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LAW REVIEW continued from page 35

claimed the town was negligent in failing " to install an emergency telephone or a cellular tower " on the premises.
As described by the federal district court, " [t]he duty owed
by a landowner to an entrant onto the land is determined by the
entrant's status as a trespasser, licensee, or invitee " :
In general, there is an ascending degree of duty owed by the
possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee. A possessor of
land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. In
addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to
discover.
The duty that a possessor of land owes to a licensee, however, does not ordinarily encompass the responsibility to
keep the property in a reasonably safe condition, because the
licensee must take the premises as he finds them. As a general rule, the possessor of real estate owes no duty to
trespassers . . . to keep the property in a reasonably safe condition for their use.
A public invitee is a person who is invited to enter or remain on land as a member of the public for the purpose for

which the land is held open to the public.

As characterized by the court, Popow had claimed that " the
Town of Stratford and Patusky invited the public to use Long
Beach for kite-surfing, including during the winter months, and
therefore owed the decedent and other kite-surfers a duty of
care. " The federal district court, however, found no evidence
that the defendants " took any actions which could be construed as extending an invitation to the decedent or others to
kite-surf at Long Beach during the month of January. "
The distinction between one who is an invitee and one who is
merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the
possessor of the land, to enter the land or remain on the land.
There is no evidence, for instance, that the Town made any
improvements upon the area of Long Beach where the decedent was kite-surfing.

Moreover, in the opinion of the court, " even if the Town of
Stratford and Patusky owed the decedent a duty of care as an
invitee, that duty extends only to 'dangers that the invitee could
not reasonably be expected to discover'. "
Here, the decedent was engaged in an inherently dangerous
water sport during the month of January, when the water temperature was between 38 degrees and 40 degrees
Fahrenheit. The risk of engaging in an extreme water sport in
such conditions was patently obvious to any reasonable person, and the Defendants should not be held liable for their
failure to warn of this risk.
According to the court, " [o[ne who engages in water sports
assumes the reasonably foreseeable risks inherent in the activity. " In this particular instance, the federal district court
held " the City was not required to remind adult swimmers of
the obvious and commonly known dangers of drowning inherent in swimming " :
A rule, requiring a property owner to post warning signs
about the dangers inherent in swimming is unreasonable. In
Connecticut, a small state, hundreds of miles of shoreline
would be exposed to this unreasonable requirement. Property owners who have water on their land are entitled to assume
that a reasonable adult would be aware of the risk of drowning in a body of water... [I]t would be highly unreasonable to
expect property owners to warn adults of the dangers of engaging in an extreme water sport in the middle of winter
during storm-like conditions.

Conclusion
As a result, based upon the above reasoning, the federal district court granted summary judgment in favor of all defendants, effectively dismissing Popow's claims.

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JAMES C. KOZLOWSKI, J.D., PH.D. is an associate professor in
the School of Recreation, Health, and Tourism at George Mason
University in Manassas, Virginia. E Mail: jkozlows@gmu.edu
Webpage: http://mason.gmu.edu/~jkozlows

November 2010 - Parks & Recreation

Table of Contents for the Digital Edition of November 2010 - Parks & Recreation