LANDOWNER DUTY: ASSURE PREMISES NO MORE DANGEROUS THAN IT APPEARS TO BE James C. Kozlowski, J.D., Ph.D.
NRPA LAW REVIEW, Parks & Recreation , FEBRUARY 1996
As indicated by the following description of general legal principles and case law examples, landowners are usually not liable for negligence when recreational injuries result from conditions on the land which are as obvious to the visitor as to the landowner, or should have been observed by the visitor in exercise of reasonable care. Accordingly, the landowner's most demanding legal duty of care is generally limited to keeping the premises free of dangerous defects or conditions which are not known, or readily observable, to a visitor looking out reasonably for his or her own safety (i.e., hidden traps, dangers or pitfalls).
Within this context, foreseeability is not a mere possibility, but a probability. Based upon one's own knowledge, or the common understanding of reasonable persons in similar circumstances, such injury causing situations have occurred before and are likely to happen again, if reasonable precautions or preventive measures are not undertaken by the landowner. In other words, the test of foreseeability is not whether a particular landowners foresaw a particular risk but, rather, whether a reasonably prudent person should have foreseen the risk, and whether the landowner exercised the care of a reasonably prudent person.
Generally, the law balances the burden of precaution against the foreseeable risk of serious injury in establishing liability for negligence. If the foreseeable risk of serious injury is great, public agencies will be expected to be more demanding and stringent in their maintenance and safety procedures. On the other hand, agencies are not the insurers of safety for users of their facilities. In other words, public agencies do not have a duty to compensate every person injured on the premises. Liability presumes negligence, i.e., a failure to adhere to the standard of care required by the law.
Landowners must maintain their property in a reasonably safe condition in view of all the circumstances. Relevant circumstances include: the likelihood of injury to those using the premises (i.e., foreseeability), the seriousness of the injury (i.e, risk), and the landowner's burden of avoiding the risk (reasonable precautions). Foreseeability is the initial measure of a landowner's liability for injuries on the premises. In particular, landowners must take steps to prevent those accidents which might foreseeably occur as result of dangerous terrain.
Ordinarily the applicable standard of care for recreation facilities is to make the premises reasonably safe for its intended use. In most instances, the law classifies individuals using recreational facilities as invitees. The duty of care owed invitees is to inspect and remove discoverable hazards on the premises. If removal of the hazardous condition is impractical or physically impossible, an adequate warning of the danger must be provided to users of the premises. This warning should apprise individuals of the risk involved and provide a reasonable means to avoid the hazardous condition. There is, however, no duty to warn of hazards on the premises which would be open and obvious to the reasonable man.
Where the risk of danger is not apparent to those making use of the property, the landowner's burden is greater. This landowner duty of due care is a function of among other things the reasonable expectations of those using the premises. In other words, landowners are responsible for assuring that their property is no more dangerous (or safe) than it appears to be. Further, those using the premises must act reasonably using ordinary care to protect themselves and discover obvious dangers.
Accordingly, there is generally no legal duty to provide warnings for those using the premises of conditions which are readily observable to anyone employing the reasonable use of his/her senses. Conversely, a landowner must adequately warn against a danger, if someone would not discover or realize the peril and guard against it. Under such circumstances, landowners must take reasonable steps to warn persons of both the existence of danger and, to the extent required by the circumstances, the nature of the danger being warned against.
Moreover, recreational use statutes in most jurisdictions may further limit the landowner's potential liability exposure when the premises are made available public recreational use free of charge. Under these recreational use statutes, there is generally no negligence liability for the landowner's failure to guard, warn, or make the premises reasonably safe. Rather, these statutes limit landowner liability to misconduct which is willful (i.e., intentional) or wanton (i.e., recklessness, utter disregard for the physical well-being of others).
The following discussion, however, will limit itself to an overview of negligence liability for the landowner's failure to guard, warn, or make the premises reasonably safe. As indicated by the discussion of the Shaw case below, there may be no duty to warn of obvious hazards resulting from a natural condition on the site. On the other hand, subsequent discussion of the Catalano and Parness cases indicates that liability is much more likely when the injury is caused by dangerous foreign objects on the premises, specifically broken glass.
OBVIOUS NATURAL HAZARD
In the case of Shaw v. City of Lipscomb, Ala., 380 So.2d 812 (1980), the plaintiff sustained a fractured leg when she slipped and fell in a municipal park. The plaintiff was on the premises to purchase barbecue which was being sold by the city in connection with the July 4 Bicentennial celebration. The plaintiff testified that she "lost her footing while descending a slight incline when she stepped on something that rolled, maybe a sweet gum ball or a twig."
When she fell, plaintiff was carrying five boxes of barbecue and admittedly was not looking at the ground to see where she was placing her feet. Plaintiff maintained that the allegedly dangerous incline was the most direct route used by customers to go from the parking lot to pick up their purchases of barbecue. As a result, she contended that the city "should have foreseen that those expected to traverse the incline might fall on round objects such as sweet gum balls and fragments of sticks."
The city testified that "the grassy area in the vicinity of Mrs. Shaw's fall had been cleaned, the grass had been cut and it had been raked up and the trees whitewashed before the barbecue." Despite these preparations, a witness to the accident testified that some twigs and gumballs remained scattered about the area. The issue before the court was, therefore, whether the plaintiff had presented sufficient evidence to show that the city breached a duty of care owed to her. In other words, should the city be held liable for negligence given the facts of this case?
At the time of the accident, plaintiff was considered a business invitee of the city because she was invited onto the site for a specific purpose- to purchase barbecue. The duty owed by landowners to such individuals is to exercise "ordinary and reasonable care to keep the premises in a reasonably safe condition." For plaintiff to recover for her injury, she, therefore, had to prove "that her fall resulted from a defect or instrumentality on the park premises which was the result of defendant city's negligence of which the defendant-city had or should have had notice at the time of the accident."
According to the court, not all injuries brought about by a condition on the premises are attributable to negligence and, therefore, compensable. There is "no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of, or should be aware of, in the exercise of reasonable care on the invitee's part."
As described by the court, slip and fall cases involving business invitees are usually caused by objects foreign to the premises. For example, slippery lettuce leaves in the aisle of a grocery store would be considered foreign objects to a properly maintained floor. In this instance, however, twigs and sweet gum balls were "not foreign objects on the ground under sweet gum trees." Invitees to the park should, therefore, have expected their presence and taken reasonable measures to avoid the foreseeable hazard. As a result, the court concluded that the city had no duty to remove an open and obvious defect which occurred naturally on the premises of a municipal park.
[Plaintiff] admits that she was not looking down at the ground to see where she was putting her feet and that she did expect to find sweet gum balls under sweet gum trees. The plaintiff could not expect the city to keep the ground in a park area under sweet gum trees clean of all sweet gum balls all of the time. These are items normally expected to be found under these trees... [T]he park appears to have been in a natural and normal condition with shade trees and grass and twigs and sweet gum balls. We cannot say that the city violated any duty in failing to clean up all of the sweet gum balls or twigs which may be found on the ground underneath the trees.
Based upon the above analysis, the Alabama supreme court affirmed the summary judgment in favor of the city.
NOTICE AND DUTY TO INSPECT
In the case of Catalano v. Kansas City, Mo., 475 S.W.2d 426 (1972), the 10 year old plaintiff severely cut his foot when he stepped on a broken beer bottle. He was injured while roughhousing with another boy in a play area adjacent to a swimming pool in a municipal park. A trial court awarded the plaintiff $3,250 in damages; the city appealed.
Under Missouri law, the city was "required to exercise ordinary care to maintain the park in a reasonably safe condition." Witnesses testified that broken glass in and around the playground and swimming pool was commonplace. This condition persisted despite daily inspection and trash pickup for these areas by park personnel.
The city argued that it had no notice of the particular broken bottle which injured plaintiff. According to the court, knowledge of the dangerous condition in general was sufficient to impose liability. "It is clear that when the risk arises from a condition as opposed to a specific defect, there is no requirement of notice as to the component parts of the condition." In this instance, the court found that the city did indeed have notice of the broken glass condition in the park.
The record plainly demonstrates that there was a condition of broken beer bottles in the morning when the City was making its routine inspections of the park. Such evidence supports an inference of notice to the City of this "condition." Plaintiff, therefore, did not have to prove that the city had notice of the particular broken bottle which injured him.
The city argued that it could not be expected to discover every piece of glass in an immense park system. According to the court, the duty of care owed park visitors to discover and remove broken beer bottles did not extend to "all of the area in every park."
Here we have a small playground area where the City had, by the erection of playground equipment, directed the activities of children. The condition which injured the plaintiff arose within this restricted area. The risk of injury to the plaintiff and others similarly situated arose from the condition of broken beer bottles · . . It does not require us to strain reason to say that the City's duty to remedy this condition of which it had constructive notice included the duty of a vigilant enough search to discover a piece of broken beer bottle six inches by two or three inches in size located in the grass which had been beaten down by the children and which was, at most, one or two steps from the hard surface where the swings were located.
Given the facts of this case, the court concluded that "the City has failed to perform its duty of ordinary care to keep Sunnyside Park in a reasonably safe condition in the area where the plaintiff was hurt."
It does not require us to find that the City is an insurer [of safety] to say that the City, having invited the children to the specific area of these swings and having constructive notice of a condition of broken glass, was under a duty during the several hours that such notice existed to have taken steps to remedy the dangerous condition.
The Missouri appeals court, therefore, affirmed the judgment of the trial court awarding damages to plaintiff.
CAUSATION AND FORESEEABILITY
In the case of Parness v. City of Tempe, Ariz., 600 P.2d 764 (1979), the 7 year old plaintiff was knocked down by one or two unidentified boys while playing at a community recreation center. When the plaintiff fell, he severely cut his hand on broken glass, injuring nerves and tendons. Plaintiff sued the city for negligence. The trial court granted a directed verdict for the city because "the conduct of the unidentified boys was a superceding [i.e., overriding] cause of plaintiff's injuries which relieved the City of liability" for negligence.
According to the court, the city had a duty "to keep its premises in a reasonably safe condition for users of the neighborhood recreation center." Broken glass in a recreation area was deemed by the court to be an unreasonably dangerous condition. As a result, if the municipality had actual notice of the broken glass, the city had a duty to remove this unreasonably dangerous condition. Failure to do so would be actionable negligence. Absent actual knowledge, the city would still be liable if the glass was on the ground a sufficient period of time for the city, in the exercise of reasonable care, to discover and remove the hazard.
In this instance, the court found the city had actual notice of the broken glass. The recreation leader at the center testified that he always saw broken glass around the premises, including the area where plaintiff was injured. He further testified he had informed his immediate supervisor of the hazard before the accident. He purportedly told him: "Hey, we have glass out here; we ought to get it up." Under these circumstances, the employee's actual knowledge of the dangerous condition was attributable to the employer-city.
The city argued that there was no evidence that it had knowledge of the specific piece of glass which caused plaintiff's injury. The court rejected this argument.
Knowledge of a continuing condition of broken glass must be deemed to include knowledge of the specific piece of glass which caused the injury. Actual perception of the specific piece of glass under these facts is not required.
The remaining issue was whether the conduct of the unidentified boys was a superceding cause of plaintiff's injuries. A superceding cause would relieve the city of liability for its own negligence in failing to maintain the grounds properly. On the other hand, if the intervening conduct of the boys was reasonably foreseeable, the city would still be liable for creating a condition likely to cause the type of injury suffered.
We hold the intervening conduct in this case is... foreseeable. The recreation area was a place where children were constantly fighting, shoving, and failing to the ground. A reasonable person would anticipate that if the broken glass were present, someone would be injured.
The court also rejected the city's contention that the intervening conduct of the unidentified boys was intentional and, therefore, a superceding cause of plaintiff's injuries. According to the court, it is irrelevant whether the intervening conduct is intentional or merely negligent; foreseeability is the controlling factor in establishing municipal liability. As stated above, the intervening conduct (plaintiff's being shoved and falling to the ground) was clearly foreseeable. The Arizona appeals court, therefore, reversed the verdict for the city and remanded the case for a new trial.
In our opinion, a reasonable person can foresee that children might push one another down on the ground where broken glass is present . . . We conclude, therefore, that the trial court erred in holding as a matter of law that the conduct of the boys in this case was a superceding cause which relieved the City of liability for its claimed negligence.
CONCEALED DANGER INJURES PARTICIPANT
In the case of Treps v. City of Racine, 73 Wis.2d 611, 243 N.W. 2d 520 (1976), the plaintiff was awarded $22,907.71 in damages for a broken ankle sustained in the parking lot of a city park. The plaintiff went to the park to participate in a municipal softball game. Players customarily used the parking area adjoining the ballfield to play catch prior to the game. Plaintiff was engaged in this activity when he jumped to catch a ball thrown over his head. " As he descended, his left foot entered a hole in the concrete pavement about two feet deep."
This 12" x 10" hole was created by the removal of a water fountain about six months prior to the incident. Plaintiff testified that he had not noticed the hole before the accident. A number of witnesses for the plaintiff, including nearby residents and children from the adjoining neighborhood, testified that the hole was usually uncovered although a piece of wood had covered it for short periods. Witnesses for the city testified that various measures had been taken to repair the hole, including one or more unsuccessful asphalt patching operations.
In considering the city's liability for negligence, the Wisconsin supreme court first determined the plaintiff's legal status on the premises and the corresponding duty of care owed to such individuals. According to the court, plaintiff was to be classified as a "public invitee" because he was on the site for park purposes.
Unlike a business invitee whose presence on the premises satisfies some business purpose for the landowner, a public invitee is "one who goes upon lands for purposes for which those lands are held open to the public, regardless of whether the land owner derives any benefit from the presence of the invitee." In either instance (business or public), the landowner has "a duty of ordinary care" toward the invitee.
There is, however, no duty to warn of an "open, unconcealed, and obvious" defect on the premises. Under the applicable Wisconsin law, a landowner would be liable for injuries caused by a dangerous condition not readily apparent to an invitee.
But if the dangerous condition is not open, unconcealed, or obvious, but rather one which the invitee, exercising ordinary care, would not be expected to discover, then it is the duty of the owner to warn the invitee of such dangerous condition. A failure so to warn is a failure to exercise ordinary care. (Wis. J.I.-Civil 8020)
Given the circumstances in this case, the court concluded that "this ten inch by twelve-inch hole in an area where persons were known to play catch was not, as to Mr. Treps, an "open, unconcealed, or obvious' danger." As a result, the hole constituted a "hazard to persons playing catch which the city was under a duty to foresee." The trial court, therefore, found the city negligent as a matter of law. On appeal, the city argued that "there was sufficient evidence of the city's lack of negligence to require the question to be submitted to the jury." The supreme court rejected this argument and affirmed the judgment of the lower court. "Permitting such hole to exist over the period of time testified to here was, as a matter of law, failure to exercise ordinary care."
LOCATION MAKES KNOWN CONDITION HAZARDOUS
In the case of Ardoin v. Evangeline Parish School Board, La.App., 376 So. 2d 372 (1979), the plaintiff sued the school board for injuries sustained on a public school play- ground. While playing softball during a physical education class, the plaintiff fell or tripped running between second and third base, injuring his knee. Plaintiff alleged that the school board was "negligent in permitting a hazardous condition to exist of which it had either actual or constructive notice." The allegedly hazardous condition was a slab of concrete "variously estimated at 12" by 12" to about 30" in diameter, and about 8 inches thick . . . embedded in the ground directly on the path, or very near it, between two bases on the softball diamond ... protruding] from one-half to one inch above the ground." The trial court agreed with plaintiff and awarded him and his father a judgment totaling $13,895.60.
On appeal, the issue was "whether the piece of concrete constituted such a hazardous condition that it was a breach of the required standard of care on the part of the school board to allow it to exist on a playground." According to the court, "a school board is liable if it has actual or constructive knowledge of a condition unreasonably hazardous to the children under its supervision." Further, constructive knowledge of a defect would be imputed to the school board "if it is so inherently dangerous that the school authorities should have known of it." In this instance, the school custodian testified that "the concrete had a 'little edge'... about 3 inches long sticking above the surface of the ground, about an inch was sticking up."
Based upon the evidence on the record, the appeals court agreed with the trial court's finding that "the piece of concrete constituted a hazardous or dangerous condition . . . [given that it] was in or near the base line of the softball diamond, on which children play regularly." In the opinion of the court, the location of the concrete on the basepath produced "a condition which was necessarily inherently dangerous."
We believe that a reasonable examination of the area assigned for use as a softball diamond would have revealed this hazard. It is not a case wherein a child was injured wandering to the perimeter of the playground or school yard. This suit involves an injury at the specific play area in the base path of a softball field. Accordingly, we hold that the school authorities had constructive knowledge of this dangerous condition. They should have anticipated and discovered the potential danger and eliminated the harm.
Since the hazard was not removed and "the concrete actually caused the injury," the court concluded that the board should be held liable for allowing "such an unreasonable risk of harm to children playing on the field." The court, therefore, affirmed the trial court's judgment in favor of the plaintiff.
SIGNED AREA MORE DANGEROUS THAN APPARENT IN WARNING?
In the case of Walter v. State, 568 N.Y.S.2d 521 (N.Y.Ct.Cl. 1991), the State had erected a sign which prohibited passage beyond a fence adjacent to a parking area in a state park. The sign read: "DANGER, Keep Inside Rail, Watch Your Children; CAUTION, People Walking Below, Do Not Throw Anything Over Cliff." According to the court, nothing in the wording of the sign warned that there was a hidden precipice which was wholly obscured by foliage so that one step could cause a person to plummet downward 60 feet. As a result, the court found that "the warning clearly did not inform the general public that the area beyond the fence was significantly more dangerous than it appeared to be."
By warning of one danger (to persons walking below) and not warning of another (to persons walking in the foliage on top of the cliff), the court concluded that the sign may very well have lulled a casual patron of the park facility into complacency. As a result, the court held that the warning was misleading and insufficient to adequately apprise park users of the type and degree of danger which they faced beyond the fence. Further, the court noted that the construction of the fence did not pose a significant barrier and thus provide an implicit warning that passage was potentially dangerous. In the opinion of the court, "a simple re-wording of the sign to point out that the edge of the cliff was hidden and/or that a fall from the sixty-foot cliff could be life threatening would undoubtedly have sufficed."
In contrast, the court in the case of Divan v. Village of Hastings-On-Hudson, 548 N.Y.S.2d (A.D. 2 Dept 1989) found the defendant landowner had no legal duty to erect barriers or fences to enclose natural geographical phenomena. Unlike the Walter situation described above, the court found no latent (i.e., hidden) dangerous conditions. On the contrary, the court found that the cliff from which plaintiff fell was "open and obvious," rather than latent.
SOUND & FURY SIGNIFIES OBVIOUS DANGER
Similarly, the court in the case of Smith v. North Carolina Department of Natural Resources, 436 S.E.2d 878 (N.C. App. 1993) found an open and obvious condition on the land had caused the fatal accident. In this particular case, the plaintiff had argued that a warning sign above a state park water falls was an "insufficient, inadequate, and incomplete" attempt by the landowner to warn of the danger of the falls. The warning sign read: "Danger, Falls Below." Plaintiff contended that the sign should have been more specific warning of the danger of the slippery rocks at the top of the falls because the landowner was aware of a previous fatality at that location. However, under the circumstances of this case, the court found that the risk of injury associated with a state park water falls and surrounding rocks was "obvious and clearly visible to any onlookers."
In particular, the court noted park ranger testimony which indicated that the sloping nature of the area was "immediately apparent." In addition to the "visibility and sound of the falls," the court found that the warning sign helped make the dangerous nature of the area even more obvious. Because the danger involved was "obvious and apparent," the court found that the warning sign was adequate. In so doing, the court rejected the notion that the presence of other people in the area rendered the warning sign meaningless. On the contrary, the court found that visitors to the area had a legal responsibility to act reasonably, using ordinary care to protect themselves and discover obvious dangers. Since the falls should have been obvious to plaintiff's husband, the court concluded that plaintiff's husband's own negligence was the legal cause of his own death.
UNIVERSALLY KNOWN, EASILY AVOIDED RISK?
In the case of Henshaw v. Audubon Park Commission, 605 So.2d 640, (La.App. 4th Cir. 1992), plaintiff was intoxicated when he climbed a tree in a city zoo. Plaintiff fell 25 to 45 feet when park police ordered him to climb down from the tree. Plaintiff alleged that the city was negligent because it had a rule against climbing trees, but it had not posted any such rule or warning. The court, however, found there was no legal duty to warn or prevent plaintiff because there was no unreasonable risk of injury. On the contrary, the court found the risk of falling from a tree was obvious, universally known, and therefore easily avoided.
Moreover, the court found that the mere existence of a rule did not create a legal duty to post the rule. In this instance, the court found that the rule did not establish the city's recognition of a potential danger to climbers. Rather, the court found the rule was designed to protect the trees, not an intoxicated tree climber. Under the circumstances of this case, the court found the city had no duty to inform plaintiff of what he already knew. To do so, the court found would impose an unreasonable burden on the city to post signs on each and every tree.
INSUFFICIENT WARNING OF HIDDEN STAIRWAY PERIL
In the case of Prunier v. City of Watertown, 936 F.2d 677 (1991), a visitor to defendant's city park was seriously injured when the bike upon which he was riding apparently crashed down a set of stairs. Plaintiff alleged that the accident was caused by the defendant city's failure to warn of the existence of the flight of stairs. In particular, plaintiff alleged that defendant was negligent because anyone riding a bicycle on the path would be unable to see the stairs in time to stop.
As noted by the court, several witnesses had testified that, as they approached the stairway, they could not see the stairs until they were very close to them. Specifically, one witness testified that an overhanging bush obscured the view of the steps from the walkway and that the steps were visible only at a distance of five feet. Another witness testified that the bush and a curve in the walkway made it difficult to see the stairs until immediately before reaching them.
Accordingly, the court concluded that a bike rider traveling faster than these witnesses, who had approached on foot, would have had insufficient warning of the peril posed by the stairs. In particular, the court noted that there was no sign warning cyclists that the paved path was interrupted by stairs. The court, therefore, found these facts indicated the lack of a warning had caused the accident.
ROPE SWINGS PRESENT OBVIOUS RISK
In the case of Barrett v. Forest Preserve of Cook County, 593 N.E.2d 990 (Ill.App. 1992), plaintiff fell from a rope swing located on defendant's land. Plaintiff alleged that the forest preserve was negligent in its maintenance of the area. The court, however, found that plaintiff was not engaged in an intended or permitted use of the forest preserve area at the time of the injury. Further, the court found the forest preserve had no landowner duty to remedy a defective condition on the premises which presented an obvious risk which plaintiff should have been capable of understanding. Specifically, the court concluded that the danger of swinging from a thirty-foot rope over a deep ravine presented an obvious risk to children of similar age and experience as the sixteen-year-old plaintiff.
Similarly, in the case of Bennett v. City of Lafayette, 635 So.2d 515( La.App. 1994), the plaintiff fell from a rope swing located in a wooded, natural area of defendant's city park. Plaintiff entered this area of the park along a trail containing two green signs with white lettering, which originally read, "Trail Closed". Some of the letters on each sign were missing so that one read, "Trail Close" and the other, "Trai Close". In her complaint, plaintiff alleged that "the defendant city had a duty to discover this admittedly dangerous situation through periodic inspection of its 120 acre park, and to remove it before members of the public, thinking this rope was part of the park's recreational equipment, might attempt to swing upon it out over a rugged ravine."
In determining landowner liability, the specific issue before the court was "whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others." As described by the court, "a landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner." Applying these principles to the facts of the case, the court found that "the rope hanging from the tree in the defendant's park did not constitute an unreasonable risk of harm."
In this case, the risk was obvious and easily avoidable. Plaintiff did not act with reasonable care for her own safety. The benefit of a park preserved in its natural undisturbed woodland state to society far outweighs the attendant risks that unauthorized persons might hang ropes from the branches of trees. It would be unreasonable to require the city to inspect all trees in the park for such dangers, not only because of the number of trees involved, but also because of the damage such inspections might cause to plant and animal life... The circumstances that this injury took place in a restricted area off a closed trail coupled with the obviousness of the risk require a denial of plaintiff's claims...
In addition, the trial court found both plaintiff's and the City's experts had testified that "the average adult should have understood that the signs were defaced and actually meant, "Trail Closed." The court, therefore, concluded that "the presence of the ropes hanging from a tree in an area of Acadiana Park closed to the public did not present an unreasonable risk of harm to an adult exercising reasonable care for her own safety."
SECOND ACCIDENT MORE LIKELY, EASILY PREVENTED?
In the case of Mesick v. State, 504 N.Y.S.2d (A.D. 3 Dept. 1986), plaintiff was injured when he fell from a rope swing in an area used as a swimming hole. The area was posted with signs which limited permissible use to fishing; other activities were declared unlawful. Unknown persons had attached the rope swing to a tree which required the user to swing clear of a rocky bank to reach the water. State employees were aware of swimming in the area and use of the rope swing. State police were aware of an incident two years earlier in which a girl broke her wrist after falling from the rope swing. The defendant, however, took no action to prevent swimming or use of the rope swing following this incident.
As noted by the court, as a general rule in determining negligence liability, the risk reasonably to be perceived defines the duty to be obeyed. In addition, as landowner, the court found the defendant had a legal duty of care to maintain its property in a reasonably safe condition based upon the likelihood of injury and the foreseeability of plaintiff's presence on the premises.
Applying these principles to the facts of the case, the court found the potential for serious injury should have been obvious because the defendant landowner was aware of both the illegal swimming activity and the earlier rope swing accident in an area open to the public. Accordingly, the court found that defendant's posting of signs and occasionally cutting down the rope swing were inadequate precautions under the circumstances of this case. Given defendant's actual knowledge of a rope swing injury involving this particular tree, the court found defendant was negligent in not avoiding a similar incident by simply cutting down a tree which was known to attract rope swings. On the other hand, the court found that plaintiff was equally at fault in failing to look out reasonably for his own safety.