DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466

DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466

Norman Delamar, Appellant

v.

Fort Worth Mountain Biker’s Association, Appellee

No. 02-17-00404-CV

Court of Appeals of Texas, Second District, Fort Worth

January 24, 2019

On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-283758-16

Before Sudderth, C.J.; Gabriel and Pittman, JJ.

MEMORANDUM OPINION

Bonnie Sudderth, Chief Justice.

I. Introduction

Appellant Norman DeLamar filed the underlying lawsuit against Appellee Fort Worth Mountain Biker’s Association (the Association) to recover for injuries he sustained when he was knocked off of his mountain bike after he struck a downed tree across a mountain bike trail at Gateway Park (Gateway). Norman claimed that the Association was negligent in failing to properly maintain a safe mountain bike trail as purportedly required by its contractual agreement with the City of Fort Worth (City). The trial court granted summary judgment on Norman’s claims against the Association. We will affirm.

II. Background

On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.

Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.[1] Norman asserted that through the Contract, the Association agreed to “assume responsibility for maintenance, construction and safety of the trails,” and as such owed “a duty to protect the general public from dangerous conditions such as falling trees.” Norman claimed that the Association had breached this alleged duty by

• failing to make any effort to ensure that the trees alongside of the bicycle trail were not a danger to cyclists;

• failing to implement any sort of safety procedure with respect to the danger of falling trees in high bicycle (and pedestrian) traffic areas;

• failing to maintain the trails to prevent dangerous conditions from occurring despite knowing the dangers associated with cycling;

• failing to provide cyclists with adequate safeguards, or any safeguards at all, to prevent dangerous conditions from occurring; and

• consciously disregarding the heath of the trees and the danger that they pose.

The Contract provides that the Association “shall perform all work and services hereunder as an independent contractor . . . . [and] shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder[.]” The Contract specifically provides that the Association “shall, at its sole cost and expense, construct and maintain the Trails in accordance with [the] Agreement,” and it defines “trail maintenance” as including, but not limited to, “repairing, replacing, and rebuilding trails or sections of trails that are eroding or in disrepair; pruning of trees; [and] removal of brush[.]” However, the Contract prohibits the Association from “trimming and pruning, until written approval is obtained from the Director [of the Parks and Community Services Department],” and from “remov[ing] any tree without prior written permission from the City Forester.” [Emphasis added.] Finally, the Contract expressly reserves the City’s right to control and access all portions of Gateway: “The City does not relinquish the right to control the management of the Parks, or the right to enforce all necessary and proper rules for the management and operation of the same. The City . . . has the right at any time to enter any portion of the Parks[.]”

The Association answered and then filed a no-evidence and traditional motion for summary judgment. In its motion, the Association asserted that there was no evidence that

• the Association was negligent as it owed Norman no duty with respect to the condition of the premises; or

• the Association owed a duty to keep the premises in reasonably safe condition, inspect the premise to discover any defects, or to make safe any defect or give an adequate warning of any dangers.

Although the Association clearly challenged the existence of any legal duty it owed to Norman, the Association’s motion primarily argued that Norman’s claim sounded in premises liability rather than general negligence and that he could not artfully plead a general negligence claim when his injuries were caused by a premises defect. Norman filed a response and attached, inter alia, a short affidavit and an expert report from an arborist, Matthew Clemons. In his response, Norman appeared to adopt the Association’s characterization of his claim as one for premises liability and in doing so focused on his status, arguing that he was an invitee. Indeed, Norman’s “Conclusion” sought denial of the summary judgment motions because there was “more than enough credible evidence to find that the [Association] is liable under a premises liability theory for this incident[.]” [Emphasis added.] The Association filed a reply and objected to the expert report from Clemons as inadmissible hearsay.

Following the hearing on the Association’s no evidence and traditional motions for summary judgment, the trial court requested letter briefs and took the matter under advisement. In his letter brief, Norman altered his prior position and for the first time asserted that the Association’s summary judgment theory was flawed because his suit against the Association was based on a general negligence theory, not a premises liability theory. The trial court signed an order sustaining the Association’s objections to Clemons’s expert report and a separate order granting the Association’s no evidence and traditional motions for summary judgment.

On appeal, Norman contends the trial court erred by construing his claim as one for premises liability rather than general negligence and abused its discretion by sustaining the Association’s hearsay objection to Clemons’s report.

III. Norman’s Negligence Claim

A. Standard of Review

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant who conclusively negates at least one essential element of the nonmovant’s cause of action is entitled to summary judgment as to that cause of action. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). The only question is whether an issue of material fact is presented. See Tex. R. Civ. P. 166a(c).

After an adequate time for discovery, a party without the burden of proof at trial may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense. See Tex. R. Civ. P. 166a(i). Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.-Houston [1st Dist.] 1999, no pet.). We review a no evidence motion for summary judgment under the same legal sufficiency standards as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. See id. at 751. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. A mere scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. See id.

When reviewing traditional and no evidence summary judgments, we perform a de novo review of the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.-Tyler 2008, pet. denied).

All grounds in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c). “When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious.” State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

When a party moves for both a traditional and a no evidence summary judgment, we generally first review the trial court’s summary judgment under the no evidence standard of Rule 166a(i). See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no evidence summary judgment was properly granted, we need not reach arguments under the traditional motion for summary judgment. See id.

B. General Negligence vs. Premises Liability Theories of Recovery

Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.” United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997) (stating that “[b]ecause premises defect cases and negligent activity cases are based on independent theories of recovery, a simple negligence [jury] question . . . cannot support a recovery in a premises defect case”); E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 57-58 (Tex. App.-Houston [14th Dist.] 2014, pet. dism’d) (“Because [claimant] was limited to a premises liability theory of recovery, . . . the trial court erred when it submitted an ordinary negligence cause of action against [appellant] to the jury. . . . Accordingly, the jury’s finding that [appellant] was negligent is immaterial and cannot support a judgment against [appellant].”). As our sister court has explained, premises liability is a “special form of negligence in which the duty owed to the plaintiff depends upon the plaintiff’s status on the premises at the time of the incident.” Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 163-64 (Tex. App.-Dallas 2011, no pet.) (citing Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010)).[2]

While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. See Mangham v. YMCA of Austin, Texas-Hays Comtys., 408 S.W.3d 923, 929 (Tex. App.-Austin 2013, no pet.); see also W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex. 2016).

Because the lines between negligent activity and premises liability are “sometimes unclear,” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010), determining whether a claim is one for a premises defect or general negligence “can be tricky.” Austin v. Kroger Tex. L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d 193 (Tex. 2015). The policy undergirding this distinction is that negligence encompasses a malfeasance theory based on affirmative, contemporaneous conduct that caused the injury, whereas premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe. See Del Lago Partners, 307 S.W.3d at 776; Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (explaining negligent activity concerns “simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done” while premises liability concerns the “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about” and quoting Keetch v. Kroger Co., 845 S.W.2d 262, 266-67 (Tex. 1992)).

C. Discussion

In his first issue, Norman argues that the trial court erred by granting summary judgment on a premises liability theory when his claims sounded in general negligence: “The Association characterized [my] lawsuit against it as one for premises liability. This argument is flawed because the Association was not the possessor of the premises when [I] was injured[.]” Norman argues that his “petition is fairly constructed as advancing an ordinary negligence claim” because he pleaded that the Association is liable for “failing to employ any procedure to ensure safety from falling trees, and for failing to maintain a safe bike path and the trees along it.” The Association responds that regardless of how Norman pleaded his claim, he is limited to a premises liability theory of recovery because Norman was injured by an unsafe or dangerous condition on the premises-not by contemporaneous negligent activity.[3]

1. Summary Judgment was Not Granted on an Unaddressed Claim Because the Association’s Motion for Summary Judgment Challenged the Existence of a Legal Duty

As a preliminary matter, we consider Norman’s contention that the trial court improperly granted summary judgment on his negligence claim when the Association’s motion for summary judgment actually addressed only an unpleaded premises-liability claim. See Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (stating it is reversible error to grant summary judgment on a claim not addressed in the motion). Three of our sister courts have addressed similar instances in which defendants filed summary judgment motions on the theory that the plaintiff had impermissibly pleaded a premises defect claim as a general negligence claim. See Griffin v. Shell Oil Co., 401 S.W.3d 150 (Tex. App.-Houston [1st Dist.] 2011, pet. denied); Somoza v. Rough Hollow Yacht Club, Ltd., No. 03-09-00308-CV, 2010 WL 2867372, at *4 (Tex. App.-Austin July 20, 2010, no pet.) (mem. op.); Kalinchuk v. JP Sanchez Construction Co., No. 04-15-00537-CV, 2016 WL 4376628, at *3 (Tex. App.- San Antonio Aug. 17, 2016, no pet.) (mem. op.).

In Griffin, the First District Court of Appeals considered whether “the trial court erred in granting summary judgment in favor of Shell and CH2M on his negligent-activity claims because neither Shell nor CH2M sought summary judgment on these claims.” 401 S.W.3d at 157. After stating that a trial court errs by granting more relief requested by disposing of issues not presented to it in the summary judgment motion, the First court analyzed each defendant’s summary-judgment motion and held that based “upon the plain language,” the defendants sought summary judgment “only on [appellant’s] premises-defect claim” and not his negligent activity claim. Id. at 158-59. Thus, the First court reversed summary judgment on appellant’s negligence claim and remanded the case. Id. The First court did note, however, that “[a] legal duty must be established in order for [appellant] to ultimately recover on his negligent-activity claim[, ]” id. at 163 n.4, thus signaling its concern over the viability of appellant’s negligence claim.

In Somoza, the plaintiff had been injured while operating a jet ski when he allegedly ran into a partially submerged steel cable tethered to a floating dock, near the marina owned and operated by a yacht club. Somoza, 2010 WL 2867372, at *1. He filed suit against the yacht club and alleged negligence and premises liability claims. Id. The yacht club filed a hybrid no evidence and traditional motion for summary judgment, asserting, in part, that the plaintiff “has no claim for general negligence . . . because his negligence claim sounds solely in premises liability,” and that the plaintiff has “produced no evidence of the essential elements of duty, breach, or proximate cause.” Id. The trial court granted the motion.

On appeal, the Third District Court of Appeals considered the plaintiff’s contention that the trial court improperly granted summary judgment on his general negligence claim. Id. at *4. The Third court “assum[ed] without deciding that [the plaintiff] could bring a claim for general negligence despite his failure to allege injury resulting from any contemporaneous activity by the Yacht Club” and nevertheless concluded that “he has still failed to establish the existence of a duty to support a claim in negligence.” Id. at *5.

In Kalinchuk, the plaintiff filed a lawsuit against his putative employer for negligence and gross negligence after he was injured at a baseball field renovation site by a section of bleachers that fell on him. 2016 WL 4376628, at *1. The employer moved for traditional and no evidence summary judgment, and alleged, inter alia, that the plaintiff did not have more than a scintilla of evidence to establish the existence of a legal duty. Id. In its motion, the employer relied on cases involving premises liability claims and asserted that the plaintiff purported to state a claim for negligence when his claim was “actually based on the theory of premises liability because he [sought] to recover for an injury allegedly created by a condition on the premises rather than for an injury created as a result of an activity.” Id. at *3. The plaintiff responded that the employer owed him a common law duty to exercise reasonable care and avoid a foreseeable risk of harm. Id. The trial court granted summary judgment. Id.

On appeal, the Fourth District Court of Appeals reasoned that “[w]hether [plaintiff’s] claim is a claim for negligence as he argues or a premises liability claim as [employer] contends, the question of whether a duty exists remains the same in that it requires a balancing of interrelated factors that make up the risk-utility balancing test.” Id. After applying the risk-utility balancing test to the facts of the case, the Fourth court concluded that the plaintiff had “failed to produce a scintilla of evidence creating a fact issue to support the existence of [a] legal duty owed to him by [the employer.]” Id. at *3-4.

We do not quarrel with the First court’s strict approach in refusing to read into the summary judgment motion a ground that was not clearly articulated. However, we view the approach by the Third and Fourth courts as allowing for a more expedient disposition while maintaining fidelity to Rule 166a(c)’s requirement that summary judgment motions “state the specific grounds therefor.” Tex.R.Civ.P. 166a(c); Somoza, 2010 WL 2867372, at *5; Kalinchuk, 2016 WL 4376628, at *3-4.

The existence of a legal duty is a threshold issue generally decided as a matter of law. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991). And even assuming under these facts that Norman could bring a claim for general negligence, the Association in its motion for summary judgment challenged the existence of a legal duty owed to him regarding the downed tree and maintenance of trail safety regardless of whether the duty arose under a premises liability theory based on Norman’s status at the time of the injury or a general negligence theory balancing test.[4] See Kalinchuk, 2016 WL 4376628, at *3-4 (explaining whether the plaintiff’s claim is a claim for negligence as he argued or a premises liability claim as the defendant contended, “the question of whether a duty exists remains the same in that it requires a balancing of interrelated factors that make up the risk-utility balancing test”); cf. Del Lago Partners, 307 S.W.3d at 767 (applying risk-utility balancing factors to determine duty in premises liability case); Wyckoff, 357 S.W.3d at 164 (“General negligence principles apply to a contractor who has left [a] premises in an unsafe condition.”). Therefore, because the summary judgment motion fairly challenged the existence of a legal duty, we reject Norman’s contention that the trial court erred by granting the motion on an unchallenged ground, and we now analyze whether the Association owed Norman a legal duty under a general negligence theory.

2. No Legal Duty Under a General Negligence Theory

The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex. 2002). “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.” Id. at 34. Of these factors, the Supreme Court of Texas has identified “foreseeability as the ‘foremost and dominant consideration’ in the duty analysis.” Id. at 36 (quoting El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)). “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.” Midwest Emp’rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex. App.-San Antonio 2009, no pet.). However, foreseeability alone is not sufficient to impose a duty. Id.

Here, Norman pleaded that the Association contractually assumed “responsibility for maintenance, construction and safety of the trails,” and as such, owed a duty to “protect the general public from dangerous conditions[.]” The record, which contains the Contract and deposition excerpts, evidences the Association’s agreement to, and exercise of, some limited control over the construction and maintenance of Gateway’s bike trails by having monthly meetings to discuss maintenance issues and by building trails in the months between May and October. The summary judgment evidence also provided that the Association holds an annual work day in June to make sure the trails are in “tiptop shape” for their annual “fat tire festival.” This workday consists of going through the entire trail to look for places that needed to be trimmed or pruned.

Lawrence “Larry” Colvin, the Association’s president at the time of Norman’s crash, testified that during the monthly meetings, the Association’s members discussed safety of the trees in general as well as identified certain problem trees to City employees who “were the only ones that [could] operate the chainsaws.” Larry also testified that the Association had once asked the City to close the trail because of “so many trees down,” but that the City refused. Larry testified that the Association worked with Melinda Adams, an “urban forester” with the City, who “[took] a look at the trees.” Although Larry acknowledged that the Association had no “tree safety plan” and had never consulted an arborist, he concluded that even retaining a certified arborist to walk Gateway once a week would still not prevent falling trees in a park “hundreds of thousands of trees.”

Larry’s testimony concerning the existence of “hundreds of thousands of trees” along the mountain bike trail provided proof that the danger of a falling tree was plausible. And in his deposition, Larry acknowledged that the likelihood of falling trees would increase in “an unprecedented drought like we were in in 2014”-the year of Norman’s injury.

However, Norman testified in his deposition that he had ridden the same trail “no more [than] two days” earlier and that he had not seen the downed tree, so it was possible that the tree had fallen only a day or two before his crash. Indeed, Norman conceded that it was possible that the tree could have actually fallen only a few hours before his crash. Moreover, the Contract expressly prohibits the Association from pruning trees without the Director’s prior written approval and expressly prohibits the Association from removing any tree without prior written permission from the Forester. Norman does not direct us to any part of the Contract showing that the Association had agreed to assume a legal duty to maintain the safety of the trails for the general public.

Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.[5] See Felts v. Bluebonnet Elec. Coop., Inc., 972 S.W.2d 166, 169 (Tex. App.-Austin 1998, no pet.) (rejecting complainant’s argument that an electrical co-op’s tree-trimming agreement creating a limited right to trim or clear trees for the purpose of protecting its power lines “created a broader duty to maintain the area for the protection of the general public traveling on the nearby county road”); Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 292 (Tex. App.-Waco 1997, writ denied) (holding that “a defendant’s policy to remedy dangerous conditions he may come across does not impose a legal duty on him to these third parties” and that a defendant bears “no common law duty to remove debris . . . that was left by some other party”); see also J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515, 530-32 (Tex. App.-Austin 2009, no pet.) (holding a contractual agreement did not create a legal duty to a third party when the contractual benefit to the third party was not clearly intended by the contract and was merely incidental to the agreement).

Therefore, the trial court did not err by granting summary judgment on Norman’s negligence and gross negligence claims. See Gonzalez v. VATR Constr., LLC, 418 S.W.3d 777, 789 (Tex. App.-Dallas 2013, no pet.) (holding that because summary judgment was proper on negligence claim, it was also proper on gross negligence claim). We overrule Norman’s first issue.

IV. Norman’s Excluded Summary Judgment Evidence

Norman’s second issue challenges the trial court’s decision to sustain the Association’s hearsay objection and strike Matthew Clemons’s report. Norman’s contention is that because he submitted an affidavit from Clemons in which Clemons swore that the attached report was a true and correct copy of the report that he had personally prepared, the report was authenticated, “which overcomes the hearsay problem.” The Association responds that Norman misunderstands its objection, which was that the report was inadmissible hearsay, not that it was not properly authenticated.

A. Standard of Review

A trial court’s rulings on the admissibility of evidence are reviewable under an abuse of discretion standard. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court’s discretion in determining whether an expert is qualified to testify on a matter is broad but not unbounded. In re Commitment of Bohannan, 388 S.W.3d 296, 307 (Tex. 2012). A trial court abuses its discretion by excluding expert testimony if the testimony is relevant to the issues in the case and is based on a reliable foundation. Id.; State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009) (op. on reh’g).

B. Analysis

Norman attached a short affidavit from Matthew Clemons which stated, in relevant part, as follows:

I certify that the ‘Initial Assessment of Tree Conditions; Gateway Park Mountain Bike Trail’ was prepared on March 21, 2017 for Jackson Davis regarding Norman DeLamar’s bicycle incident, which is attached as an Exhibit to Plaintiff’s Response to Fort Worth Biker’s Association Traditional and No Evidence Motions for Summary Judgment, is a true and correct copy of the report which I personally prepared and provided Mr. Davis.

The March 21, 2017 letter was attached to Norman’s summary judgment response as Exhibit D.

The Association asserts that Clemons’s affidavit (which was not objected to), may authenticate the attached report, but it does not remove the report from the ambit of hearsay. We agree. See Tex. R. Evid. 801, 802; cf. Petty v. Children’s WorldLearning Ctrs., Inc., No. 05-94-00998-CV, 1995 WL 379522, at *5 (Tex. App.-Dallas May 31, 1995, writ denied) (explaining that “[a]uthenticity is separate and apart from qualification as an exception under the hearsay rule”). Further, the report does not obviously fall within any of the exclusions from hearsay (Tex. R. Evid. 801(e)) or exceptions to the rule against hearsay (Tex. R. Evid. 803)-indeed, Norman does not assert any exclusion or exception.

Accordingly, we hold that the court did not abuse its discretion by sustaining the Association’s hearsay objection to Clemons’s report, and we overrule Norman’s second issue.

V. Conclusion

Having held that the trial court did not err by granting summary judgment on Norman’s negligence and gross negligence claims and that the trial court did not abuse its discretion by excluding Norman’s expert’s report as inadmissible hearsay, we affirm the trial court’s judgment.

—–

Notes:

[1]Norman’s suit against the Association for negligence and gross negligence was eventually severed from his suit against the City.

[2]To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998), whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Helbing v. Hunt, 402 S.W.3d 699, 702 (Tex. App.-Houston [1st Dist.] 2012, pet. denied).

[3]The Association asserts it is a “non-possessory interest holder” which is “the legal equivalent of the occupier” of the bike trail portion of Gateway. Put differently, the Association contends it has rights akin to that of an easement holder. See Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 309 (Tex. App.- Houston [1st Dist.] 2010, pet. denied) (“[A]n easement is a nonpossessory interest in another’s property that authorizes its holder to use that property for a particular purpose.”).

[4]Although we do not reach the issue, we believe that Norman’s claim sounds in premises liability in any event. See United Scaffolding, 537 S.W.3d at 472 (“We have recognized that slip/trip-and-fall cases have consistently been treated as premises defect causes of action. In such cases, the plaintiff alleges injury as a result of a physical condition or defect left on the premises, not as a contemporaneous result of someone’s negligence.” (internal citation and quotation marks omitted)); Sampson, 500 S.W.3d at 389-90 (citing Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113 (Tex. 2010) (per curiam), a case with injuries caused by a bicycle crash after the cyclist ran over a metal chain stretched across a college campus driveway as illustrating a “quintessential premises defect claim”); Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004) (concluding that the “allegation of an injury caused by a tree limb falling on [plaintiff] constitutes an allegation of a condition or use of real property and is an allegation of a premises defect”).

[5]Norman also does not persuade us that we should create a legal duty regarding the downed tree and trail safety based on public policy considerations. See Kalinchuk, 2016 WL 4376628, at *4. Indeed, public policy considerations weigh heavily against imposing such a legal duty on what is essentially a group of volunteer mountain bike enthusiasts who have been granted such limited oversight over the safety of the bike trails, if any.

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Safe, NOTHING is safe, when you advertise telling those who come to your website that your business, activity, or land is safe, you will be writing checks for anything pain, blood, illness or injury that can occur.

Website for park stated it was a safe place for visitors. Plaintiff went to the park because of that statement and when she fell on a rock protruding above the boardwalk, she sued. Is a rock sticking through a boardwalk a risk, normal or at least “not safe.”

The plaintiff was able to claim negligent misrepresentation because the park represented itself as safe. Safe is a Bad work.

Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

State: New Hampshire: United States District Court for the District of New Hampshire

Plaintiff: Misha Kendall

Defendant: The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association

Plaintiff Claims: Negligence, Gross Negligence and Negligent Misrepresentation

Defendant Defenses:

Holding: for the plaintiff

Year: 2017

Summary

The website promoting the private park stated the park was safe. The plaintiff went, paid her fee and got hurt. Therefore, the park was not safe. The plaintiff was able to argue the statements made on the website about safety were negligent misrepresentation; Negligent statements made to induce the plaintiff to come to the park.

The second issue was a gap between a recently passed statute and decisions of the New Hampshire Supreme Court which effectively nullified the two immunity statutes by the legislature to protect the park.

Facts

There is always an issue of “when.” When did the plaintiff actually learn or see, but in this case, the court stated the following facts.

The land is owned by a nonprofit corporation, and is operated by a third party.

The Society for the Protection of New Hampshire Forests (the “Society”) is a nonprofit corporation which owns the Lost River Gorge and Boulder Caves (“Lost River”). White Mountain Attractions Association (“White Mountain”) operates Lost River. White Mountain manages Lost River’s website, and the Society contributes to and approves the website’s content.

The land is protected from lawsuits by a specific statute that was enacted in 1917.

Section 1. The Society for the Protection of New Hampshire Forests, being a corporation organized under the laws of this state for the purpose of encouraging the protection and preservation of forests and other natural resources of this state for the public benefit, and having in pursuance of its corporate purposes acquired several properties, including those known as Sunapee, Monadnock and Lost River’s reservations, which it has made accessible for use by the public by the building of paths, trails, bridges, and other structures, is hereby exempted from all civil liability in any suit or action by or on behalf of any person injured or claiming to have been injured through the negligent act or omission of said society or of any officer, agent, or employee thereof in constructing or maintaining such paths, trails, bridges, or other structures upon any property now held or hereafter acquired by it for such purposes.

So, the relationship with the state is, it is not a state park, but it is protected like one to a major extent.

The plaintiff alleges that was looking for an outdoor activity that would be safe for herself and her two six-year-old children. She went to the website of for the park to look for a “safe way” to view rock formations.

She took herself and her two children to the park, paid the entrance fee and proceeded to a boardwalk. The boardwalk was four feet wide and crowded. The boardwalk turned sharply after a bridge on the say to the Sun Altar cave. The plaintiff’s view was blocked after the turn because of the crowd, a sign and a large tree.

Just after the turn a boulder protruded up through the boardwalk about a foot.

Just after the turn, a large boulder extended through the middle of the boardwalk to a height of about a foot. The boardwalk was constructed around this boulder. There were no signs to warn of the boulder in the boardwalk. Kendall did not see the boulder in her path, tripped over it, and fell, shattering her elbow. Her digital camera was destroyed, and her clothing had to be cut off of her at the hospital. She has permanent damage to her elbow that has resulted in disability.

The plaintiff sued for her injuries.

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

The defendant raised four defenses to the gross negligence and negligent misrepresentation claims of the plaintiff.

Defendants contend that Kendall’s claims for gross negligence and negligent misrepresentation are futile for the following reasons: (a) defendants are immune from liability for both claims under the 1917 Law; (b) no claim for gross negligence exists under New Hampshire law; (c) the statement about the boardwalks being safe is not a misrepresentation of fact but merely an opinion; and (d) Kendall does not allege damages that can be recovered for negligent misrepresentation.

The court first started with the immunity statutes. Besides the specific immunity statute enacted in 1917, there was a more recent statute, RSA 508.14, II.

508:14. Landowner Liability Limited.

II. Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

Emphasize added

What never enters the discussion is the fact the plaintiff paid to be on the land, so the recreational use statute, RSA 508.14 should not apply.

The court first decided if the new statute canceled out the old statute and made the termination that it did not. It then examined both statutes stating that the statutes should be strictly construed and viewed as being consistent with each other. Reading the first statute that one, the court found the first statute stopped claims for negligence, but not gross negligence.

The issue though is the New Hampshire Supreme court ruled that New Hampshire does not recognize gross negligence. There is only one form of negligence in New Hampshire, simple negligence.

However, because the statute in question stated that the defendant could be liable for gross negligence or willful or wanton misconduct, the court held the legislature wanted the plaintiff to be able to sue for gross negligence.

Therefore, the plaintiff’s allegations of gross negligence were outside of the immunity afforded by both statutes.

Gross negligence was defined by the court as:

…”very great negligence, or the absence of slight diligence, or the want of even scant care” and willful misconduct has been interpreted as intentional conduct or recklessness that “carries a great chance of causing harm to another.”

Based on that definition the court was able to find the boulder built in the middle of the boardwalk was gross negligence.

…Kendall alleges that defendants built the boardwalk around an obstruction, a boulder that protrudes into the boardwalk approximately one foot higher than the boardwalk. She also alleges that the boulder is in a dangerous location, just around a turn, and is obscured by a sign, a tree, and crowds of people using the boardwalk. She alleges that defendants placed no warnings about the boulder for the tourists to see before walking on the boardwalk. The proposed amended complaint alleges that the obstructed boardwalk constitutes an obvious danger, and that defendants acted with gross negligence in failing to remove or warn of the boulder.

The court tackled the negligent misrepresentation claim next. Negligent misrepresentation is “a negligent misrepresentation of a material fact by the defendant and justifiable reliance by the plaintiff.” The website stated the place was safe and the plaintiff, in her opinion, found it wasn’t.

The court was not sold on the plaintiff’s allegations, however.

At this early stage, the court cannot determine whether defendants’ alleged statement that there were boardwalks at Lost River that provided a “safe way” to view rock formations is an actionable misrepresentation.

Whether the statement on the website was actionable would be based upon several factors: whether or not it was puffing, slight exaggerations to close the sale that everyone knows are not true, the specificity of the statement, the knowledge of the person making the statement and the knowledge of both parties in relation to each other.

The plaintiff argued “that on their website, defendants represented that there were boardwalks at Lost River that provided a “safe way” to view rock formations despite obvious dangers.”

The allegations made by the plaintiff were enough for the court not to dismiss them.

Consequently, the plaintiff will be allowed to amend her complaint to add additional claims, which would make the defendants motion to dismiss the original complaint moot.

So Now What?

Marketing makes promises that Risk Management has to Pay For. The marketing promised a safe place to recreate, and the plaintiff received in an injury there; therefore, the place was not safe.

Combine the statements made on the website with the gap between decisions of the New Hampshire Supreme Court and recent statutes in New Hampshire and the plaintiff was effective in keeping her claim alive.

What do you think? Leave a comment.

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New Hampshire Recreational Use Statute

 New Hampshire Recreational Use Statute

Title XVIII  Fish and Game

Chapter 212  Propagation of Fish and Game

Liability of Landowners

RSA 212:34  (2017)

212:34.  Duty of Care.

I. In this section:

(a) “Charge” means a payment or fee paid by a person to the landowner for entry upon, or use of the premises, for outdoor recreational activity.

(b) “Landowner” means an owner, lessee, holder of an easement, occupant of the premises, or person managing, controlling, or overseeing the premises on behalf of such owner, lessee, holder of an easement, or occupant of the
premises.

(c) “Outdoor recreational activity” means outdoor recreational pursuits including, but not limited to, hunting, fishing, trapping, camping, horseback riding, bicycling, water sports, winter sports, snowmobiling as defined in RSA 215-C:1, XV, operating an OHRV as defined in RSA 215-A:1, V, hiking, ice and rock climbing or bouldering, or sightseeing upon or removing fuel wood from the premises. 

(d) “Premises” means the land owned, managed, controlled, or overseen by the landowner upon which the outdoor recreational activity subject to this section occurs.

(e) “Ancillary facilities” means facilities commonly associated with outdoor recreational activities, including but not limited to, parking lots, warming shelters, restrooms, outhouses, bridges, and culverts. 

II. A landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes, except as provided in paragraph V. 

II-a. Except as provided in paragraph V, a landowner who permits the use of his or her land for outdoor recreational activity pursuant to this section and who does not charge a fee or seek any other consideration in exchange for allowing such use, owes no duty of care to persons on the premises who are engaged in the construction, maintenance, or expansion of trails or ancillary facilities for outdoor recreational activity.

III. A landowner who gives permission to another to enter or use the premises for outdoor recreational activity does not thereby:

(a) Extend any assurance that the premises are safe for such purpose;

(b) Confer to the person to whom permission has been granted the legal status of an invitee to whom a duty of care is owed; or 

(c) Assume responsibility for or incur liability for an injury to person or property caused by any act of such person to whom permission has been granted, except as provided in paragraph V.

IV. Any warning given by a landowner, whether oral or by sign, guard, or issued by other means, shall not be the basis of liability for a claim that such warning was inadequate or insufficient unless otherwise required under subparagraph V(a).

V. This section does not limit the liability which otherwise exists:

(a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity;

(b) For injury suffered in any case where permission to enter or use the premises for outdoor recreational activity was granted for a charge other than the consideration if any, paid to said landowner by the state;

(c) When the injury was caused by acts of persons to whom permission to enter or use the premises for outdoor recreational activity was granted, to third persons as to whom the landowner owed a duty to keep the premises safe or to warn of danger; or 

(d) When the injury suffered was caused by the intentional act of the landowner.

VI. Except as provided in paragraph V, no cause of action shall exist for a person injured using the premises as provided in paragraph II, engaged in the construction, maintenance, or expansion of trails or ancillary facilities as provided in paragraph II-a, or given permission as provided in paragraph III.

VII. If, as to any action against a landowner, the court finds against the claimant because of the application of this section, it shall determine whether the claimant had a reasonable basis for bringing the action, and if no reasonable basis is found, shall order the claimant to pay for the reasonable attorneys’ fees and costs incurred by the landowner in  defending against the action.

VIII. It is recognized that outdoor recreational activities may be hazardous. Therefore, each person who participates in outdoor recreational activities accepts, as a matter of law, the dangers inherent in such activities, and shall not maintain an action against an owner, occupant, or lessee of land for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the outdoor recreational participant assumes as a matter of law include, but are not limited to, the following: variations in terrain, trails, paths, or roads, surface or subsurface
snow or ice conditions, bare spots, rocks, trees, stumps, and other forms of forest growth or debris, structures on the land, equipment not in use, pole lines, fences, and collisions with other objects or persons.


City not liable for injuries to BMX rider, riding in City Park on features built without city’s consent

The duty owed by the city to features, structures and changes to the park that the city did not make was low and protected by the recreational use statute in this case.

Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592

State: Washington, Court of Appeals of Washington, Division One

Plaintiff: Jon L. Wilkerson

Defendant: The City of SeaTac

Plaintiff Claims: City breached the duty to use reasonable care in failing to maintain the park and “allowing man-made jumps to remain despite the . . . inherent danger the jumps posed.”

Defendant Defenses: No Duty, and Washington Recreational Use Statute

Holding: For the City

Year: 2012

This is very sad; the plaintiff ended up a quadriplegic because of the accident. This also explains the lawsuit. There is so much money at stake when someone is rendered paralyzed or a quadriplegic that there is bound to be a lawsuit.

In this case, the plaintiff had just moved to the area. He inquired at a local shop where he could practice jumping in anticipation of his trip to Whistler in BC with some friends. The bike shop sent him to Des Moines Trail Park.

The Des Moines Creek Trail Park is a 96-acre woodland preserve open to the public for recreational use. The City of SeaTac (City) owns and operates the portion of the park located within the City, 1 including dirt mounds in the park that bicyclists use as bike jumps. The dirt jumps, known as “the Softies,” are located about a quarter-mile off a paved trail in the park. The City did not create or maintain the dirt jumps.

The plaintiff considered himself an excellent mountain biker and BMX rider. He was used to doing ramps and jumps.

The area was built by people other than the city. It was known as “the softies” by locals. Around 5 pm one day, the plaintiff went to the park to ride. He rode several jumps and scouted them all out before jumping them. He picked out a gap jump, deciding other jumps were outside of his skill set.  While riding the gap jump he crashed and rendered himself a quadriplegic.

The plaintiff could not move and laid calling for help for several hours before passing out.  Approximately 1 AM the next day the city reported the plaintiff’s car in the parking lot. Around 11 am, two cyclists found the plaintiff and notified EMS.

While in a rehabilitation hospital the plaintiff stated: “…that although he was an experienced mountain biker, as he went over the jump, he came down “wrong” because he” ‘was a bit out of practice’ ” and ” ‘a little too bold.’

The plaintiff filed this lawsuit against the city. The trial court dismissed the claims based on the city’s motion for summary judgment, and this appeal followed.

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

The appellate court first looked at the defense provided by the Recreational Use Statue of Washington. Chapter 4.24  Special Rights of Action and Special Immunities.

Under Washington’s law a landowner is immune from liability for injuries upon his land unless the injury is “caused by a known dangerous artificial latent condition “for which warning signs have not been conspicuously posted.”

To establish the City was not immune from suit under RCW 4.24.210, Wilkerson must show the City charged a fee for the use of the land, the injuries were intentionally inflicted, or the injuries were sustained by reason of a known dangerous artificial latent condition for which no warning signs were posted. Davis,

The issue then came down to whether or not the jumps were a latent condition. There are four elements the plaintiff must prove to show the jumps were a latent condition.

Each of the four elements of a known dangerous artificial latent injury-causing condition must be present in order to establish liability under the recreational land use statute. “If one of the four elements is not present, a claim cannot survive summary judgment.”

The definition of latent under Washington Law is “means” ‘not readily apparent to the recreational user.”

In determining whether the injury-causing condition is latent, the question is not whether the specific risk is readily apparent but, instead, whether the injury-causing condition itself is readily apparent.

The plaintiff’s experts argued that the approach which was described as an S-curve was a latent condition. However, the court distinguished that argument by stating there was a difference between a latent condition and a patent condition that had latent dangers.

The condition itself must be latent.” While the court expressly acknowledged that “it may not have occurred to Van Dinter that he could injure himself in the way he did,” the court concluded that “this does not show the injury-causing condition — the caterpillar’s placement — was latent. . . . The caterpillar as well as its injury-causing aspect — its proximity to the grassy area — were obvious.”

Nor did the fact that the plaintiff did not appreciate the risk caused by the approach change the condition of the land.

The plaintiff then argued that his secondary injury, lying in the park all-night, suffering hypothermia that required additional surgeries and hospitalizations were not covered by the recreational use statute.

Secondary injuries were not covered under Wisconsin’s Recreational Use Statute. However, the language in the Wisconsin statute differs from the language in the Washington statute.

By contrast, RCW 4.24.200-.210 grants a broader immunity to landowners “who allow members of the public to use [their lands] for the purposes of outdoor recreation.” RCW 4.24.210(1); (because landowner “open[ed] up the lands for recreational use without a fee,” and thereby “brought itself under the protection of the immunity statute,” landowner was immune from liability regardless of whether “a person coming onto the property may have some commercial purpose in mind”).

The court held the immunity provided by the Washington Recreational Use Statute was broadly written and covered the secondary injuries the plaintiff suffered.

The plaintiff then argued the city was willful and wanton or intentional because the city knew that other cyclists had been injured at the park. This argument stemmed from the plaintiff asserting that “that the government’s failure to” ‘put up signs and ropes’ ” was deliberate and the government” ‘knew or should have known’ ” of the dangerous condition.”

However, the court found that this did not rise to the level of willful or wanton or intentional negligence.

Here, as in Jones, there is no dispute that the City did not create the dirt jumps or S-curve approach. While the alleged failure of the City to “bulldoze the Softies” or post warning signs may constitute negligence, it is not willful or wanton conduct under the recreational land use immunity statute.

The plaintiff next argued the defendant had a duty to supervise and patrol the park.

Wilkerson also claims the City assumed a duty to supervise and patrol the park. Wilkerson points to the sign the City posted in the parking lot and the failure to take some action after the City employee saw his car in the parking lot at 1:00 a.m. The sign posted at the entry to the Des Moines Creek Trail Park parking lot stated:

However, this argument also failed because if there was a duty, it was owed to the general public, not to the plaintiff specially.

“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).”

Because the record shows that the City did not assume a duty or make express assurances to Wilkerson, the public duty doctrine bars his claim that the City owed him a duty of care.

The appellate court agreed with the trial court, and the dismissal of the lawsuit was affirmed.

So Now What?

It is sad when any activity renders someone, especially a young person, a quadriplegic. However, sometimes, you have to accept the fact you screwed up, or misjudged the jump, as the plaintiff admitted to in the rehab hospital and live with your mistakes.

If you are such a person, but as much disability, health and life insurance that you can afford, it may be the only way to stay somewhat better off than what the government can provide.

From the stand point of the defendant city, you need to understand your duty and your level of duty to features, additions or other things that are added to a park or city property without your permission or without you exercising control over the situation.

Not all cities can escape liability when a group of people add to a park.

 

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Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592

Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592

Jon L. Wilkerson, Appellant, v. The City of SeaTac, Respondent.

No. 66524-3-I

COURT OF APPEALS OF WASHINGTON, DIVISION ONE

2012 Wash. App. LEXIS 2592

April 17, 2012, Oral Argument

November 5, 2012, Filed

NOTICE:

As amended by order of the Court of Appeals March 27, 2013. RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.

SUBSEQUENT HISTORY: Reported at Wilkerson v. City of SeaTac, 171 Wn. App. 1023, 2012 Wash. App. LEXIS 2614 (2012)

Reconsideration denied by, Modified by Wilkerson v. City of SeaTac, 2013 Wash. App. LEXIS 797 (Wash. Ct. App., Mar. 27, 2013)

PRIOR HISTORY: [*1]

Appeal from King County Superior Court. Docket No: 09-2-23226-1. Judgment or order under review. Date filed: 12/10/2010. Judge signing: Honorable Michael C Hayden.

CORE TERMS: jump, recreational, latent, land use, bike, landowner, gap, summary judgment, immunity, dirt, speed, wanton, injury-causing, willful, trail, pitch, lead-in, user, parking lot, “appreciate”, creek, softies, owed, mountain, readily apparent, artificial, recreation, channel, posted, stump

COUNSEL: Noah Christian Davis, In Pacta PLLC, Seattle, WA, for Appellant(s).

Francis Stanley Floyd, Nicholas L. Jenkins, Floyd Pflueger & Ringer PS, Seattle, WA; Mary E. Mirante Bartolo, City of Seatac, Seatac, WA; Mark Sterling Johnsen, City of Seatac Legal Dept, Seatac, WA, for Respondent(s).

JUDGES: AUTHOR: Ann Schindler, J. WE CONCUR: Anne Ellington, JPT., C. Kenneth Grosse, J.

OPINION BY: Ann Schindler

OPINION

¶1 Schindler, J. — Jon Wilkerson challenges the decision on summary judgment to dismiss his lawsuit against the City of SeaTac based on the recreational land use immunity statute, RCW 4.24.200-.210. We affirm.

FACTS

¶2 The Des Moines Creek Trail Park is a 96-acre woodland preserve open to the public for recreational use. The City of SeaTac (City) owns and operates the portion of the park located within the City, 1 including dirt mounds in the park that bicyclists use as bike jumps. The dirt jumps, known as “the Softies,” are located about a quarter-mile off a paved trail in the park. The City did not create or maintain the dirt jumps.

1 The City of Des Moines and [*2] the Port of Seattle own and operate other portions of the park.

¶3 In June 2006, 30-year-old Jon Wilkerson moved from Arkansas to Kent, Washington to work as a physical therapist. Wilkerson had plans to go mountain biking at Whistler in British Columbia with friends in July. Wilkerson testified that he considered himself an “experienced mountain biker” and had previously used BMX 2 and mountain bikes to do ramp and dirt jumps.

2 (Bicycle motocross.)

¶4 About a week after moving to Kent, Wilkerson went to a bike shop to buy a new helmet. Wilkerson asked the bike shop manager “about nearby parks that had dirt jumps — where I could ride my bike and practice making jumps in anticipation of [the] bike trip to Whistler with friends.” The bike shop manager told Wilkerson about the Des Moines Creek Trail Park and the “BMX style dirt jump[s],” and “told [him] how to get to [the Softies].”

¶5 On June 21, Wilkerson drove to the Des Moines Creek Trail Park. Wilkerson arrived at the park between 5:00 and 6:00 p.m. and parked his Ford Expedition in the parking lot located at South 200th Street. Wilkerson left his cell phone in his car. Wilkerson testified that he went to the park that day to train and “work[] [*3] on jumps that I knew that I would need to be able to clear at Whistler. . . . I was working that day to prepare to do more advanced techniques at Whistler.”

¶6 After riding around the park for about 30 to 45 minutes on “single [bike] track trails,” Wilkerson testified that he followed the directions he received from the bike shop manager to get to the Softies. Wilkerson said he “rode down a ravine, crossed a creek, walked [his] bike up and the softies were on the right.” When he arrived at the Softies, no one else was there.

¶7 Wilkerson testified that he examined the dirt jumps and understood the importance of the “approach speed,” as well as the condition of the track and the height and pitch of the jumps. Wilkerson said that he rode his bike over the jumps to “try some of them out” before selecting a smaller “gap jump.” Wilkerson said he decided the other jumps “weren’t within my skill set” because they were “too steep” and “too close together,” and concluded the smaller gap jump was “within my skill set.”

¶8 The dirt jump Wilkerson selected contained “two mounds with a gap in between.” Wilkerson testified that he inspected the jump before attempting it, and rode down the approach to check [*4] the pitch and surface composition.

Q But you did check the jump out before you went off of it, correct?

A I did.

Q And, you rode down and actually, with the intention of checking it out before you went off of it, correct?

A I did.

Q And, you were looking for things like the pitch of the jump, correct?

A Yes.

Q You were looking to see if the composition of the surfaces was adequate, correct?

A Yes.

Q You were looking to see if the jump was safe before you went off of it, correct?

A Yes.

¶9 Wilkerson testified that he concluded “there was enough of a grade to [carry] me into [sic] with a moderate to fast amount of speed.” Wilkerson admitted that it had been at least a couple of years “since I’d done a gap jump.” But Wilkerson said that he had no concerns about his ability to accomplish the jump.

¶10 In his declaration in opposition to summary judgment, Wilkerson states he “reviewed” the jump, including “the pitch of the take-off jump itself and the size of the jump and the gap and thought everything looked ok,” but “did not take a practice ‘run in.'” The declaration states, in pertinent part:

14. I then rode over to a smaller jump (which had a crevice or drop in the middle) called a gap jump and felt that it was well within my “skill set”;

15. I then generally reviewed the jump, including the pitch of the take-off jump itself and the size of the jump and the gap and thought everything looked ok;

16. That is, looking at the jump itself, it looked fine for me to take;

17. I did not measure the gap width, nor the pitch of the jump nor the pitch of the landing;

… .

23. I also did not take a practice “run in” leading up to the jump because I had no reason to think that there was some danger to me from the approach to the jump or that the approach would be problematic or prevent me from clearing the jump.

¶11 Wilkerson testified that he “gauged the speed to be appropriate for the gap” and approached the jump “moderate to fast, the speed needed to get over the gap.” Wilkerson missed the jump and “[t]umbled forward” over the front of the bike. Wilkerson testified, in pertinent part:

On the back side of the jump for some reason my back wheel didn’t make it all the way over the berm of the back side of the jump. So, [*5] it impacted the top of the berm, rebounded and knocked me over the front of the bicycle.

¶12 Wilkerson hit the ground head-first and landed on his back five or six feet beyond the jump. Wilkerson was unable to move. Wilkerson called for help for some time before losing consciousness.

¶13 At about 1:00 a.m., a City employee reported seeing Wilkerson’s car in the parking lot. Two bicyclists found Wilkerson at about 11:00 a.m. and called 911. Emergency personnel immediately responded and transported Wilkerson to Harborview Medical Center. Wilkerson suffered from hypothermia and went into cardiac arrest. During “life-saving efforts,” Wilkerson’s lung was lacerated. Wilkerson successfully underwent surgery for the laceration. The doctors at Harborview diagnosed Wilkerson with a C4-C6 vertebra fracture. Wilkerson is quadriplegic.

¶14 After an assessment in Arkansas in September 2006, Wilkerson participated in the program at the Baylor Institute for Rehabilitation in Texas. During the assessment, Wilkerson said that although he was an experienced mountain biker, as he went over the jump, he came down “wrong” because he ” ‘was a bit out of practice’ ” and ” ‘a little too bold.’ ”

¶15 Wilkerson filed a lawsuit [*6] against the City alleging the City breached the duty to use reasonable care in failing to maintain the park and “allowing man-made jumps to remain despite the . . . inherent danger the jumps posed.” The complaint also alleged the City breached the duty to supervise the park and report Wilkerson’s vehicle “to authorities.” Wilkerson claimed the failure to report seeing his car in the parking lot caused him to suffer hypothermia and injury to his lungs. The City denied the allegations and asserted a number of affirmative defenses, including immunity under the recreational land use statute, RCW 4.24.200-.210.

¶16 The City filed a motion for partial summary judgment to dismiss the claim that the City breached the duty to remove the dirt jumps. The City argued that because there was no evidence of a known dangerous artificial latent condition, the claim was barred by the recreational land use statute.

¶17 Wilkerson argued there were genuine issues of material fact as to whether the approach to the gap jump was a known dangerous artificial latent condition. Wilkerson also argued that the City’s failure to remove, redesign, or maintain the dirt jumps was “willful and wanton conduct [that] rises to [*7] the level of intentional conduct.”

¶18 In support of his argument that the approach to the gap jump was a latent condition, Wilkerson submitted the declarations of Samuel Morris, Jr., a professional mountain bike racer; Lee Bridgers, the owner of a company that conducts mountain bike jumping clinics; and his own declaration. 3

3 In support of his assertion that the approach to the gap jump was a “known” and “dangerous” condition, Wilkerson submitted excerpts from the deposition of the City’s Acting Fire Chief and incident reports of bicycle accidents.

¶19 In his declaration, Wilkerson states that he did not “see[] or appreciate[] the S-curved, angled lead-in to the jump.” Morris states that in his opinion,

it was not the jump itself that caused Jon to crash, but the curvy nature of the lead-in, or approach, to the jump, which more probably than not reduced his speed enough to prevent him from successfully completing the jump. . . . While Jon testified that he reviewed the size of the gap and the pitch of the jump, what he did not consider and what a beginner to even an intermediate jumper would mostly likely not consider because of the subtleness is the curved approach leading into the jump and [*8] the effect that the approach would have on the ability of the rider to complete the jump. These conditions would not be apparent to a rider of Jon’s skill level.

¶20 Bridgers testified that the cause of the crash was the “lack of speed due to the twists and turns in the approach.”

[T]he curvy lead-in to the jump prevented Jon from successfully attaining the speed necessary to complete the jump and was the primary cause of Jon’s injury.

Bridgers stated that in his opinion, Wilkerson did not appreciate the S-curve approach.

While the S-curve after the berm is not visibly dramatic, it affects the direction, physics, and speed of the rider attempting to take the jump and therefore has a significant impact on the rider’s ability to successfully clear the jump, especially on a first attempt. This is something that Jon obviously did not notice or appreciate and which clearly had an impact on his ability to make the jump.

¶21 The court granted the motion for partial summary judgment. Even assuming the effect of the S-curve approach to the jump was not readily apparent to Wilkerson, the court concluded it was not a latent condition. The court ruled that as a matter of law, the inability to appreciate the [*9] risk does not constitute a latent condition.

So for purposes of the summary judgment, I am assuming that the trail, the approach leading to the jump was curved in some fashion such that it would have limited the speed of a biker who arrived at the jump site.

I am going to further conclude, for purposes of the summary judgment, that it would not have been readily apparent to the biker that he could not acquire sufficient speed to clear the jump.

[T]here is no testimony that you couldn’t see the path. The path was there. The path was not submerged; it was not invisible. Whether it was straight or curved, it was the path that one could see.

. . . .

[T]here are no cases where the courts have said you can look directly at it, you can see what is there to be seen, and the inability to appreciate the risk posed constitutes latency. I didn’t see any cases like that.

I find as a matter of law that the lead up, whether it was curved or straight, is not the latent condition required under the statute, and it does not abrogate the statutory immunity.

¶22 The court also concluded there was no evidence that the City acted with willful and wanton disregard for a danger posed by the Softies.

I would also suggest [*10] that there is no evidence here that would rise to the level of willful and wanton disregard, if indeed that is the standard in Washington.

I will accept for a summary judgment proposition that the city knew or should have known these jumps were out there, they knew or should have known that they were dangerous and there have been prior accidents, and that they did not go in and sign it or remov[e them i]s not the standard for recreational use immunity.

¶23 The “Order Granting Defendant SeaTac’s Motion for Summary Judgment Re: Recreational Use Immunity” dismisses the claim that “the City of SeaTac owed [Wilkerson] a duty to protect him from his failed mountain bike jump” at the Des Moines Creek Trail Park. The court denied Wilkerson’s motion for reconsideration.

¶24 The City then filed a motion for summary judgment dismissal of Wilkerson’s claim that the City breached the duty to supervise the park and report seeing Wilkerson’s vehicle in the parking lot. The City argued that the recreational land use statute and the public duty doctrine barred these claims.

¶25 Wilkerson argued the recreational land use statute did not apply to the cardiac and lung injuries he suffered as a result of remaining in [*11] the park overnight because he was no longer engaged in recreation. Wilkerson also argued that the City assumed a duty to users of the park to exercise reasonable care in patrolling the park.

¶26 The court granted summary judgment. The court ruled that the recreational land use statute barred Wilkerson’s claim that the City was liable for the injuries Wilkerson suffered as a result of the crash. The court’s oral ruling states, in pertinent part:

I mean to suggest that a landowner is immune from someone using their land for recreation, but if they get hurt, then a new duty arises to come take care of them and to use reasonable efforts to make sure they are safe after they are injured, as opposed to being safe before they are injured, really stretches it too far.

[T]o suggest the landowner has a duty not to protect the person from injury, but to treat them after they are injured, or to be alert to the fact of injury, even though they are not alert to prevent the injury, makes no sense.

So I am ruling that in the circumstances of having failed to detect him injured on site and failed to having brought medical services to him fast enough, the city is still acting in its capacity as landowner.

The [*12] “Order Granting Defendant SeaTac’s Motion for Summary Judgment Re: Duty to Rescue” dismisses Wilkerson’s claim that the City “owed him a duty to supervise and rescue him sooner.” 4

4 Wilkerson filed a motion to compel the City to produce discovery, which the court denied. Wilkerson appeals the order denying the motion to compel but does not assign error to the order or address it in the briefs. Accordingly, the issue is waived. RAP 10.3(a)(4); Hollis v. Garwall, Inc., 137 Wn.2d 683, 689 n.4, 974 P.2d 836 (1999).

ANALYSIS

¶27 Wilkerson contends the trial court erred in dismissing his negligence claims against the City under the recreational land use immunity statute, RCW 4.24.200-.210, and the court erred in concluding that the statute barred his claim for “hypothermia and cardiac and lung injuries.”

¶28 We review summary judgment de novo and consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Bulman v. Safeway, Inc., 144 Wn.2d 335, 351, 27 P.3d 1172 (2001). [*13] A party cannot rely on allegations in the pleadings, speculation, or argumentative assertions that factual issues remain. White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997).

¶29 The recreational land use statute, RCW 4.24.200-.210, grants immunity to landowners for unintentional injuries to recreational users of the land.

¶30 The statute modifies a landowner’s common law duty in order “to encourage landowners to open their lands to the public for recreational purposes.” Davis v. State, 144 Wn.2d 612, 616, 30 P.3d 460 (2001). Because the recreational land use statute is in derogation of common law, it is strictly construed. Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 437, 824 P.2d 541 (1992).

¶31 Under RCW 4.24.200, the purpose of the recreational land use statute is to

encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon. [5]

5 The legislature amended the statute several times between 2006 and 2012. Laws of 2006, ch. 212, § 6; [*14] Laws of 2011, ch. 53, § 1; Laws of 2011 ch. 171, § 2; Laws of 2011 ch. 320, § 11; Laws of 2012 ch. 15, § 1. The amendments are not pertinent to this appeal.

¶32 Under RCW 4.24.210, a landowner is immune from liability for unintentional injuries unless the injury is caused by a known dangerous artificial latent condition “for which warning signs have not been conspicuously posted.” RCW 4.24.210 states, in pertinent part:

(1) [A]ny public or private landowners . . . or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to, . . . bicycling, . . . without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

. . . .

(4)(a) Nothing in this section shall prevent the liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.

¶33 To establish the City was not immune [*15] from suit under RCW 4.24.210, Wilkerson must show the City charged a fee for the use of the land, the injuries were intentionally inflicted, or the injuries were sustained by reason of a known dangerous artificial latent condition for which no warning signs were posted. Davis, 144 Wn.2d at 616.

¶34 Here, there is no dispute that the Des Moines Creek Trail Park was open to the public for recreational purposes and no fee was charged. The parties dispute whether the injury-causing condition was latent. Each of the four elements of a known dangerous artificial latent injury-causing condition must be present in order to establish liability under the recreational land use statute. Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 920, 969 P.2d 75 (1998). “If one of the four elements is not present, a claim cannot survive summary judgment.” Davis, 144 Wn.2d at 616.

¶35 Wilkerson asserts there are genuine issues of material fact as to whether the S-curve lead-in was a latent condition, and whether a recreational user would recognize the danger of the S-curve approach. Wilkerson contends the S-curve “lead-in to the jump” caused his injuries.

¶36 For purposes of the recreational land use statute, RCW 4.24.210, [*16] “latent” means ” ‘not readily apparent to the recreational user.’ ” Ravenscroft, 136 Wn.2d at 924 (quoting Van Dinter v. City of Kennewick, 121 Wn.2d 38, 45, 846 P.2d 522 (1993)). In determining whether the injury-causing condition is latent, the question is not whether the specific risk is readily apparent but, instead, whether the injury-causing condition itself is readily apparent. Ravenscroft, 136 Wn.2d at 924. A landowner will not be held liable where a patent condition posed a latent, or unobvious, danger. Van Dinter, 121 Wn.2d at 46. Although latency is a factual question, when reasonable minds could reach but one conclusion from the evidence presented, summary judgment is appropriate. Van Dinter, 121 Wn.2d at 47.

¶37 Even viewing the evidence in the light most favorable to Wilkerson, as a matter of law, the S-curve lead-in was not a latent condition. At most, the S-curve approach is a patent condition that “posed a latent, or unobvious, danger.” Van Dinter, 121 Wn.2d at 46.

¶38 In Van Dinter, the Washington Supreme Court addressed the difference between a latent condition and a latent danger. In Van Dinter, Van Dinter struck his eye on a protruding metal antenna of a caterpillar-shaped [*17] playground toy located next to the grassy area at the park where he was engaged in a water fight. Van Dinter, 121 Wn.2d at 40. Van Dinter stated that “he did not realize someone on the grass could collide with any part of the caterpillar.” Van Dinter, 121 Wn.2d at 40. Van Dinter asserted “a condition is latent for purposes of RCW 4.24.210 if its injury-producing aspect is not readily apparent to the ordinary recreational user,” and argued that “while the caterpillar was obvious, its injury-causing aspect was not.” Van Dinter, 121 Wn.2d at 45.

¶39 The court disagreed with Van Dinter and held that “RCW 4.24.210 does not hold landowners potentially liable for patent conditions with latent dangers. The condition itself must be latent.” Van Dinter, 121 Wn.2d at 46. While the court expressly acknowledged that “it may not have occurred to Van Dinter that he could injure himself in the way he did,” the court concluded that “this does not show the injury-causing condition — the caterpillar’s placement — was latent. . . . The caterpillar as well as its injury-causing aspect — its proximity to the grassy area — were obvious.” Van Dinter, 121 Wn.2d at 46.

¶40 Here, Wilkerson’s experts testified that the [*18] danger posed by the S-curve approach was not “obvious” to “beginning to intermediate” bike jumpers.

[T]he S-curve . . . affects the direction, physics, and speed of the rider attempting to take the jump . . . . It is my opinion that the dangers posed by the S-curved lead-in to the jump were not obvious for [Wilkerson] and other beginning to intermediate jumpers. [6]

6 (Emphases added.)

¶41 Morris testified that it was unlikely that Wilkerson or other jumpers would “consider . . . the effect that the approach would have.”

While [Wilkerson] testified that he reviewed the size of the gap and the pitch of the jump, what he did not consider and what a beginner to even an intermediate jumper would most likely not consider because of the subtleness is the curved approach leading into the jump and the effect that the approach would have on the ability of the rider to complete the jump. [7]

7 (Emphases added.)

¶42 The testimony that Wilkerson did not “appreciate” the danger of the S-curve approach to the jump does not establish a latent condition. As in Van Dinter, at most, Wilkerson’s failure to “appreciate” the S-curve lead-in “shows that the present situation is one in which a patent condition posed a latent, [*19] or unobvious, danger.” Van Dinter, 121 Wn.2d at 46.

¶43 The cases Wilkerson relies on, Ravenscroft and Cultee v. City of Tacoma, 95 Wn. App. 505, 977 P.2d 15 (1999), are distinguishable. In Ravenscroft, a man was injured when the boat he was riding in hit a rooted tree stump submerged in a channel of water that formed part of a dam reservoir. Ravenscroft, 136 Wn.2d at 915. The driver of the boat testified that “he saw nothing that would indicate the presence of any submerged objects or hazards in the direction he was traveling.” Ravenscroft, 136 Wn.2d at 916. Other witnesses testified that other boats had hit the stumps. Ravenscroft, 136 Wn.2d at 925.

¶44 The court identified the injury-causing condition as the “man-created water course, containing a submerged line of tree stumps” that was “created by [the Washington Water Power Company] cutting down trees, leaving stumps near the middle of a water channel, then raising the river to a level which covered the stumps.” Ravenscroft, 136 Wn.2d at 923. The court concluded that summary judgment was not appropriate because “[t]he record does not support a conclusion that the submerged stumps near the middle of the channel were obvious or visible as [*20] a matter of law.” Ravenscroft, 136 Wn.2d at 926.

¶45 In Cultee, a five-year-old girl rode a bicycle on a road with an eroded edge that was partially flooded by the Hood Canal tidal waters. Cultee, 95 Wn. App. at 509. The girl fell into the water and drowned at a point where the road and the eroded edge were covered by two to four inches of muddy water and the adjacent fields were covered with several feet of water. Cultee, 95 Wn. App. at 510. The court held there were material issues of fact about whether the condition that killed the girl was “the depth of the water alone, or a combination of the muddy water obscuring the eroded edge of the road and an abrupt drop into deep water;” and whether ” ‘recreational users’ would have been able to see the edge of the road, given that it was eroded and covered with a two-to-four-inch layer of muddy water.” Cultee, 95 Wn. App. at 523.

¶46 Wilkerson also argues that the trial court erred in concluding the recreational land use statute bars his claim for cardiac and lung injuries. Wilkerson argues the statute does not apply to the injuries he suffered after he missed the jump because he was not “engaged in recreation” or “using” the land when he suffered [*21] cardiac and lung injuries.

¶47 Wilkerson relies on Wisconsin law in support of his argument that the recreational land use statute does not apply to secondary injuries. But unlike RCW 4.24.210(1), the Wisconsin statute predicates landowner immunity on recreational use. The Wisconsin statute states, in pertinent part: “[N]o owner . . . is liable for . . . any injury to . . . a person engaging in recreational activity on the owner’s property.” Wis. Stat. § 895.52(2)(b). By contrast, RCW 4.24.200-.210 grants a broader immunity to landowners “who allow members of the public to use [their lands] for the purposes of outdoor recreation.” RCW 4.24.210(1); see also Gaeta v. Seattle City Light, 54 Wn. App. 603, 608-10, 774 P.2d 1255 (1989) (because landowner “open[ed] up the lands for recreational use without a fee,” and thereby “brought itself under the protection of the immunity statute,” landowner was immune from liability regardless of whether “a person coming onto the property may have some commercial purpose in mind”).

¶48 Next, Wilkerson argues that the City’s willful and wanton or intentional conduct precludes immunity under the recreational land use statute because the City knew that other bicyclists [*22] had been injured. Jones v. United States, 693 F.2d 1299 (9th Cir. 1982), does not support Wilkerson’s argument.

¶49 In Jones, the plaintiff went to Hurricane Ridge located in Olympic National Park as part of a church-sponsored event. Jones, 693 F.2d at 1300. The plaintiff was severely injured while riding on an inner tube at Hurricane Ridge. Jones, 693 F.2d at 1300. The plaintiff sued the church and the federal government. Jones, 693 F.2d at 1300. The jury returned a verdict against the church but found the plaintiff was also negligent. Jones, 693 F.2d at 1301. The trial court entered judgment in favor of the federal government under Washington’s recreational land use statute on the grounds that the plaintiff did not establish the government’s conduct was willful or wanton. Jones, 693 F.2d at 1300-01. 8

8

The evidence established that the extent of the danger was not actually or reasonably known to the Government. Its failure to put up signs and ropes was negligence which proximately contributed to the plaintiff’s accident but it did not constitute “an intentional failure to do an act” nor was it “in reckless disregard of the consequences.”

Jones, 693 F.2d at 1304 (internal quotation marks [*23] omitted).

¶50 On appeal, the plaintiff argued the court erred in concluding the government’s conduct was not willful or wanton under the recreational land use statute. Jones, 693 F.2d at 1301. The plaintiff asserted that the government’s failure to ” ‘put up signs and ropes’ ” was deliberate and the government ” ‘knew or should have known’ ” of the dangerous condition. Jones, 693 F.2d at 1304.

¶51 The Ninth Circuit affirmed. Jones, 693 F.2d at 1305. The Court distinguished cases that involved specific acts of the government that create a dangerous condition, and held that ” ‘[w]anton misconduct is not negligence since it involves intent rather than inadvertence, and is positive rather than negative.’ ” Jones, 693 F.2d at 1305 n.21 (quoting Adkisson v. City of Seattle, 42 Wn.2d 676, 687, 258 P.2d 461 (1953)). Because the government did not create the injury-causing condition, and the ” ‘impact of tubing and the inherent dangers . . . were not apparent to the public or the Government,’ ” the Court concluded the failure to put up signs or ropes was not intentional and willful or wanton conduct under the recreational land use statute. Jones, 693 F.2d at 1305.

We agree with the district court that, [*24] “While it was negligence on the Government’s part not to put up signs or ropes, its failure to do so does not rise to the status of willful and wanton conduct under the law of Washington.”

Jones, 693 F.2d at 1305.

¶52 Here, as in Jones, there is no dispute that the City did not create the dirt jumps or S-curve approach. While the alleged failure of the City to “bulldoze the Softies” or post warning signs may constitute negligence, it is not willful or wanton conduct under the recreational land use immunity statute.

¶53 Wilkerson also claims the City assumed a duty to supervise and patrol the park. Wilkerson points to the sign the City posted in the parking lot and the failure to take some action after the City employee saw his car in the parking lot at 1:00 a.m. The sign posted at the entry to the Des Moines Creek Trail Park parking lot stated:

Park is patrolled by City of SeaTac Police Department . . .

Park is operated by City of SeaTac Parks & Recreation Department . . .

. . . .

Park is closed from dusk to dawn unless otherwise posted

. . . .

Parking . . . is only permitted during park hours.

. . . .

Unauthorized vehicles will be impounded.

¶54 But in order to establish liability, Wilkerson must show there [*25] is a duty owed to him and not a duty owed to the public in general. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001).

“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).”

Babcock, 144 Wn.2d at 785 (quoting Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988) 9). Because the record shows that the City did not assume a duty or make express assurances to Wilkerson, the public duty doctrine bars his claim that the City owed him a duty of care. Babcock, 144 Wn.2d at 785-86.

9 (Internal quotation marks and citation omitted.)

¶55 We affirm dismissal of Wilkerson’s lawsuit against the City.

Grosse, J., and Ellington, J. Pro Tem., concur.

After modification, further reconsideration denied March 27, 2013.


Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation

The grandparents were charged to camp at a city park, the plaintiffs, grandchildren, were not charged to be in the park so the Nebraska Recreational use act provides immunity.

Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

State: Nebraska, Supreme Court of Nebraska

Plaintiff: John Garreans, Jr., a minor, by his next friend and father, John Garreans, Sr., et al.

Defendant: City of Omaha, a municipal corporation

Plaintiff Claims: failed to observe, inspect, and remove the 55-gallon drum; had failed to warn the public of the dangerous nature of the drum; was guilty of willful negligence

Defendant Defenses: Recreational Use Statute

Holding: for the defendant

Year: 1984

This is an older case. However, it has been followed and clarifies some of the issues concerning recreational use law. The grandparents of one of the plaintiff’s went camping in the city park. They paid a fee which the Supreme Court defined as a fee to “park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities…” Anyone else visiting the park, including the plaintiff entered the park for no charge.

The plaintiffs were the grandson, of the grandparents who paid the fee. The plaintiff grandchildren had not paid any fee nor had his parents to enter and play in the park. While the children were there they had been given firecrackers to use by his father. A 55-gallon drum that was obviously not a trash barrel was sitting next to a trash barrel.

The drum was closed except for a plug which was removed on the top of the drum. The drum had a flammable sign on its side. The plaintiffs were using the drum to set the firecrackers on and light them. One child dropped a lit firecracker into the drum which exploded causing injuries to the plaintiff.

The trial court found for the plaintiff and found the city, which owned the park had:

…failed to properly supervise the area around camper pad No. 25; had failed to observe, inspect, and remove the 55-gallon drum; had failed to warn the public of the dangerous nature of the drum; was guilty of willful negligence; and that the plaintiffs were not contributorily negligent.

The defendant city appealed.

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

The Nebraska Recreational Use statute has been re-written so the sections quoted in this case may not be accurate today. The court quoted:

Neb. Rev. Stat. § 37-1002 (Reissue 1978) provides: “Subject to the provisions of section 37-1005, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.”

The new Nebraska Recreational Use statute states:

§ 37-731. Landowner; duty of care.

Subject to section 37-734, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

The court then focused on the term charge. The plaintiff argued the grandparents had paid a charge. Therefore, the recreational use statute did not apply.

However, the court found the money paid by the grandparents was not to enter on the land, but to access specific services.

The evidence in the present case is undisputed that no charge was made by the city for the right to enter N.P. Dodge Park. Those entering the park paid no admission fee.  Charges were made for the right to park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities.  Payment of the fee by Mrs. Stoops did not entitle her to a greater right to use any of the park’s other facilities than that had by the general public. 

The court looked at other decisions, which had decided the fee issue based on the same analysis.

Georgia

…a fee paid to park a vehicle in a park was held not to constitute a charge for admission, as no charge was made upon those who entered on foot.  [Washington], wherein a fee for use of an inner tube was held not to be a charge within the contemplation of Washington’s recreational use statute.

Ohio

It is conceded that the Mosses and decedent O’Neal did not pay a fee ‘to enter’ the parks; rather, the consideration paid went for the purchase of gas, food and for the rental of a canoe.

Additionally, the plaintiff’s and their parents did not pay to enter on the land. The fee was paid by a grandparent, not the plaintiff. The grandparents entered the park at a different time and now with their children or grandchildren.

The next issue was whether the actions of the city in managing the park and not finding or removing the barrel were willful or wanton. Under Nebraska law willful and wanton is defined as:

In order for an action to be willful or wanton, the evidence must show that one acted with actual knowledge that a danger existed and that he intentionally failed to act to prevent the harm which was reasonably likely to result.  The term imparts knowledge and consciousness that injury is likely to result from the act done or omission to act, and a constructive intention as to the consequences.  To constitute willful misconduct there must be actual knowledge, or its legal equivalent, of the peril to be apprehended, coupled with a conscious failure to avert injury.  To constitute willful negligence the act done or omitted must be intended or must involve such reckless disregard of security and right as to imply bad faith.  Wanton negligence has been said to be doing or failing to do an act with reckless indifference to the consequences and with consciousness that the act or omission would probably cause serious injury.

The court found the city had acted correctly because the barrel had not been found by the city in its normal operation. If the city had found the barrel, the city stated the barrel would have been removed. The court then stated the not only was the city not willful and wanton, but the plaintiffs were contributorily negligent by their actions.

Contributory negligence has been replaced by joint and several liability. At the time, being found contributorily negligence would have been a complete bar to recovery by the plaintiffs. This analysis was based on the law which prohibited the use of fireworks by the city and by park regulation.

The court reversed the trial court decision finding for the city.

So Now What?

This is an old decision which still stands today and has been followed in numerous courts, which define their statutes this way. If you are a landowner whose land is open for recreation, this may provide a narrow window where you can open the land for free and yet recover some of your costs for extra services you may provide for people who wish to pay for those services.

What do you think? Leave a comment.

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Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

John Garreans, Jr., a minor, by his next friend and father, John Garreans, Sr., et al., Appellees, v. City of Omaha, a municipal corporation, Appellant

No. 82-814

SUPREME COURT OF NEBRASKA

216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

February 17, 1984, Filed

COUNSEL: Herbert M. Fitle, City Attorney, James E. Fellows, and Timothy M. [***3] Kenny, for appellant.

Thomas F. Dowd and John P. Fahey of Dowd & Fahey, and J. Patrick Green, for appellees.

JUDGES: Krivosha, C.J., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ. Shanahan, J., dissenting. White and Grant, JJ., join in this dissent.

OPINION BY: BOSLAUGH

OPINION

[*488] [**311] This is an action under the Nebraska Political Subdivisions Tort Claims Act against the City of Omaha, Nebraska, to recover damages for the injuries sustained by the plaintiffs, John Garreans, Jr., and Vince Hartline, in an explosion which occurred [**312] at N.P. Dodge Park on July 5, 1980, while the plaintiffs were visiting with their grandparents, Ray and Evelyn Stoops, at the park. The petition included a second cause of action for the medical expenses incurred by the parents of the plaintiffs as a result of the explosion. At the time of the accident both plaintiffs were 12 years of age. The action was brought by their fathers as the next friends of the plaintiffs. The defendant has raised no issue in this court concerning joinder.

The evidence shows that on July 3, 1980, Ray and Evelyn Stoops entered N.P. Dodge Park in Omaha, Nebraska, with their camper, intending [***4] to camp in the park over the 3-day holiday. Evelyn Stoops paid [*489] a $ 10.50 fee at the concessionaire’s office for the use of camper pad No. 25 for the 3-day period. Electrical service was provided at that pad. While they were setting up camp, the Stoopses noticed a black, 55-gallon drum nearby. The black drum was in addition to a trash barrel at the pad, which was a 55-gallon drum from which the top had been removed. Trash barrels, which consisted of 55-gallon drums from which the tops or lids had been removed, were distributed throughout the park, including the camping area. These drums were painted various colors and were labeled “TRASH” on the side.

Printing or lettering on the side of the black drum indicated that it had contained an antifreeze compound. A red or orange label, approximately 4 inches square, was affixed to the top of the drum. The label bore the legend “Flammable Liquid” printed below a representation of a fire or flames.

The lid or top of the black drum was intact, and the drum was closed except for a small opening, approximately 1 inch in diameter, from which a plug had been removed. There is no evidence that the city placed the black drum [***5] in the park, and a search of city records showed that the city had not purchased the black drum. The plaintiffs contended that the city was negligent in failing to remove the drum from the park.

On July 5, 1980, the plaintiffs entered the park to visit with their grandparents at camper pad No. 25. In accordance with park policy no admission fee was charged them. Both boys had been given firecrackers by their fathers. The boys used a cigarette lighter to light the firecrackers, and used the black drum as a shelf for their activities. The explosion occurred when they dropped a lighted firecracker into the black drum through the 1-inch hole in the lid. The drum exploded, spraying flammable liquid on the boys. John received severe burns on his [*490] lower extremities. Vince suffered injuries to his nose and arm, and was also burned.

The trial court found that the city had failed to properly supervise the area around camper pad No. 25; had failed to observe, inspect, and remove the 55-gallon drum; had failed to warn the public of the dangerous nature of the drum; was guilty of willful negligence; and that the plaintiffs were not contributorily negligent. Judgment was entered [***6] in the amount of $ 243,190.57 for John Garreans, Jr., and in the amount of $ 104,726.95 for Vince Hartline.

One of the principal issues in the case was whether the Recreation Liability Act was applicable. The city assigns as error the failure of the court to properly apply the standard of care found in the Recreation Liability Act.

Neb. Rev. Stat. § 37-1002 (Reissue 1978) provides: [HN1] “Subject to the provisions of section 37-1005, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.”

Neb. Rev. Stat. § 37-1005 (Reissue 1978) provides: [HN2] “Nothing in sections 37-1001 to 37-1008 limits in any way any liability which otherwise exists (1) for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, or (2) for injury suffered in any case where the owner of land charges the [**313] person or persons who enter or go on the land. Rental paid by a group, organization, corporation, the state or federal government shall not be deemed a charge made [***7] by the owner of the land.”

The act thus provides that an owner of a recreational facility is not liable for ordinary negligence unless a fee was charged for the right to enter the facility, although the owner may be liable for certain willful actions.

The trial court found that the fee paid by Evelyn [*491] Stoops for the use of the camper pad constituted a “charge” for entry upon land and that the actions of the city amounted to “willful negligence.”

Findings of fact made by the district court in cases brought under the Political Subdivisions Tort Claims Act will not be disturbed on appeal unless clearly wrong. Studley v. School Dist. No. 38, 210 Neb. 669, 316 N.W.2d 603 (1982); Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981).

The city through its operation of N.P. Dodge Park provides camping, picnic, and sports facilities, and the park is a “recreational facility” within the meaning of the act. Neb. Rev. Stat. § 37-1008 (Reissue 1978) [HN3] provides in part: “(3) the term recreational purposes shall include, but not be limited to, any one or any combination of the following: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, [***8] nature study, water skiing, winter sports, and visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites, or otherwise using land for purposes of the user.” See Watson v. City of Omaha, supra.

The term “charge” is defined in § 37-1008: “(4) the term charge shall mean the amount of money asked in return for an invitation to enter or go upon the land.”

The clear meaning of this statute is that in order to constitute a charge, any moneys paid must be paid for the right to enter the facility. [HN4] Where the language of a statute is plain, direct, and unambiguous, no interpretation is needed, and the court is without authority to change such language. County of Douglas v. Board of Regents, 210 Neb. 573, 316 N.W.2d 62 (1982); State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981).

The evidence in the present case is undisputed that no charge was made by the city for the right to enter N.P. Dodge Park. Those entering the park paid no admission fee. Charges were made for the right to park a camper on a pad, for the right to [*492] pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment [***9] of the fee by Mrs. Stoops did not entitle her to a greater right to use any of the park’s other facilities than that had by the general public. We conclude that the fee paid by Evelyn Stoops was not a charge for entry upon the land but was a fee paid for the right to park a camper upon a specific pad.

This conclusion has been reached by other courts faced with similar issues. In Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969), a fee paid to park a vehicle in a park was held not to constitute a charge for admission, as no charge was made upon those who entered on foot. See, also, Jones v. United States, 693 F.2d 1299 (9th Cir. 1982), wherein a fee for use of an inner tube was held not to be a charge within the contemplation of Washington’s recreational use statute.

In Moss v. Dept., 62 Ohio St. 2d 138, 142, 404 N.E.2d 742, 745 (1980), the Ohio Supreme Court stated: “R.C. 1533.18(B) defines a ‘recreational user’ as one who has permission to enter upon ‘premises’ without the payment of a fee or consideration. It is conceded that the Mosses and decedent O’Neal did not pay a fee ‘to enter’ the parks; rather, the consideration paid went for [***10] the purchase of gas, food and for the rental of a canoe. Nor was this a situation wherein the state attempted to circumvent liability by charging fees for the use of all facilities, in essence charging an entrance fee, although not labelling it as such. It is undisputed that the Mosses and decedent [**314] O’Neal could have brought the same items to the parks that they purchased or rented while there, and still have made use of the park facilities. Consideration should not be deemed given under R.C. 1533.18(B) unless it is a charge necessary to utilize the overall benefits of a recreational area so that it may be regarded as an entrance or admittance fee. Appellants’ contention is without merit.”

[*493] Moreover, the fee for use of camper pad No. 25 was paid by Evelyn Stoops and not by the plaintiffs. The plaintiffs therefore were nonpaying, recreational users of the park facilities and thus are not entitled to recover for injuries not caused by the city’s willful actions. See Garfield v. United States, 297 F. Supp. 891 (W.D. Wis. 1969).

Since the plaintiffs did not pay a charge to enter the park, the next issue which we consider is whether the evidence will support [***11] a finding that the city was guilty of a “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” A review of the evidence in light of the applicable law warrants only the conclusion that the actions of the city were not willful or malicious. The finding of the trial court on this issue is not supported by the evidence.

[HN5] In order for an action to be willful or wanton, the evidence must show that one acted with actual knowledge that a danger existed and that he intentionally failed to act to prevent the harm which was reasonably likely to result. The term imparts knowledge and consciousness that injury is likely to result from the act done or omission to act, and a constructive intention as to the consequences. To constitute willful misconduct there must be actual knowledge, or its legal equivalent, of the peril to be apprehended, coupled with a conscious failure to avert injury. To constitute willful negligence the act done or omitted must be intended or must involve such reckless disregard of security and right as to imply bad faith. Wanton negligence has been said to be doing or failing to do an act with reckless indifference [***12] to the consequences and with consciousness that the act or omission would probably cause serious injury. 57 Am. Jur. 2d Negligence §§ 101-105 (1971).

In Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42 (1928), a workmen’s compensation case, the court stated: [HN6] “[W]ilful negligence may be defined [*494] as (1) a deliberate act; or (2) such conduct as evidenced reckless indifference to safety. As a statutory term it involves more than want of ordinary care. It implies a rash and careless spirit, not necessarily amounting to wantonness, but approximating it in a degree, a willingness to take a chance.” (Syllabus of the court.)

In Roberts v. Brown, 384 So. 2d 1047, 1048 (Ala. 1980), the court said: [HN7] “‘Wantonness has been defined as the conscious doing of some act or the omission of some duty which under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known [***13] duty which produced the result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277; Johnson v. Sexton [277 Ala. 627, 173 So.2d 790], supra.’ Lewis v. Zell, 279 Ala. 33, 36, 181 So.2d 101 (1965).”

In Ewing v. Cloverleaf Bowl, 20 Cal. 3d 389, 402, 572 P.2d 1155, 1161, 143 Cal. Rptr. 13, 20 (1978), the court stated: [HN8] “‘[W]illful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences.’ ( Williams v. Carr, supra, 68 Cal.2d 579 584 [440 P.2d 505, 509, 68 Cal. Rptr. 305, 309 (1968)].) ‘If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an [**315] extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of the mind of the actor and his actual concern for the rights of others, we call it willful misconduct. . . .'”

In Jones v. United States, 693 F.2d 1299 (9th Cir. [*495] 1982), the court addressed [***14] the issue of what constitutes willful or wanton misconduct under Washington’s recreational use statute. The court held that the defendant must act or fail to act with actual knowledge of the hazard in order to be held liable under the statute.

The record does show that park employees did not observe the barrel on their routine trips through the park. The employees testified that had they noticed the barrel, they would have removed it.

The failure to observe the barrel may have been ordinary negligence in that the city in the exercise of due care “should have known” of the existence of a danger, but that does not amount to willful misconduct. An actor cannot act willfully in failing to remove a danger when he has no knowledge of it.

The city has also assigned as error the finding of the trial court that the plaintiffs were not guilty of contributory negligence. [HN9] An actor is contributorily negligent if he breaches the duty imposed upon him by law to protect himself from injury; if his actions concur and cooperate with actionable negligence of the defendant; and if his actions contribute to his injuries as a proximate cause. Stephen v. City of Lincoln, 209 Neb. 792, 311 N.W.2d [***15] 889 (1981). A child is required to exercise that degree of care which a person of that age would naturally and ordinarily use in the same situation under the same circumstances. Huff v. Ames, 16 Neb. 139, 19 N.W. 623 (1884); Camerlinck v. Thomas, 209 Neb. 843, 312 N.W.2d 260 (1981).

Although we have concluded that no “willful or malicious” negligence existed on the part of the city, we believe the evidence in this case shows that the plaintiffs were contributorily negligent sufficient to bar their recovery as a matter of law. The finding of the trial court to the contrary was clearly wrong.

The use of firecrackers in the city of Omaha and within the park was prohibited by ordinance, as well as by park regulation. The plaintiffs had been [*496] warned by their parents that fireworks were dangerous and that they should be careful when using them. The plaintiffs testified that they were aware of the danger involved in using fireworks. The degree of care required increases when an actor is dealing with a dangerous activity such as exploding firecrackers. See Martinez v. Hoveling, 184 Neb. 560, 169 N.W.2d 428 (1969). Despite these warnings, the evidence is that [***16] the plaintiffs were lighting firecrackers above the opening in the drum and dropping lighted firecrackers into the drum.

Although there is conflicting testimony with regard to whether the boys noticed the “flammable” marking on the drum, the label was plainly visible, and the plaintiffs testified that they understood what the term “flammable” meant. In the exercise of proper care the boys should have seen the warning label on the top of the drum upon which they were lighting firecrackers. Moreover, they should have known that dropping lighted firecrackers into the drum created an unreasonable risk of explosion.

In the following cases the actions of children with regard to their use of firecrackers was held to be contributory negligence: Thornton v. Ionia Free Fair Association, 229 Mich. 1, 200 N.W. 958 (1924) (14-year-old, who had experience with firecrackers, held negligent in setting off firecrackers he found at fairgrounds); Mathews v. City of Albany, 36 Cal. App. 2d 147, 97 P.2d 266 (1939) (12-year-old who had knowledge of properties of fireworks held contributorily negligent); Shelanie v. National Fireworks Association, 487 S.W.2d 921 (Ky. App. 1972) (14-year-old [***17] who admitted he knew and had been warned about dangers of fireworks held contributorily negligent).

[**316] The judgment of the district court is reversed and the cause remanded with directions to dismiss the petition.

Reversed and remanded with directions.

DISSENT BY: SHANAHAN

DISSENT

[*497] Shanahan, J., dissenting.

The majority opinion misconstrues the Recreation Liability Act, Neb. Rev. Stat. §§ 37-1001 through 37-1008 (Reissue 1978). Section 37-1001 states: “The purpose of sections 37-1001 to 37-1008 is to encourage owners of land to make available to the public land and water areas for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.” The legislative history of the Recreation Liability Act and numerous interpretative decisions by courts of states having statutes similar to the Nebraska act compel the conclusion that the act does not apply to the present case. The Recreation Liability Act is designed to encourage public access to and recreational use of privately held undeveloped lands. To induce the private landowner’s permission [***18] for such public use, the Legislature has promised reduced exposure to liability for injuries occurring in recreational areas opened to the public. See, Tallaksen v. Ross, 167 N.J. Super. 1, 400 A.2d 485 (1979); Harrison v. Middlesex Water Company, 158 N.J. Super. 368, 386 A.2d 405 (1978); Michalovic v. Racing Assn, 79 A.D.2d 82, 436 N.Y.S.2d 468 (1981); Johnson v. Stryker Corp., 70 Ill. App. 3d 717, 388 N.E.2d 932 (1979); Cedeno v. Lockwood, Inc., 250 Ga. 799, 301 S.E.2d 265 (1983). “The purpose of this [recreational use legislation] is to limit the liability of private landowners, thereby encouraging them to make their property available for public recreation. . . . Thus, there is an objective basis for the aim of recreational use acts: to promote increased public access to private lands by reducing the liability of landowners and occupiers.” Barrett, Good Sports and Bad Lands: The Application of Washington’s Recreational Use Statute Limiting Landowner Liability, 53 Wash. L. Rev. 1, 3-4 (1977). By the Recreation Liability Act the state avoids expensive acquisition of considerable land for [*498] public recreational use, that is, state-owned or -leased [***19] areas, and in return grants restricted or limited liability to private landowners providing areas for public recreation. Consequently, the question of negligence in operating a city park is not within the purview of the Recreation Liability Act. Putting aside the particular situation involved in this case, patrons of public parks should be alert to the effect of the majority opinion and its rule regarding care required in operating a municipal park, i.e., responsibility for injury caused only by willful or malicious failure to protect the public admitted without charge to any city park.

Without conceding applicability of the Nebraska Recreation Liability Act to the present case, we disagree with other aspects of the majority opinion.

There were 46 camper pads within the city park. Ray Stoops, grandfather of the plaintiffs, paid $ 10.50 to park his trailer on camper pad No. 25. The fee or charge entitled the Stoopses to 3 days’ occupancy of the camper pad, namely, until July 6, according to registration receipt No. 6268 issued by the park caretaker for pad No. 25. Also, in exchange for the fee, the city provided Stoops with electrical service for his camper pad, or, as the city [***20] superintendent of parks testified, Stoops was “allowed to plug into the electrical stanchion that’s at that particular pad for his trailer.” Electrical service was not available to everyone entering the park but was provided only to those paying for particular camper pads. As testified by city park employees, the superintendent of parks, district foreman, and caretaker for the park, Stoops had “exclusive possession” of pad No. 25, for, as the superintendent of parks testified, “That’s the whole intent.” The district park foreman acknowledged that when a person “rented” a pad, that person was entitled to exclusive use to the extent that, upon request by the paying occupant of the pad, park personnel would [**317] remove any unwanted or unauthorized person intruding upon the camper pad. [*499] If those efforts of park personnel were unsuccessful, police would be summoned to remove the unwanted intruder. As described by the park caretaker: “I would call the cruiser.” The park caretaker also testified there was no restriction regarding visitors to Stoops’ camper pad, including visits by Stoops’ grandchildren, which was “consistent with the fee that he paid.”

The majority opinion [***21] acknowledges that Stoops paid “a fee . . . for the right to park a camper upon a specific pad.” Although the majority feels that the nature of negligence under the Recreation Liability Act turns only on the presence or absence of a charge for admission, an admission fee is not the sole determinant regarding the type or degree of negligence required for liability under the act. The March 26, 1965, Committee Statement on L.B. 280 (Recreation Liability Act), of the Agriculture and Recreation Committee, contains the following: “The act provides no inherent limitations on liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, or for injury suffered in any case when a charge is made unless that charge be in the nature of rent.” (Emphasis supplied.) Stoops’ use and occupancy of the camper pad included benefits and rights not enjoyed by the general public admitted to the park, and even included exclusion of the public from the camper pad, if Stoops saw fit. Stoops acquired such benefits and rights by payment of the fee or charge not required of the general public for admission to the park. In the final analysis, and by [***22] any reasonable definition or construction, the charge paid by Stoops was rent, that is, consideration or compensation “paid for use or occupation of property.” Black’s Law Dictionary 1166 (5th ed. 1979). See, Modular Concepts, Inc. v. So. Brunswick Twp., 146 N.J. Super. 138, 369 A.2d 32 (1977); Rosewood Corp. v. Transamerica Ins., 57 Ill. 2d 247, 311 N.E.2d 673 (1974); Whiting Paper Co. v. Holyoke Water Power [*500] Co., 276 Mass. 542, 177 N.E. 574 (1931); White Roofing Company v. Wheeler, 39 Ala. App. 662, 106 So. 2d 658 (1957); Kennedy v. Boston-Continental Nat. Bank, 11 F. Supp. 611 (D. Mass. 1935); Young v. Home Telephone Co., 201 S.W. 635 (Mo. App. 1918). “Charge,” within the Recreation Liability Act, includes not only payment for admission to a recreational area but also the charge paid for the use or occupancy of a site within the recreational area. The Recreation Liability Act was clearly intended to preserve rights of persons injured by ordinary negligence of the landowners charging rent as in the case now before us.

As one of the grounds for denying recovery by the plaintiffs, the majority states: “Moreover, the fee for use of camper pad No. [***23] 25 was paid by Evelyn Stoops [plaintiffs’ grandmother] and not by the plaintiffs.” Lurking within the majority opinion is the requirement of privity — liability dependent upon a precedent contractual relationship between the injured person and the negligent tort-feasor. “At one time a showing of privity was considered necessary to occasion liability for negligence, but the courts have been getting away from that doctrine and many have entirely repudiated and discarded it; and under the modern doctrine liability is based on foreseeability rather than privity.” 65 C.J.S. Negligence § 4(11) at 502 (1966). Justice Cardozo, almost 70 years ago, rejected the condition or requirement of privity in a product liability suit for negligence, when he stated in MacPherson v. Buick Motor Co., 217 N.Y. 382, 390, 394, 111 N.E. 1050, 1053-54 (1916): “We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. . . . [F]oresight of the consequences involves the creation of a duty.” As expressed in Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86, 199 N.E.2d 769, 779 (1964): “It [***24] is axiomatic that every person owes to all others a duty to exercise ordinary [*501] care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and that such duty does not depend upon contract, [**318] privity of interest or the proximity of relationship, but extends to remote and unknown persons.” See, also, Webel v. Yale University, 125 Conn. 515, 7 A.2d 215 (1939); cf., McKinley v. Slenderella Systems of Camden, N.J., Inc., 63 N.J. Super. 571, 165 A.2d 207 (1960); Robinson v. Colebrook Guaranty Bank, 109 N.H. 382, 254 A.2d 837 (1969). Today, most courts adhere to the rule that duty as an element of negligence is based not on privity but on foreseeability that harm may result if care is not exercised. See, Harvard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974); Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941); cf. J’Aire Corp. v. Gregory, 24 Cal. 3d 799, 598 P.2d 60, 157 Cal. Rptr. 407 (1979). “The duty of vigilance to prevent injury has its source in the law applicable to human relations rather than in a narrow conception of privity.” 57 Am. Jur. 2d Negligence [***25] § 37 at 385 (1971). In the case before us it was foreseeable that family members, including the Stoopses’ grandchildren, would be visiting Ray and Evelyn Stoops at their trailer. This foreseeability resulted in the city’s duty to use reasonable care in protecting Stoops’ visitors, namely, guarding against injuries caused by hazards such as the barrel bomb on pad No. 25. It is some small solace that the explosion did not launch the trailer from the pad. “The rule of reasonable care under the circumstances could not limit the conduct of Robinson Crusoe as he was first situated. But as soon as he saw the tracks in the sand, the rule began to have vitality. He then had notice that there might be other persons on the island, and this knowledge of their presence made it his duty as a reasonable man to use reasonable care to the end that no act of his should injure them.” Huckabee v. Grace, 48 Ga. App. 621, 628, 173 S.E. 744, 749 (1934). Footprints, camper pads, and trash barrels; [*502] the result is the same. At sea on privity, Nebraska jurisprudence will find itself on an island without even Crusoe.

Established park policy called for removal of any barrel not placed in [***26] the park by the city. The city had no black barrels as a part of the trash collection system for the park. (On July 5, after the explosion and in front of the caretaker’s house in the park, an arson investigator for the Omaha Police Department found a similar “55-gallon drum, trash-can” bearing a precaution about contents with an “extremely high flash point.”) City employees made frequent trips in the area of pad No. 25 and daily removed trash from the other, differently colored barrel sitting inches from the black barrel. The city’s activity, or more aptly the city’s inactivity, and the barrel’s continued presence at pad No. 25 would lead anyone to conclude there was nothing dangerous in that setting. As testified by Evelyn Stoops, grandmother of the plaintiffs: “Anything in the park is supposed to be safe . . . .” Under the circumstances one would reasonably believe and rely that the city had provided a safe park and not a dump for a discarded, dangerous barrel containing combustible material. “‘In determining the sufficiency of the evidence to sustain a judgment, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved [***27] in his favor and he is entitled to the benefit of every inference that can reasonably be deduced from the evidence.’ [Citations omitted.] Moreover, under the Political Subdivisions Tort Claims Act, section 23-2406, R.R.S. 1943, the ‘findings of a District Court under the act will not be disturbed on appeal unless they are clearly wrong.’ [Citation omitted.]” Daniels v. Andersen, 195 Neb. 95, 98, 237 N.W.2d 397, 400 (1975). Negligence — the city’s negligence and contributory negligence of the plaintiffs — was a question of fact resolved by the trial court in favor of the plaintiffs. [*503] That conclusion and determination is not clearly wrong.

For these reasons the judgment of the trial court should have been affirmed.

White and Grant, JJ., join in this dissent.