Case of the Day – Monday, June 25, 2018

DUMB ADULT STUNTS

bikefall140418All right, we’re going to use the summer to get into shape. One-two-one-two. Time to blow out this mental cobwebs that form from hot days, warm nights, cool beer and cold ice cream. Time for a little sober reality.

We’ll start with a simple warm-up – considering two dumb adult stunts. The first stunt was Tom Alexson’s ill-advised decision, when he saw a tree branch laying on his bike path, to ride by and smoothly push it out of the way with his hand as he passed. Kids, please don’t attempt this at home! Of course, it didn’t work, and he crashed into and over the limb, hurting himself badly.

The second dumb adult trick was Tom’s unwillingness to accept the blame for his own stupidity. He didn’t, of course. Who does, these days? Instead, he sued the White Memorial Foundation, which owned the land and museum that stood on it.

The Foundation defended under the Connecticut Recreational Use Act, asking that the case be dismissed because no fee was charged for use of the Foundation property, and Tom was on the land for a recreational purpose. Tom’s crafty mouthpiece argued that the Foundation didn’t qualify, because it charged a fee to enter the museum. But the Court ruled that the Foundation didn’t charge Tom to ride his bike around the grounds, and that was good enough. After all, he didn’t fall in the museum attic.

Aha140418A-ha, the lawyer cried, riding a bike isn’t listed as a specific recreational activity in the statute. Horse hockey, the Court said. The statute clearly doesn’t limit recreational activities to the one listed. Lance Armstrong, after all, thinks bike riding is very recreational (and for years thought that taking banned drugs was not doping).

Yeah, argued Tom’s lawyer, but the Foundation’s failure to warn Tom of the danger was willful or malicious. Prove it, the Court said, using something more that Tom’s rather slanted opinion that it was so.

The case was tossed, as it should have been. Dumb adult stunts, indeed.

Alexson v. White Memorial Foundation, Inc., Not Reported in A.2d, 2008 WL 803423 (Conn.Super., Mar. 5, 2008). Workmen for the White Memorial Foundation were notified that a tree had fallen across a roadway on Foundation property. The workmen began to cut up fallen tree, but failed to complete the task before Tom Alexson – who was riding his bicycle on the White property – saw some of the tree still blocking the roadway and decided that he could push the obstruction aside as he passed. Instead, he collided and badly hurt himself.

Tom sued, alleging that the Foundation was careless and negligent in only partially removing the branch from a portion of roadway and that the Foundation’s failure to warn or guard against the obstruction was willful and intentional. The Foundation moved for summary judgment on the ground that General Statutes §52-557g, known as the recreational land use statute, made the Foundation immune.

Held: The Foundation was protected by the Connecticut Recreational Use Act. The Act provides that a landowner is immune from liability for simple negligence where: (1) the defendant is the owner of the land in question; (2) the defendant has made all or part of the land where the plaintiff was injured available for use to the public free of charge; and (3) the plaintiff, at the time that he was injured, was using the land for a recreational purpose.

Tom argued that there was a genuine issue of material fact as to whether the Foundation made the land available to the public free of charge. In addition, Tom alleged that there was a genuine issue of material fact as to whether the exception to the recreational land use immunity statute, codified in §52-557h, applied to the defendant because, as alleged by the plaintiff, the defendant willfully and maliciously failed to warn against a dangerous and defective condition.

The Foundation said the land on which Tom was injured was always available for recreational use to the public without charge. Tom admitted that on the day he was injured, he was not charged by the Foundation, and conceded that the only time he has been charged a fee was when he went inside the museum. The Court found that there was thus no genuine issue of material fact that the defendant Foundation made the part of the property on which Tom was injured available, free of charge, to the public.

biketree140418The final prong of the statute required that the land be available for recreational purposes. Section 52-557f(4)(a) provides a list of activities that constitute a “recreational purpose,” and the list doesn’t include bicycle riding. The Court observed, however, that, the statute clearly stated that “[r]ecreational purpose includes, but is not limited to, any of the following …” It was evident, the Court held, that the enumerated activities set forth in the statute were not exclusive.

Riding a bicycle, the Court said, fell within the penumbra of activities considered “recreational” for the purpose of the statute. Therefore the Foundation satisfied the third prong of the statute. Thus, the defendant is entitled to statutory immunity, unless Tom could show the Foundation had engaged in a willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. The Court said the phrase “willful or malicious” meant conduct which must encompass both the physical act proscribed by the statute and its injurious consequences.

Willful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. Its characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Alexson’s conclusory statements in his complaint, coupled with the conclusory statements in his affidavit (the admissibility of which the Court found to be dubious at best) did not raise a genuine issue of material fact. The Court said the complaint was “bereft of the factual predicate necessary to lead a reasonable person to infer that the workmen intended to injure passers by, and this plaintiff in particular, by their actions.”

The dismissal of this ridiculous suit was upheld.

– Tom Root

TNLBGray140407

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