For an enhanced digital experience, read this story in the ezine.

As illustrated by the two state supreme court cases described herein, a review of reported opinions would indicate liability is generally the exception rather than the rule for public parks and recreation.

Sun-Heated Walkway Danger

In the case of City of Barbourville v. Hoskins, 655 S.W.3d 137 (Ky 10/20/2022), Plaintiff Evelyn Hoskins sustained burns on the bottom of her feet after visiting Barbourville Water Park, which is owned by the City of Barbourville, Kentucky (the City).

Plaintiff Evelyn Hoskins (Plaintiff) visited the Barbourville Water and Recreation Park for approximately two hours on July 27, 2016. She claims to have spent about 10 minutes that day walking on the concrete sidewalks and walkways at the water park.

Hoskins suffers from diabetic neuropathy, which causes a loss of protective sensation in her feet. While at the water park, Hoskins did not experience any discomfort in her feet. But when she returned home, her daughter remarked that blisters appeared on the soles of Hoskins’ feet. Hoskins self-treated the affected areas, but after four days, she sought professional medical treatment for her feet. Because the blistered area became infected, Hoskins’ left small toe and a portion of her foot required amputation.

Judicial Review Process

Hoskins brought a claim against the City for premises liability. The trial court granted summary judgment for the City having found no breach by the City of any legal duty owed to Hoskins. In so doing, the trial court ruled Hoskins’ premises liability claim failed because the allegedly sun-heated sidewalks did not pose an unreasonable risk of harm and the injury she sustained was not foreseeable.

The court of appeals, however, reversed the trial court’s grant of summary judgment on the premises-liability claim. In so doing, the court of appeals stated that “breach of duty is an issue of fact to be decided by the jury, not the trial court,” which had granted the City’s motion for summary judgment. As a result, the court of appeals held “a jury must assess both the reasonability of the risk and the foreseeability of the harm”:

[W]e cannot conclude that the hazard at issue here could not be corrected by any means or that it is beyond dispute that the landowner did all that was reasonable to correct or warn of the situation.

The City appealed the court of appeals decision to the Supreme Court of Kentucky. As noted by the state supreme court:

The proper standard of review on appeal when a trial judge has granted a motion for summary judgment is whether the record, when examined in its entirety, shows there is no genuine issue of material fact and the moving party [in this case the City] is entitled to a judgment as a matter of law.

Premises Liability

As described by the state supreme court: “A negligence claim brought under a theory of premises liability asserts that a land possessor has violated his duty to maintain his premises in a reasonably safe manner.” In addition, the court noted “the scope of the duty owed by a land possessor was dependent upon the status of one claiming injury as either a trespasser, a licensee, or an invitee.” In this case, the court found “Hoskins was an invitee at the water park because she was an individual present on the premises at the explicit or implicit invitation of the property owner to do business or otherwise benefit the property owner.”

When “the facts of a case are undisputed,” the state supreme court acknowledged “the determination of the duty owed by a landowner to a guest is a question of law to be determined by the court.” In this particular case, the state supreme court found the legal duty owed to Hoskins as an invitee on the premises was “a duty to discover unreasonably dangerous conditions on the land and either eliminate or warn of them.” Further, the state supreme court acknowledged:

It is generally a question of fact to be presented to the jury whether an unreasonably dangerous condition existed on the land possessor’s premises sufficient to trigger the duty to warn or ameliorate.

That being said, the court recognized “summary judgment still remains a viable concept” under the following circumstances:

If reasonable minds cannot differ or it would be unreasonable for a jury to find breach or causation, summary judgment is still available to a landowner. And when no questions of material fact exist or when only one reasonable conclusion can be reached, the litigation may still be terminated.

Unreasonably Dangerous Condition

As defined by the state supreme court, an “unreasonably dangerous condition” is “one that is recognized by a reasonable person in similar circumstances as a risk that should be avoided or minimized or one that is in fact recognized as such by the particular defendant.” On the other hand, the court noted: “One indication that a risk is not unreasonable is that a reasonable person in the defendant’s shoes would not take action to minimize or avoid the risk.”

Moreover, the court acknowledged “conditions on the land could not be deemed unreasonably dangerous if they were known to the visitor or so obvious to him that he may be expected to discover them.” Further, “if the conditions on the premises are not unreasonably dangerous,” the state supreme court found “the land possessor’s duty of care is not implicated, and thus injuries arising from such conditions cannot give rise to the possessor’s liability.”

Lack of Evidence

The trial court in this case had found that “no reasonable jury could conclude that the sun-heated concrete walkways at the water park were an unreasonably dangerous condition.” The state supreme court agreed with the trial court. In the opinion of the state supreme court, Hoskins had “provided no evidence that the walkways at the water park were negligently maintained or defectively designed”:

She provided no evidence that other water parks take steps to minimize the sun-generated heat of their concrete walkways. She provided no expert testimony regarding industry standards or practices with which Barbourville Water Park failed to comply.

Further, in the opinion of the state supreme court, “Hoskins simply produced no evidence that a reasonable person in the place of the City would have taken any action to eliminate the alleged risk created by the sun heating the concrete walkways.” As a result, the state supreme court held “the trial court did not err in deciding that only one reasonable conclusion could be reached: the sun-heated walkways at the water park were not an unreasonably dangerous condition.”

Foreseeability

Further, as described by the state supreme court, a landowner can be held liable for injury to an invitee caused by an identified open and obvious hazard if injuries caused by the hazard are “foreseeable.” According to the court, once such injuries are foreseeable, the landowner would have a legal duty to “eliminate the hazard.”

In this case, “if the sun-heated concrete walkways only constituted an open-and-obvious hazard,” Hoskins had argued “the City still had a duty to eliminate that hazard if it was foreseeable that an invitee would be injured by the harm despite the ‘warning’ that an open-and-obvious hazard inherently provides.” Accordingly, Hoskins argued “the case should have been submitted to the jury for determination of the foreseeability of her injury.”

The state supreme court rejected Plaintiff’s argument. In so doing, the state supreme court noted “the trial court found the circumstances of [Hoskins’] injury to be so unusual and unique that the City could not have anticipated her injury nor could it have reasonably done more to prevent her injury.” Moreover, the court found Hoskins had provided “no evidence that any previous patron of the water park had sustained injuries like hers as a result of walking on its sun-heated walkways.”

According to the state supreme court, the “foreseeability of [P]laintiff’s injury” is generally a question of fact to be considered by a jury in determining “what was required by the defendant in fulfilling the applicable standard of care.” That being said, the state supreme court acknowledged summary judgment on the question of liability would be appropriate “when a hazard cannot be corrected by any means or when it is beyond dispute that the landowner had done all that was reasonable.” In this particular instance, the state supreme court agreed with the trial court that “[Hoskins’] injuries were not foreseeable to the City, and thus the City had no duty to eliminate the allegedly dangerous condition”:

Hoskins produced no evidence of any feasible means the City could have undertaken to lessen the alleged risk created by heat radiating from sidewalks warmed by the summer sun. She did not produce any evidence that the City acted outside of industry standard practices. And she did not provide any evidence why the City would anticipate injuries like hers to take place.

Conclusion

As characterized by the state supreme court, “this to be a rare circumstance in which a plaintiff provided no evidence of the existence of an unreasonably dangerous condition such that summary judgment was appropriate.” Accordingly, the state supreme court reversed the court of appeals on Hoskins’ premises-liability claim and reinstated the trial court’s grant of summary judgment in favor of the City:

We agree with the trial court that no reasonable jury could find the sun-heated walkways at the water park constituted an unreasonably dangerous condition and that [Hoskins’] injury was so unforeseeable that the City could not have reasonably done more to prevent her injury.

Jogger Golf Ball Injury

The case of McGuire v. New Orleans City Park Improvement Association, 835 So. 2d 416 (La. 1/14/2003) posed a similar situation. In this case, the issue before the Supreme Court of Louisiana was whether the operators and insurers of a city park golf course owed a legal duty to provide protection or warnings of an “unreasonable risk of harm” to non-golfers jogging near a golf course.

Facts of the Case

On April 25, 1994, Plaintiff Robert McGuire (Plaintiff), and two of his friends were jogging on Palm Drive in New Orleans City Park near the Bayou Oaks Little Course. As they were jogging on Palm Drive, a golf ball landed on the roadway in front of Plaintiff then bounced and struck him in the groin area, causing his right testicle to rupture. As a result of the injury, Plaintiff had surgery and a portion of his right testicle was removed.

New Orleans City Park covers 1,500 acres of land and is the fifth largest urban park in the United States. It has four golf courses, with 22 miles of unrestricted public roadways, which is surrounded by golf tees and greens on both sides.

On October 20, 1994, Plaintiff filed suit against the New Orleans City Park Improvement Association, the operators of the golf course, and its insurer (City Park) for damages. In so doing, Plaintiff alleged “the City Park breached its duties: to warn non-golfers on Palm Drive of the danger of golf balls, to configure the golf course so that a danger was not created for non-golfers on Palm Drive, and to provide a protective barrier between the golf course and Palm Drive. In response, City Park filed a motion for summary judgment that asserted the following:

(1) [P]laintiff jogged through the golf course between two clearly visible greens, which was not a hidden peril that required a warning or protective barrier; (2) the risk was ordinary; and (3) it was not reasonably foreseeable that a golfer would hit a ball so far to the right that a non-golfer would be injured.

Jury Verdict

The trial court granted City Park’s motion for summary judgment. The court of appeal, however, reversed the trial court and remanded the case for further proceedings for a jury to consider “issues of material fact relating to City Park’s duty.” After a trial on the merits, the jury found City Park negligent and awarded judgment in favor of Plaintiff for $75,000.

The jury assessed City Park with 40 percent attributed fault and 60 percent comparative fault to Plaintiff. After medical expenses were reduced, the trial court entered a judgment against City Park for $56,680.82. The appeals court affirmed the trial court and held the following:

City Park owed a duty to a “passer-by not playing golf and not on the golf course” to exercise reasonable and ordinary care to keep the premises reasonably safe and take reasonable precautions, such as: placing warning signs, posting barriers between the golf tee and the road, configuring the course differently, or closing Palm Drive to pedestrians and bicycle traffic near the golf course.

Appeals Court Dissent

A dissenting judge on the appeals court found “City Park did not breach its duty to protect the [P]laintiff, but instead, acted reasonably to protect the public from any foreseeable injury.” Moreover, this dissenting judge noted Plaintiff “lived near City Park for many years, had jogged along this very path on numerous occasions and was aware that the path on which he was jogging traversed a golf course.” While Plaintiff conceded at trial that “he saw golfers as he was jogging,” he testified he failed to see the signs indicating this was a golf course; i.e., “Golf Cart Crossing.”

In the opinion of the dissenting judge, “the trial court erred in finding City Park liable for [P]laintiff’s liability.” Moreover, the dissenting judge found the “suggestions of preventive measures” by the appeals court “went beyond what is reasonable to protect against such a remote possibility of harm.”

State Supreme Court

On appeal, the state supreme court noted the legal duty of a governmental agency or municipality operating a public park is as follows:

[K]eep the premises in a reasonably safe condition for those using the park and to discover any unreasonably dangerous conditions on the premises and to either correct the conditions or warn of the danger.…

In furtherance of such, the operator should furnish equipment and services to prevent injury from conditions which foreseeably may cause injury. However, the operator is not the insurer of its patron’s safety, but is liable only for injuries resulting from its negligence.

Duty-Risk Analysis

In determining “whether City Park had a duty to protect a non-golfer against injury from being struck by a golf ball,” the state supreme court noted Louisiana had adopted a “duty-risk analysis” for liability on the part of a public body. Under the applicable “duty-risk analysis,” the state supreme court would require Plaintiff to satisfy the following requisites to prove liability for negligence:

(1) the conduct in question was a cause-in-fact of the resulting harm, (2) the defendant owed a duty of care to the plaintiff, (3) the defendant breached that requisite duty and (4) the risk of harm was within the scope of protection afforded by the duty breached.

If the plaintiff fails to prove any one of the elements, the defendant is not liable.

Obvious Risk

Accordingly, the state supreme court would decide “whether City Park presented an unreasonable risk of harm to non-golfers based upon the facts of this case.” Moreover, in determining whether a risk is unreasonable, the court was required to “balance of the intended benefit of the thing with its potential for harm and the cost of prevention.” Also, in determining negligence, the court would consider the “obviousness” and the “apparentness” of the complained of condition:

If the facts demonstrate that the complained of condition was obvious to all, the condition is not unreasonably dangerous and the defendant owes no duty to the plaintiff.

City Park conceded an applicable legal duty to “discover any unreasonably dangerous condition, correct it or warn others of the condition.” That being said, in this particular instance, City Park had argued “it had no duty to protect a non-golfer traveling the roads traversing the golf course against injury from an errant golf shot because the risk of a non-golfer getting struck by a golf ball was obvious, reasonable, and minuscule.”

Further, City Park claimed it had “acted with reasonable care under the circumstances.” Assuming “a duty to warn because of a hidden danger,” City Park argued it had fulfilled that duty by adequately warning entrants to the park of possible golf activity, erecting signs regarding golfing, including “golfers only beyond this point” and “golf cart crossings.” In addition, City Park claimed it had acted reasonably by “designing the golf course so as to avoid the possibility of injury.” Accordingly, City Park argued “[P]laintiff failed to prove that it acted unreasonably.”

Familiar Golf Course

In addressing the issue of potential negligence liability in this particular case, the state supreme court would “consider whether these circumstances presented an unreasonable or foreseeable danger to the non-golfer which City Park had a duty to protect or warn against.” In so doing, the state supreme court held Plaintiff was “precluded from recovery because of his familiarity with the park and the golf course”:

We note that [P]laintiff testified that he grew up near City Park, lived 13 years of his adult life a mile from City Park, had previously jogged that route, knew that the route traversed a golf course, and observed golfers as he was jogging that day. This non-golfer therefore was warned and should have anticipated encountering golf balls when jogging near the vicinity of a golf course because the risk of injury was obvious and readily observable.

As a result, under the circumstances of this case, the state supreme court concluded City Park “owed no duty to provide additional warnings.”

Further, “to find negligence” under the applicable “duty-risk analysis,” the court noted “a risk must be both foreseeable and unreasonable”:

Ordinary care requires only that precautions be taken against occurrences that can and should be foreseen; it does not require that one anticipate unusual and improbable, though entirely possible happenings.…

[T]he obviousness and apparentness of a potentially dangerous condition are relevant factors to be considered.… [I]f the facts of a particular case show that the risk is obvious to all, then the risk is not unreasonably dangerous and the public entity does not owe a duty to the plaintiff.

Unreasonable Remedies

In this particular instance, the state supreme court further found the “remedies required by the court of appeals’ ruling” would be “prohibitive considering that this was an isolated incident of injury.” These remedies required by the appeals court included “erecting barriers, reconfiguring the golf course, or closing off the street to non-golfers; i.e., pedestrians or bicyclists.”

In the opinion of the state supreme court, the erection of barriers on the golf course would have the following consequences:

[B]arriers would be required on both sides of the road to effectively protect any non-golfers from an accidental injury; high barriers would substantially interfere with the game of golf, and the cost of the barriers would be unreasonable considering that there has been no reported accidental injury of this nature since City Park has existed.

With regard to reconfiguring the park, City Park’s head golf professional as well as the park’s general manager and superintendent provide the following testimony regarding the golf course layout over 75 years:

The designs have never been substantially altered or reconfigured because of any unreasonable danger to a non-golfer, and the safety measures are no different than at any other public golf course in the country.… [T]he park is open 365 days per year and every year the park attracts approximately [14] million visitors with no pedestrian injury reported.

Under these circumstances, the state supreme court found “the foreseeability of an injury of this kind occurring” to be “practically nil.” Moreover, in the opinion of the court, “it would be unreasonable to close off the road through the South Course to non-golfers because of an isolated incident to one person.” As characterized by the court: “Closing South Course’s roads would mean all roads traversing the golf course would be closed to the public, depriving them of the park’s enjoyment.”

Accordingly, the state supreme court determined “the social value to the public” of the existing golf course to be “much greater” than “the magnitude of the risk of injury to non-golfers”:

[A] park is negligent if the magnitude of the risk of injury outweighs the public park’s social value, we note that the park’s purpose is to provide the maximum recreation and leisure opportunities for the greatest number of people; City Park is an unfunded state agency, andgolf is the largest single source of revenue. If the roads were closed to pedestrians, barricades erected, or the golf courses redesigned, the cost to the park will be prohibitive, golfing will end, and the park will have to close, resulting in harm to the public.

Conclusion

The state supreme court, therefore, concluded “the court of appeal erred in finding that City Park failed to exercise reasonable care to keep the golf course safe.” In so doing, the state supreme court agreed with “City Park’s rationale that it owed no duty to the plaintiff/non-golfer to protect him against injury from a golf ball.” Accordingly, the state supreme court reversed the judgment of the trial jury for Plaintiff and the court of appeal entering a judgment in favor of City Park dismissing Plaintiff’s lawsuit.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Professor emeritus in the School of Sport, Recreation and Tourism Management at George Mason University. Archive of articles (1982 to present).