January 2018 - Parks & Recreation - 28

L AW R E V I E W

managing the boat launch at the time
of the accident testified that they had
not " inspected the wooded area where
the rope swing was located because they
believed that the wooded area was not
within their responsibilities. " One state
employee testified that he was " aware of
the path leading from the parking lot. "
Another former state employee testified
that " he was aware that there was a path
leading from the parking lot into the
woods, but he never went down that path

circumstances of this particular case,
the claims court found " the injury-producing activity was visible and apparent
and would have been easily discoverable
under any reasonably diligent inquiry or
minimal inspection. "
Having found the greater weight
of credible evidence had established
Khachadourian's negligence claim, the
state claims court concluded the state
of New York should be held liable for
his injuries.

Given shared responsibility...the state of New York would
be responsible for paying 60 percent of the damages
associated with the claimant's injuries.

because he did not have any reason to, as
the woods was not part of the area that
he was required to maintain. "
In addition, the claims court noted
evidence that the state had received a
complaint from one of the neighboring
property owners " concerning partying
and garbage at the boat launch, but no
inspection of the wooded area was done
in response to this complaint. " Following the accident, a state employee had
visited the site and " ordered that the
platforms and the remains of the rope be
removed. " This state employee " estimated that a person would have to go only
about 10 feet down the path to see the
structures in the trees. "
Based on this evidence, the claims
court held " the State should be charged
with constructive notice of the dangerous condition. " In reaching this conclusion, the claims court acknowledged
" the limited resources available to the
State to inspect the vast amount of property that it owns. " However, under the
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Parks & Recreation

Shared Responsibility
Based on the following facts, however, the claims court further found the
" claimant must also bear some responsibility for the accident " :
Claimant, who was 21 years old at
the time of the accident, is a high school
graduate with some community college
experience. He was very familiar with the
rope swing, having used it before " at least
a dozen times " in the four years prior to
the accident. He was well-aware of the
risks involved, which included having to
clear 10 feet of shoreline and shallow water depths of 2 to 3 feet before letting go of
the rope at about 20 feet from the shoreline
where the water depth was 10 to 12 feet.
According to the claims court, in light
of these facts, it was " reasonably foreseeable to claimant that his actions could result in an accident like the one that befell
him. " Moreover, the claims court noted
the claimant had testified that he knew
" there was a clear risk of getting injured
on the rope swing. " In his testimony,

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claimant had further admitted that " he
did not look at the rope before he started
swinging on it that day. "
Apportioned Liability
Given shared responsibility, the claims
court concluded " the liability should be
apportioned 60% against the defendant
and 40% against the claimant for the
injuries allegedly sustained by claimant
on August 5, 2012. " Accordingly, as determined in further trial proceedings, the
state of New York would be responsible
for paying 60 percent of the damages associated with the claimant's injuries.
Tree Debris in Park Ravine
Similarly, in the case of County of San
Diego v. Superior Court, 242 Cal. App. 4th
460, 195 Cal. Rptr. 3d 374, 2015 Cal.
App. LEXIS 1033 (11/20/2015), the
issue was whether landowner liability
should attach for injuries associated with
rope swing activity in a county park.
Damon Lane County Park in El Cajon, California (the park), is a 29-acre
open space park with trails for hiking,
walking and equestrian use. The park
is owned and controlled by the county of San Diego (the County) (http://
www.sdparks.org/content/sdparks/en/
park-pages/DamonLane.html).
The county has a maintenance crew
who services the park daily to collect
trash and, as needed, clear the trails and
cut weeds. Another crew trims trees and
cuts up downed trees. Trees posing a falling hazard to trail users are removed, but
trees that have fallen off a trail are often
left to support the natural habitat.
Plaintiff Ben Casteen had been rope
swinging at the park since he was 12
years old. On a day in 2012, Casteen, a
high school student, used a rope swing
tied to a tree at the park. The tree was
located above a ravine. The rope broke,
causing Casteen to fall into the ravine
and onto debris located in the ravine.

January 2018 - Parks & Recreation

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