathway was equal to the defendants’. Monaco had camped on the campground once per [*6] year for eighteen years and had used the pathway three times without incident on the day of his fall. Likewise, VCRI had been operating the campground for over two decades, and Cohen was VCRI’s president for approximately six years. Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.

Conclusion. Drawing all inferences from the record in the light most favorable to the plaintiff, we conclude that the defendants owed no duty to protect him against the injury-causing condition of the pathway. The allowance of the defendants’ motion for summary judgment was proper.

Judgment affirmed.

By the Court (Cypher, Fecteau & Massing, JJ.5),

5 The panelists are listed in order of seniority.

Entered: December 18, 2014.