Summertime. Time to watch a ballgame, take a walk in the park or a swim in the lake. Most of these activities can be enjoyed on public parks and on public lands. Unfortunately, sometimes visitors to these areas suffer injuries while engaging in these common summertime activities. If an injury was caused by a dangerous condition on the property, how does an injured victim overcome sovereign, local and the recreational use of land and water immunities afforded governmental entities to successfully make a claim for damages? If injured on property owned by a local or state agency, proving negligence and recovering damages is truly an uphill battle.
Premises Liability, Generally
Under well-established principles of Pennsylvania law, an injured person seeking to recover damages from an occupier or owner of land must prove more than the mere occurrence of a slip, trip, fall or other infliction of an injury on the property. (See Pascarella v. Kelley, 105 A.2d 70 (1954); Lear v. Shirk's Motor Express, 152 A.2d 883 (1959).) Just because an accident happens on a premises does not mean negligence can be inferred therefrom. (See Smith v. Bell Telephone, 153 A.2d 477 (1959).) This article addresses the law only as it applies to those who have been invited onto land or who have a right to be on the premises simply as members of the public. Generally speaking, a possessor of land is subject to liability for injury caused to invitees by a condition on the land if he or she knows, or by the exercise of reasonable care would discover, the condition and should realize it poses an unreasonable risk of harm and he or she should expect that the invitee will not discover or realize the danger, or fail to protect himself or herself against it and fails to exercise reasonable care to protect the invitee from the danger. (See Restatement (Second) of Torts, Section 343.) In practice, this translates into proving the possessor knew or should have known that a dangerous condition was present on the land and that it failed to do anything to protect its guest from the hazard. Essentially, the law imposes a duty of inspection on the possessor to discover and/or prevent hazards that his or her invitee would not reasonably expect to encounter or reasonably be able to discover. (See Crotty v. Reading Industries, 345 A.2d 259 (Pa. Super. 1975).) Thus, an owner or occupier of land cannot simply bury his or her head in the sand and do nothing to inspect the property.
In my personal injury practice, I have seen people suffer injuries within the context of the subject matter of this article, in a variety of ways. While attending a tournament at a municipally-owned softball field, a person fell after tripping over a concrete slab that previously housed several picnic benches. In another case, a person stepped in a hole while walking in a field in a state park. Others have been hurt or killed by falling limbs from trees located on outdoor fields and properties. Participants in sporting events have often been injured by dangerous playing field conditions. Finally, cases involving drownings in lakes on lands open to the public seem to occur every summer. Simply stated, dangerous or hazardous conditions exist on outdoor recreational areas and people suffer injuries because of them all the time. Sometimes, accidents simply happen and no liability is imposed upon on the land possessor. After all, the "forces of nature" or simple chance can certainly cause an injury. When there is negligence though, injured victims often incur damages for medical bills, lost wages and pain, suffering and disfigurement. When that happens, a claim is initially made to the landowner or possessor's insurance company. Succeeding in those claims is difficult enough when the land is privately owned. When dealing with insurance carriers for state and local municipalities, however, an injured victim must also overcome additional hurdles — governmental immunity, either from 42 Pa. C.S. Section 8521 (sovereign immunity) or 42 Pa. C.S. Section 8541 (the Tort Claims Act). For brevity, this article will only address the Tort Claims Act.
Tort Claims Act
When one suffers an injury and claims that a local governmental agency is at fault, the general rule in Pennsylvania, of course, is that the local agency is immune from tort actions. (See Section 8541.) As with almost any rule in our society, there are exceptions, and the Tort Claims Act is no different, providing eight categories or means to the end of suing a local government. (See Section 8542.) Most pertinent to this article are the exceptions for the "care, custody or control of real property" and that for "trees, traffic controls and street lighting." So, if a person is injured at a municipal park by stepping in a hole on a pathway or if he or she gets struck by a falling tree limb, there is a basis in law for a claim provided he or she can prove the other elements of Section 343 of the Second Restatement outlined earlier. To overcome immunity though, in addition to other elements, the claimant must prove that dangerous condition created a reasonably foreseeable risk of the injury suffered and that the agency had either actual or constructive notice of the danger at a sufficient time prior to the incident to have been able to taken measures to protect against it. Proving notice is difficult and failing to do so will likely prevent the client from bringing a claim for damages.
Overcoming immunity and proving an exception to the Tort Claims Act, although difficult, can be accomplished. Proving notice of the dangerous condition under the Tort Claims Act is essential, as indicated. Therefore, gathering information about the cause of the condition itself, how long it had been present on the premises, etc., is very important. Documents defining property inspection procedures and protocols, property maintenance records and similar documents often provide key pieces of evidence that the agency knew or should have known about a dangerous condition on the property. For example, in a fallen tree case, records and minutes from city counsel or other public meetings can be helpful when they show that a concerned citizen voiced concerns of decaying trees on the property months before the incident. Moreover, incident reports citing other injuries caused by the same dangerous condition in the past can make liability iron-clad. Local newspapers also cover newsworthy stories, so check them as well to see if any articles were written in the past about unsafe park conditions or prior injury-accidents occurring at the park. Finally, expert witnesses can, after inspecting the tree, offer opinions regarding the decaying condition of the tree and for how long prior to the accident that tree exhibited those signs.
The Recreational Use of Land and Water Act
The Tort Claims Act typically provides local governments ample protection from negligence claims made by people injured on their properties. When injuries occur on unimproved land or other areas open to the public for recreational purposes, Pennsylvania provides owners of such areas an additional layer of protection from negligence actions. The Recreational Use of Land and Water Act, or RUA, basically relieves an owner of land (public or private) from any duty of care to keep the premises safe for use by the public or to warn of a dangerous condition on the premises when the visitor enters the premises for recreational purposes. (See 68 P.S. Section 477-1, et seq.) An exception to the rule, however, is that the RUA does not limit liability of any landowner who willfully or maliciously fails to protect the public from a dangerous condition or in cases where the owner charges a fee to the public to use the land for recreational purposes.
Of course, the RUA's construction broadly protects landowners and that construction is necessary to accomplish the law's spirit and intent of encouraging owners of land and water areas to make those areas available to the public for activities like hiking, biking, swimming, fishing, boating and a variety of other activities. Again, with any outdoor activity comes the occasional accident that severely injures someone lawfully on the property. Acknowledging this, Pennsylvania courts seem to have interpreted the RUA fairly over the years, disallowing protection from liability to landowners in certain circumstances, yet affording it in others. For instance, in a case where: a person was injured walking down an undeveloped hillside in a county park, (Brezinski v. County of Allegheny, 694 A.2d 388 (Pa. Cmwlth. 1997)); a person was injured stepping into a hole near a tree trunk in a remote area of a public park (Wilkinson v. Conoy Township, 677 A.2d 876 (Pa. Cmwlth. 1996)); and a young boy was killed after he fell into a deep drop-off in a park creek (Jones v. Cheltenham Township, 543 A.2d 1258 (Pa. Cmwlth. 1988)), the courts have applied the RUA to shield landowners from liability. Yet, in a case where: a young man hurt himself after his foot got caught in a hole in a paved basketball court on city-owned property (Walsh v. City of Philadelphia, 585 A.2d 445 (1991)); a young boy drowned in an indoor swimming pool (Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, 507 A.2d 1 (1986)); and a lacrosse player hurt himself by stepping in a large hole on a playing field (Seiferth v. Downingtown Area School District, 604 A.2d 757 (Pa. Cmwlth. 1992)), the courts have not extended the protections of the RUA.
Reading these decisions, one realizes that even more so than in other areas of the law, premises liability cases involving the RUA are extremely fact-driven and will be decided using the various factors the courts have developed through many interesting cases. For example, in Pagnotti v. Lancaster Township, 751 A.2d 1226 (2000 Pa. Cmwlth. LEXIS 274), the Commonwealth Court held that Lancaster Township was entitled to the protection of the RUA where a child drowned while swimming at a dam in a park creek. The court arrived at its conclusion after considering the following factors it gleaned from relevant precedent: examining the nature of the area in question; looking at the type of recreation offered in the area; considering the extent of the area's development; and assessing the character of the area's development.
Overcoming the RUA, then, for a person injured on lands open for recreational use, is possible. To succeed in making a claim for damages, an injured claimant must first determine if the RUA even applies. For instance, if the landowner charged a fee for use of the land, then the RUA does not apply. Assuming a fee was not charged, however, the landowner will claim the protection of the RUA. If the land in question was substantially improved in the area where the injury took place, a court may not be so quick to protect the landowner. So, if a person falls while hiking in an undeveloped area of a large park, the RUA will likely provide immunity to the landowner. Conversely, if a person falls because of a dangerous condition near the parking lot of a highly traveled area of that same park, a claim for damages has a better chance of succeeding, as visitors would expect those areas to be well maintained. Similarly, claims made by athletes injured while participating on dangerous playing fields will also likely prevail.
When counsel for people injured on public recreation areas makes a claim for damages, he or she must consider the hurdles posed by governmental immunity statutes and the additional protection afforded to landowners by the RUA. Although possible to succeed, helping clients in these difficult premises liability cases certainly isn't a walk in the park.
Christopher Marzzacco is a nonequity partner in the civil litigation department at Anapol Schwartz. Focusing his practic.e on plaintiffs personal injury matters, Marzzacco also chairs an arbitration panel in Dauphin County, teaches trial advocacy for Widener University School of Law's Intensive Trial Advocacy Program and speaks for the Pennsylvania Bar Institute and other organizations.