December 2016 - Parks & Recreation - 26

L AW R E V I E W

the definition of " owner " in G.L. 1956 §
32-6-2(3) to include the state and municipalities. Accordingly, as characterized
by the state Supreme Court, " the legislature declared that all people who use this
state's public recreational resources are
classified as trespassers to whom no duty
of care is owed, save to refrain from willful or malicious conduct as defined in the
Recreational Use Statute. "
Willful or Malicious Failure?
On appeal, the state argued the evidence
presented at trial in this case had failed to
" establish that the state willfully and/or
maliciously failed to warn against a dangerous condition " within the context of
the state Recreational Use Statute. Specifically, the state argued that " there was
no evidence of a substantial number of
injuries flowing from a known dangerous condition, " that " the state did not
fail to guard or warn against a dangerous
condition, use, structure or activity, " and
" no witness made testimonial admissions sufficient to extinguish protection
under the Recreational Use Statute. "
In response, Roy argued liability under
the Recreational Use Statute had been
established because the evidence supported a finding that the state " breached
the duty to refrain from willful and malicious failures to guard and warn against
known latent conditions. " Specifically,
Roy claimed the " record is replete with
evidence of DEM's admitted knowledge of numerous unique dangerous
conditions, including shallow water in
areas where users had been known to
dive from the park's structures, and the
historic presence of the sandbar in the
same (normally deeper) area. " As characterized by Roy, the " shallow water and
dangers of diving at this particular facility were not obvious to users, yet were in
fact known to DEM. "
The state Supreme Court found the state
had indeed " admitted knowledge of the
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Parks & Recreation

unique features of the pond. " On the other
hand, the court found Roy had also " admitted that he was aware of the danger of
making a dive into shallow water. " Moreover, the court noted Roy's admission that
" the way that he checked the depth of the
water was probably irresponsible. "

At common law,
landowners are liable for
ordinary negligence that
causes injury to invitees on
the premises.
Since there was " only one indication
in the record of a relatively minor injury
reported several days before Roy's catastrophic injuries, " the state Supreme Court
found DEM had no specific knowledge of
any peril confronting Roy. As a result, the
state Supreme Court found no evidence
of multiple incidents grievous injury that
would be indicative of a " willful or malicious failure to guard or warn against a
dangerous condition " within the context
of the state Recreational Use Statute.
The state Supreme Court, therefore,
concluded the trial court had erred in not
granting the state's motion for judgment
based on applicable landowner immunity under the state recreational use statute.
Open and Obvious Danger
Alternatively, even if the Recreational Use
Statute did not apply, the state Supreme
Court held the danger of diving in and of
itself is an " open and obvious " danger,
one of " common knowledge, " such that a
landowner does not owe a duty of care to
warn individuals who enter the premises:
As a practical matter, the danger
of diving into shallow water is one
of common knowledge, and one the
plaintiff admitted he was aware of...
It is only reasonable for a diver, who

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cannot ascertain the water's depth by
looking, to further inspect the area before diving into dark water. The danger of diving into shallow water was
open and obvious [to a 29-year-old
man], regardless of whether a sign was
erected alerting him to the danger.
Similarly, under the circumstances of this
case, the state Supreme Court found " as a
matter of law, the plaintiff [Roy] must be
held to have had knowledge and an appreciation of this risk because, ultimately, it was
the plaintiff's own behavior that caused his
injuries. " The state Supreme Court, therefore, held that the state DEM did not owe
Roy a duty of care, but, rather, that the plaintiff voluntarily exposed himself to the perils
of an " open and obvious " danger.
Conclusion
Accordingly, in the opinion of the state Supreme Court, " the state bore no liability for
Roy's injuries - either because diving is an
open and obvious danger or because it was
protected under the Recreational Use Statute. " As a result, the court concluded that the
trial court had erroneously denied the state's
" motion for judgment as a matter of law. "
The state Supreme Court, therefore, vacated
the judgment of the trial court and remanded
(i.e., sent back) the case " with instructions to
enter judgment in favor of the state. "
In reaching this decision, the state Supreme Court noted this was a " hard case...
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or tough to crack, but in the sense that it
requires us to deny relief to a plaintiff for
whom we have considerable sympathy. "
That being said, the state Supreme Court
acknowledged " the duty of all courts of
justice " to " take care " that " hard cases do
not make bad law. "
James C. Kozlowski, J.D., Ph.D., is an attorney
and Associate Professor in the School of
Recreation, Health and Tourism at George Mason
University (jkozlows@gmu.edu). Webpage with
link to Law Review articles archive (1982 to
present): http://mason.gmu.edu/~jkozlows.

December 2016 - Parks & Recreation

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