Case of the Day – Thursday, October 20, 2016

RECREATIONAL USE STATUTE AND NATURAL DEFECTS

It's hard to enjoy an idyllic sunset when you can't get to the lakeshore.

It’s hard to enjoy an idyllic sunset when you can’t get to the lakeshore. Recreational use statutes make it easier.

A landowner really has no natural incentive to let people freely enjoy his or her land. You have a nice pond and woods, and, being as you’re a nice person, you let the birdwatchers’ society wander around looking for the white-throated needletail. Next thing you know, one of them steps into a prairie dog hole, and you’re being sued.

But public policy is strongly in favor of getting people out to enjoy nature’s bounty. For that reason, virtually all states have passed some version of a recreational use statute. These statutes generally that a landowner only has a duty not to be grossly negligent to people using his or her unimproved land without charge for recreational activities. They are intended to encourage the opening of private land – unspoiled natural areas – for free recreational use by shielding landowners from liability for the most common forms of negligence.

Today’s case raises an interesting question under the Texas recreational use statute. In this case, the City of Waco had a park that included limestone cliffs. A boy was sitting on the cliffs when a portion collapsed, causing him to fall to his death.

A user might anticipate he could fall off a cliff – but not that it would give way.

A user might anticipate he could fall off a cliff – but not that it would give way.

The City argued it couldn’t be held liable under the statute, because it did nothing to cause the defect in the cliffs. The Court of Appeals agreed with the boy’s mother, however, that it wasn’t necessary for the landowner to cause the defect, if the defect was so latent, that is, hidden, that the recreational user would not reasonably be aware of it. That one might accidentally fall off a cliff was foreseeable, the court admitted. But it wasn’t open and obvious that the cliff one was sitting on would suddenly give way.

Because the defect wasn’t obvious, all the boy’s mother had to do was advance in her pleading some allegation of gross negligence. In her complaint, she argued that the City was aware others had been hurt by falling rocks, and it had reports warning of the danger of collapsing cliffs. Those reports recommended the City post warning signs, but it didn’t do so. The court said that those allegations were good enough to make out a claim under the recreational use statute.

Kirwan v. City of Waco, 249 S.W.3d 544 (Tex.App 2008). Debra Kirwan’s son, Brad McGehee, was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the City of Waco, when the ground beneath him gave way and he fell about 60 feet to his death. Kirwan brought a wrongful death suit against the City, alleging a premises defect.

A firefighter who responded to the scene of Brad’s fall testified that an average person would “probably not understand that the ground could give way underneath them.” The trial court threw out the suit, holding that Kirwan had not: (1) “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or (2) “raised a genuine issue of material fact. Kirwan appealed.

Held: The suit was reinstated and sent back for trial. Kirwan challenged whether Texas Civil Practice & Remedies Code § 75.002(c)the state recreational use statute –requires that all premises defect claims be based on a condition created by the defendant, thus barring any claim based on the existence of a natural condition that the defendant happened to know about. Under the recreational use statute – intended to encourage landowners to open their property to the public for recreational purposes – a landowner’s duty to a user is no greater than that owed to a trespasser, the very limited duty to not injure anyone willfully, wantonly, or through gross negligence.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy's life.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy’s life.

The law is clear that a landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, an owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But the appeals court held that the recreational use statute permits claims based on natural conditions as long as the condition is not open and obvious, and the plaintiff furnishes evidence of the defendant’s alleged gross negligence. Here, the court said, the crumbling rocks and cracks on the cliff that gave way did not conclusively prove that the danger of the unstable cliff rock was open and obvious. Crumbling rock may alert the average person to the risk of slipping and falling, but certainly not that the ground will simply fall apart beneath him. The court ruled that unstable cliff rock is not necessarily an open and obvious condition that a person might reasonably expect to encounter.

To state a claim under the Texas recreational use statute, Kirwan had to allege sufficient facts to show that the City of Waco was grossly negligent. The pleadings need only provide a plain and concise statement of the cause of action sufficient to give the defendant fair notice of the claim involved. In her pleading, Kirwan alleged that the City was actually aware of the dangerous condition on the cliff, that other park patrons had died or been seriously injured by the condition of the cliffs, that the City received a report from its own expert warning of dangerous rock falls and advising the City to post signs warning of potentially fatal rock falls, and the City’s failure to do so, in fact, to warn or guard against this danger at all amounted to gross negligence.

The court agreed that Kirwan plainly alleged the City’s conduct amounted to gross negligence. The City’s complaint that the pleading didn’t allege that the City had created the condition was meritless: where a claim is based on hidden natural conditions, such as the structurally unstable cliff rock in this case, a plaintiff need not plead that the City was grossly negligent in creating a condition.

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