Jacobsen v. City of Rathdrum

766 P.2d 736, 115 Idaho 266, 1988 Ida. LEXIS 116

• Court: Idaho Supreme Court
• Decided: September 12, 1988
• Docket: 16901
• Status: Published

Opinions

JOHNSON, Justice.

This is a personal injury case. The primary issue is whether I.C. § 36-1604, Idaho’s recreational use statute (the recreational use statute), precludes a claim on behalf of a two-year old child, who suffered irreparable and irreversible brain damage as the result of nearly drowning in a ditch that runs through the city park in Rathd-rum (the city). The child’s mother asserted claims on behalf of the child premised on the doctrine of attractive nuisance and on the wilful and wanton maintenance by the city of a dangerous condition in the park. We reverse the summary judgment granted by the trial court dismissing the complaint and hold that a owner may be liable for wilful or wanton conduct that causes injury to a person using the owner’s land for recreational purposes. We conclude that there are genuine issues of material fact regarding the city’s maintenance of a dangerous condition in the park that made it inappropriate to grant summary judgment as to the wilful and wanton conduct of the city. We affirm the trial court’s granting of summary judgment on the issue of attractive nuisance, since we conclude that the facts presented in opposition to the motion do not support the application of the doctrine. We also hold that no showing of specific intent to use property for recreational uses is necessary for the application of the recreational use statute.

I.

THE FACTS.

The child lived with his mother and his siblings across the road from the park maintained by the city. There is a ditch in the park that is dry for most of the year but which swells with rapidly running water in the spring. Near the ditch are swings, slides and other playground equipment. The playground equipment is located near a bridge across the ditch. The bridge has a single horizontal rail located approximately three feet above the floor of the bridge.

On April 12, 1985 the child together with his mother, his siblings and some friends spent the better part of the day in the park. The child and his family returned home at approximately 3:00 p.m. The mother told the child to stay in the front yard and play with his sisters. Sometime later the mother found that the child was no longer in the yard and went to the park to find him. There she met one of the child’s playmates as he was coming off the bridge.- The playmate told her that the child had fallen into the ditch. A cigarette lighter with which the child often played was lying on the bridge. After being unable to find the child, she summoned neighbors to help search for him. The child was found about fifteen minutes later about one-half mile, downstream. Although the child was revived, his near drowning resulted in severe anoxic encephalopathy with severe mental retardation, cerebral palsy and a seizure disorder.

The mother filed a timely tort claim notice with the city on behalf of the child claiming damages due to the injuries received from the near drowning. Subsequently, the mother filed this action on behalf of the child. The city filed a motion for summary judgment on the ground that the city is immune from liability by reason of the recreational use statute. In support of the motion the city relied on the pleadings on file and on an affidavit of the city clerk, in which the clerk asserted that the city had never received any complaints regarding the ditch, the bridge or the play equipment located in the park, that except for this action, the clerk was unaware of any accidents or deaths occurring in the park and that the city had no records of any accidents or deaths occurring in the park. The affidavit also attached three photographs showing the ditch and the playground equipment in the park.

In opposition to the motion the mother submitted affidavits of herself, the doctor who cared for the child following the near drowning, a psychologist, and the director of parks and recreation for Spokane County, Washington. The mother’s affidavit set forth the facts concerning the child, the park, the swollen condition of the ditch, and the events leading up to the near drowning of the child. The affidavit of the doctor reported the child’s medical condition following the near drowning. The affidavit of the psychologist recited his understanding of the events leading up to the near drowning of the child and contained the following statements:

A child of this age would not have formed an "intent” to go anywhere for “recreational” purposes.

A child of this age is not in a position to appreciate or comprehend any danger which may be associated with the bridge....

The affidavit of the Spokane County director of parks and recreation stated that he had examined photographs of the park, the placement of the playground equipment, the ditch and the bridge. His affidavit contained the following opinions:

In my opinion, the footbridge located in close proximity to the playground equipment is extremely dangerous to children and adults as well.... The footbridge is particularly dangerous to children six years of age or less who can either fall underneath the handrail into the ditch or swing from the handrail into the ditch.

It is also my opinion that the playground equipment is located too close to the irrigation ditch and the foot bridge. By placing the toys in the park, the City should reasonably expect that children will be attracted to the area. Locating the playground equipment so close to the irrigation ditch and bridge creates an unreasonable danger to children who would also be attracted to the water and bridge.

It is my opinion that the irrigation ditch located in the Rathdrum City Park is in a high use activity area and should be fenced or personnel should be assigned to supervise the area near the ditch.

In summary, I feel that the city of Rathdrum acted irresponsibly in creating a dangerous condition for children by placing playground equipment in close proximity to a hazardous foot bridge and near an unfenced, unsupervised irrigation ditch.

The trial court ruled that the recreational use statute applied to the child’s near drowning, that there were no genuine issues of material fact, and that the recreational use statute precluded claims based on wilful or wanton conduct or an attractive nuisance. The trial court also concluded that the child was in the park for recreational purposes and that the question of his specific intent in being there was not an issue. The court granted summary judgment in favor of the city and dismissed the complaint. The mother has appealed from this order of the trial court.

II.

THE RECREATIONAL USE STATUTE DOES NOT PRECLUDE LIABILITY FOR WILFUL AND WANTON CONDUCT.

The portions of the Idaho recreational use statute that are pertinent to this case are as follows:

36-1604. Limitation of liability of landowner. — (a) Statement of Purpose. The purpose of this section is to encourage owners of land to make land and water areas available to the public without charge for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

(b)Definitions. As used in this section:

1. “Land” means private or public land, roads, trails, water, watercourses, private or public ways and buildings, structures, and machinery or equipment when attached to or used on the realty.

2. “Owner” means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.

3. “Recreational Purposes” includes, but is not limited to, any of the following or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, animal riding, motorcycling, snowmobiling, recreational vehicles, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites, when done without charge of the owner.

(c) Owner Exempt from Warning. An owner of land owes no duty of care to keep the premises safe for entry by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

(d) Owner Assumes No Liability. An owner of land or equipment who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

1. Extend any assurance that the premises are safe for any purpose.

2. Confer upon such person the legal status of an invitee or licensee to whom a duty of care it owed.

3. Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

I.C. § 36-1604(aHd) (1977).

This Court has previously declined to take a position as to whether this statute “would absolve a landowner of liability for willful or wanton injury to a trespasser.” Johnson v. Sunshine Mining Co., Inc., 106 Idaho 866, 871, 684 P.2d 268, 273 (1984), and Corey v. State, 108 Idaho 921, 923, 703 P.2d 685, 687 (1985). We now hold that the recreational use statute does not preclude liability of an owner for wilful or wanton conduct that causes the injury of a person using the owner’s land for recreational purposes. We find this is an appropriate case in which to reach this decision, because we conclude that the child was using the park for recreational purposes and because there are genuine issues of material fact as to whether the city was wilful and wanton in maintaining a dangerous condition in the park that resulted in the near drowning of the child and the child’s brain damage.

A reading of the pertinent portions of the recreational use statute causes us to conclude that the statute was intended to insulate landowners only from liability predicated on a duty of care owed to an invitee or licensee. The statute states:

An owner of land ... who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

2. Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owned.

I.C. § 36-1604(d)(2) (Emphasis added).

It is clear to us that the intention of the legislature was that for liability purposes those who use property for recreational purposes under the statute will be treated the same as if they had been trespassers. Otherwise, the statute would create the anomalous situation that a landowner who directly or indirectly invites or permits without charge a person to use their land for recreational purposes would be immune from the liability to which any landowner is exposed as to trespassers. There is no indication in the statute that the legislature intended to abolish a landowner’s liability to trespassers. Those who use an owner’s land for recreational purposes are entitled to at least the same protection as trespassers are afforded.

The statute itself gives some indication of the correctness of this interpretation in its title (“Limitation of liability of landowner.”) and in the reference to “limiting their liability.” I.C. § 36-1604(a). If the legislature had intended to abolish all liability or to make landowners immune from liability under any circumstances, the statute could easily have been worded to accomplish that purpose. Reason and the provisions of the statute itself cause us to conclude that the legislature intended that landowners would continue to be liable to recreational users of their land as though the users were trespassers. This is the only interpretation of the statute that allows us to read the statute as a whole and to make sense of each of its parts.

III.

THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER THE CONDUCT OF THE CITY WAS WILFUL AND WANTON.

Having concluded that recreational users should be treated as trespassers for the purpose of determining the liability of the owner of the land they use, we now turn to determining whether there were genuine issues of material fact in this case that made it inappropriate to grant summary judgment on the issue of the city’s liability for wilful and wanton conduct.

The duty of a landowner to a trespasser is “to refrain from wilful or wanton acts which might cause injuries.” Huyck v. Hecla Mining Co., 101 Idaho 299, 301, 612 P.2d 142, 144 (1980). Here, the wilful and wanton maintenance by the city of a dangerous condition in the park has been alleged. “Willful and wanton misconduct” is defined by the Idaho Jury Instructions as follows:

WILLFUL AND WANTON MISCONDUCT

Willful and wanton misconduct is present if the defendant intentionally does or fails to do an act, knowing or having a reason to know facts which would lead a reasonable man to realize that his conduct not only creates unreasonable risk of harm to another, but involves a high degree of probability that such harm would result.

IDJI 225 (1985).

In Ellis v. Ashton & St. Anthony Power Co., 41 Idaho 106, 120, 238 P. 517, 522 (1925) this Court held that the evidence showed what the Court referred to as “wanton negligence.” There a nine-year-old girl was instantly killed by coming in contact with a high tension transmission line that had been constructed on the bank of a canal that was private property. The wire with which the child came in contact was only five feet four inches from the ground. There were no warnings, barriers, fences or other obstructions to protect the public from the line. There were piles of loose dirt on the canal bank that were “above the level of the surrounding country and would necessarily be somewhat prominent and afforded a view for quite a distance.” Id. at 112, 238 P. at 519. The power company “knew the dangerous construction of the secondary line and the condition of the country, and in general, the adjacent population, the number of school children and that the road ... upon which the children traveled to school, extended immediately by the spoil bank upon which the line was constructed.” Id. The deceased girl trespassed on the canal bank and was electrocuted by the sagging power line. The jury awarded the parents of the deceased girl $10,000 for her death. In affirming the judgment this Court approved an instruction that “stated that if the defendants maintained a dangerous agency and knew that children or others were accustomed to frequent or go on the ground, then if the dangerous appliance were unprotected, and if by reason of defendants’ negligence injury resulted, the defendants would be liable.” 41 Idaho at 120, 238 P. at 522. The Court concluded that “this instruction was evidentially framed for the purpose of further indicating to the jury what conditions should necessarily obtain before the defendants would be guilty of wanton negligence.” Id.

From Ellis and IDJI 225 we can formulate the rule that should be applied in this case in determining whether there are any genuine issues of material fact that made the granting of summary judgment inappropriate. The record before the trial court on the motion for summary judgment must be examined to determine if there are genuine issues of fact as to whether the city maintained a dangerous condition in the park knowing or having reason to know that children were accustomed to frequent the park and that allowing the condition to remain would not only create unreasonable risk of harm to children, but would also involve a high degree of probability that the harm would result.

In reviewing the affidavits submitted in support of and in opposition to the motion for summary judgment we must liberally construe the facts in favor of the child and resolve all doubts against the city. The motion should be denied if conflicting inferences could have been drawn from the facts alleged in the affidavits, and if reasonable people might have reached different conclusions as to whether the city was wilful and wanton. Anderson v. City of Pocatello, 112 Idaho 176, 179-80, 731 P.2d 171, 174-75 (1987).

While the affidavit of the city clerk asserts that the city had not received any complaints regarding the ditch, the bridge, or the playground equipment and that the clerk was unaware and had no records of any accidents or deaths occurring in the park, the affidavits in opposition to the motion assert the following facts, which were not challenged by the city:

1. The playground equipment was located near the ditch.

2. The ditch had swollen with rapidly running water that was deep enough to be up to the mother’s chest when she jumped into the ditch to try to find the child.

3. The bridge across the ditch near the playground equipment had only a single horizontal rail approximately three feet above the floor of the bridge.

4. A playmate said that the child had fallen into the ditch.

5. A cigarette lighter with which the child often played was lying on the bridge when the mother arrived in the park to look for the child.

6. In the opinion of the Spokane County director of parks and recreation, an expert on playground design, the bridge located in close proximity to the playground equipment was “extremely dangerous to children,” and was “particularly dangerous to children six years of age or less who can either fall underneath the handrail into the ditch or swing from the handrail into the ditch.” This expert stated that “[ljocating the playground equipment so close to the irrigation ditch and bridge creates an unreasonable danger to children who would also be attracted to the water and bridge.”

Considering these facts and the reasonable inferences from them that can be drawn in favor of the child, and resolving all doubts against the city, reasonable minds might reach different conclusions as to whether the city was guilty of wilful and wanton conduct in not protecting children who came to the park from the dangerous condition in the park created by the ditch and the bridge. It is reasonable to infer that the city knew of the dangerous condition that existed in the park in the springtime when the ditch was swollen with rapidly running water, that the City knew of the condition of the bridge, and that allowing the ditch and the bridge to remain in that condition in the spring would create unreasonable risk of harm to children and would involve a high degree of probability that harm would result. As Justice Huntley said in his dissent in Johnson:

The most critical element of wantonness is knowledge, and that element need not be shown by direct evidence; rather, it may be made to appear by showing circumstances from which the fact of knowledge is a legitimate inference. 106 Idaho at 873-74, 684 P.2d at 275.

Therefore, the trial court should not have granted summary judgment, and we reverse the trial court’s order and remand for further proceedings.

IV.

THE RECREATIONAL USE STATUTE DOES NOT PRECLUDE LIABILITY UNDER THE DOCTRINE OF ATTRACTIVE NUISANCE, BUT THERE IS NOT SUFFICIENT EVIDENCE TO SUSTAIN AN ATTRACTIVE NUISANCE CLAIM.

The doctrine of attractive nuisance applies to a child who trespasses and who is injured by a dangerous condition or structure, if the child was attracted by the dangerous structure or condition maintained or permitted on the property, if the structure or condition was peculiarly or unusually attractive to children, if the danger was not apparent to immature minds, and if the owner knew of the structure or condition, or if the facts were such as to charge the owner with knowledge of the structure or condition. Bass v. Quinn-Robbins, Co., 70 Idaho 308, 312, 216 P.2d 944, 948 (1950).

Since a claim based on the doctrine of attractive nuisance begins with the fact that the child who was injured was a trespasser, the recreational use statute does not preclude the liability of a landowner under this doctrine. Even though a child who uses land for recreational purposes under the statute is not a trespasser, the owner should be liable for injury to the child, if the owner would have been liable to a trespassing child.

The doctrine of attractive nuisance in this state does not apply to streams. Id. at 313-14, 216 P.2d at 945; and Bicandi v. Boise Payette Lumber Co., 55 Idaho 543, 550-51, 44 P.2d 1103, 1105-06 (1935). It may apply to a structure like the bridge in this case, if the elements of the doctrine are present. The affidavit of the Spokane County director of parks and recreation establishes that there were genuine issues of fact as to the dangerousness of the bridge at the time of the near drowning. The reasonable inferences from this affidavit and that of the mother are that the city knew or should have known of the dangerousness of the bridge during high water, and that children were likely to come to the park and be injured because of this condition. The presence on the bridge of the cigarette lighter with which the child often played leads to the reasonable inference that the child had been on the bridge shortly before the near drowning. However, the affidavits do not raise genuine issues of material fact as to whether the child was attracted to the park by the bridge. What evidence there is seems to indicate that the child came to the park because he had been there earlier in the day with his family and friends, and because other children were there. Therefore, there are not sufficient evidence or inferences here to prevent summary judgment on the claim based on the doctrine of attractive nuisance, and we affirm that portion of the trial court’s decision.

v

SPECIFIC INTENT FOR RECREATIONAL USE IS NOT NECESSARY UNDER THE RECREATIONAL USE STATUTE.

The mother contends that the recreational use statute requires an intent to use land for recreational purposes and raises the question whether the child could have formed the required intent. The affidavit of the psychologist creates a genuine issue as to whether the child could have formulated a specific intent to use the park for recreational purposes. However, the recreational use statute requires only that the recreational user use the owner’s property for recreational purposes. Nothing in the statute requires that the recreational user formulate a specific intent to use the property for recreational purposes. If the person actually uses the property for recreational purposes, no showing of a specific intent to do so is required. Here the mother acknowledges in her affidavit that the child frequently played in the park, that she met one of the child’s playmates in the park on the day of the near drowning when she went to look for the child, and that the playmate said the child had fallen in the ditch and drowned. The only reasonable inference that can be drawn is that the child was in the park playing before the near drowning. Although playing is not one of the “recreational purposes” listed in I.C. § 36-1604(b)(3), the list of activities there does not limit the term. We conclude that playing is within the recreational purposes contemplated by the statute. Therefore, we affirm the decision of the district court on this issue.

VI.

CONCLUSION.

The summary judgment of the trial court is reversed as to the claim that the child was injured because of the wilful and wanton conduct of the city and the case is remanded for further proceedings consistent with this opinion, Costs to appellants.

No attorney fees on appeal.

BAKES, BISTLINE and HUNTLEY, JJ., concur.