A California appellate court recently reversed a trial court’s ruling to deny a government agency summary judgment on immunity grounds in a personal injury lawsuit stemming from an accident involving a rope swing at a public park.
In County of San Diego v. Super. Ct., the California Court of Appeal, Fourth Appellate District, Division One, ruled trial court erred in denying the county’s motion for summary judgment, as it was immune from personal injury litigation based on California Government Code Section 831.7, which deals with hazardous recreational activity. The statute says that if someone is engaged in hazardous recreational activity (in which one knows or reasonably should know there is a substantial risk of injury to onesself) on public property, the government can’t be held liable.
North Carolina has similar statutes, spelled out in NCGS 99E-24 and NCGS 99E-25. Those laws say that if a person is engaged in hazardous recreational activity, he or she assumes the known and unknown risks associated with this activities – including legal liability for injury or death. There is a personal responsibility to act within the limits of his or her ability and purpose of the design of equipment, maintain control of his or her person and refrain from acting in a way that may cause or contribute to death or injury to oneself or other people. Failure to do so is negligence, and no governmental entity will be liable when a person voluntarily engages in hazardous recreation activities on public property.
The only exceptions are:
- Failure of the government or employee to guard against or warn of a dangerous condition the participant does not and cannot reasonably be expected to know about;
- Governmental entity or employee acts with gross negligence and proximately causes plaintiff’s injuries.
In the present case, plaintiff was a high school student who used a rope swing that had been tied to a tree at the local park to swing. He had engaged in this type of activity since he was just 12-years-old. On this occasion, the rope, located over a deep ravine, broke. This caused plaintiff to fall into the ravine and onto debris, which included downed tree limbs and other brush that had recently been cut by county maintenance crews. plaintiff suffered severe injuries to his face and head.
Although plaintiff has no recollection of the incident resulting in his personal injuries, he testified he always visually checked the rope and conducted a short test on the rope’s strength before swinging out farther.
County had no policy in its manual that required personnel to take down rope swings, and there were no signs that expressly forbid it. A civil engineer who later analyzed the rope concluded it had likely been out in the sun for months prior to the incident, and over the course of that time, became damaged and weakened by exposure to ultraviolet light.
Plaintiff sued the county for premises liability, asserting:
- Dangerous condition on public property, about which the county had actual and constructive knowledge of the defective condition of the rope swing, failed to protect against that danger and failed to warn the public;
- Dangerous condition caused by the tree debris left in the ravine;
- General negligence for failure to remove the rope swing.
County responded with a number of affirmative defenses, including immunity owing to the hazardous recreation statute. Trial court denied that motion, but on appeal, that decision was reversed.
Justices noted the purpose of the hazardous recreational activity statute is to prevent the public from injuring themselves during unsupervised activities and then attributing liability to the government. The list of potentially dangerous activities – both in the California and North Carolina statutes – is not exhaustive, but the California law does specifically include “tree rope swinging.”
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
County of San Diego v. Super. Ct., Nov. 20, 2015, California Court of Appeal, Fourth Appellate District, Division One
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Report: Day Care Liability Lawsuit Alleges Child Injury in Winston-Salem, Dec. 4, 2015, Winston-Salem Injury Lawyer Blog