CITY OF LOUISVILLE v. LAYDELL SILCOX
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RENDERED: September 4, 1998; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
CITY OF LOUISVILLE
v.
1996-CA-001362-MR
1996-CA-001414-MR
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 95-CI-3078
LAYDELL SILCOX
APPELLEE/CROSS-APPELLANT
OPINION AND ORDER
REVERSING AND REMANDING APPEAL NO. 1996-CA-001362-MR
DISMISSING CROSS-APPEAL NO. 1996-CA-001414-MR
** ** ** ** **
BEFORE: BUCKINGHAM, GUIDUGLI and HUDDLESTON, Judges.
GUIDUGLI, JUDGE.
The City of Louisville (the City) appeals from
a judgment entered by the Jefferson Circuit Court on March 8,
1996, in favor of appellee Laydell Silcox (Silcox) in the amount
of $18,314.42.
We reverse and remand on the City’s direct appeal
and dismiss Silcox’s cross-appeal as moot.
On June 12, 1994, Silcox and several of his friends
drove to Otter Creek Park (the Park), which is owned by the City.
Silcox entered the park at the Garnettsville Picnic Area
entrance.
Testimony at trial showed that a sign at this entrance
to the park stated “Entrance Fee 2.00 Per Car.”
In regard to
this fee, Robert Elliot (Elliot), then interim Director of the
Park, testified that at specified times on weekends there is a
charge to park in the Garnettsville Picnic Area lot.
The purpose
of the fee is to control the number of cars entering the lot
during peak hours, and the fee is per car regardless of the
number of people in the car.
Pedestrians and bicyclists can
enter the park at the Garnettsville Picnic Area entrance at no
cost.
Elliot testified that there are other entrances to the
park and other parking areas which are free, and that no fee is
charged to hike or have access to the banks of Otter Creek.
Silcox and his friends hiked to Otter Creek.
Silcox
jumped into Otter Creek from a five foot embankment and sustained
a severe injury to his heel and foot.
Silcox testified that the
water was muddy because others were in the creek, he could not
see what he was jumping into, and that he would not have known if
a log was in the water before he jumped.
Silcox testified that
one of his friends jumped in before he did and the water was
chest high.
Silcox filed suit to recover damages for the injuries
he received.
During trial, the City moved for a directed verdict
on the ground that the Kentucky Recreational Use Statute
(Kentucky Revised Statutes (KRS) 411.190) rendered it immune to
Silcox’s complaint and that the City had no duty to warn Silcox
of open and obvious hazards at common law.
The trial court
denied the City’s motion, and judgment was rendered in favor of
Silcox in the amount of $18,314.42.
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KRS 411.190 provides in pertinent part:
....
(2)
The purpose of this section is to
encourage owners of land to make
land and water areas available to
the public for recreational
purposes by limiting their
liability toward persons entering
thereon for such purposes.
(3)
Except as specifically recognized by or
provided in subsection (6), an owner of land
owes no duty of care to keep the premises
safe for entry or use 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.
(4)
Except as specifically recognized by or
provided in subsection (6), 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:
(a) Extend any assurance that the
premises are safe for any purpose.
(b) Confer upon such person the legal
status of an invitee or licensee to whom
a duty of care is owned.
(c) Assume responsibility for or incur
liability for any injury to person or
property caused by an act or omission of
such persons.
....
(6)
Nothing in this section limits in
any way any liability which
otherwise exists:
(a) For willful or malicious
failure to guard or warn against a
dangerous condition, use,
structure, or activity.
(b) For injury suffered in any case
where the owner of land charges the
person or persons who enter or go
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on the land for recreational use
thereof, except that in the case of
land leased to the state or a
subdivision thereof, any
consideration received by the owner
for such lease shall not be deemed
a charge within the meaning of this
section.
KRS 411.190(2), (3), (4), and (6).
“Charge” is defined as “the
admission price or fee asked in return for invitation or
permission to enter or go upon the land.”
KRS 411.190(1)(d).
The City contends on appeal that the fee charged to park at the
Garnettsville Picnic Area is not a “charge” which would destroy
its immunity under KRS 411.190.
There is no case law in Kentucky construing the word
“charge” as used in KRS 411.190.
However, Georgia has considered
this exact issue under a recreational use statute which is almost
identical to Kentucky’s.
In Majeske v. Jekyll Island State Park
Authority, 433 S.E.2d 304 (Ga. App. 1993), persons entering
Jekyll Island by car were charged a $1.00 parking fee.
The fee
was payable per car and was not dependent on the number of people
in the car.
No fee was charged for people who came to the island
by foot, boat, airplane, non-motorized vehicle, or any other
vehicle not required by law to be registered or operated by
someone holding a valid license.
Plaintiff, who had paid the
$1.00 fee, sustained an injury to her ankle while stepping off a
foot bridge.
In holding that the $1.00 fee did not constitute a
charge which would nullify immunity under Georgia’s recreational
use statute, the Court stated:
[T]he undisputed evidence shows that
defendant’s $1 charge is strictly a vehicle
parking fee which is imposed only if entering
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the property in a licensed, motorized ground
vehicle. [citation omitted]. The fact that
vehicle reentry is not permitted without
additional payment is not evidence that the
charge is an admission fee. For the charge
to constitute an admission fee it must be
established that it is imposed in return for
recreational use of the land.
Majeske, 433 S.E.2d at 305-306.
Important to the Court’s
decision was evidence that the charge was levied per vehicle
without regard for the number of people inside and that no fee
was charged to those coming onto the island by other means.
at 306.
Id.
Georgia courts have consistently interpreted the state’s
recreational use statute to find that mere payment of a pervehicle fee to enter and park in a recreational area does not
destroy the immunity granted by the statute.
See Quick v. Stone
Mountain Memorial Association, 420 S.E.2d 36 (Ga. App. 1992);
Hogue v. Stone Mountain Memorial Association, 358 S.E.2d 852 (Ga.
App. 1987); Stone Mountain Memorial Association v. Herrington,
171 S.E.2d 521 (Ga. 1969).
Other jurisdictions with similar
recreational use statutes have reached the same conclusion.
See
Flohr v. Pennsylvania Power & Light Co., 800 F.Supp. 1252 (1992)
(fee paid to rent campsite at park did not destroy park’s
immunity under state’s recreational use act where recreational
facilities could be used free of charge); Reed v. City of
Miamisburg, 644 N.E.2d 1094 (Ohio App. 1993) (payment of fee to
use picnic shelter at park where plaintiff was not required to
pay fee to use any of park’s other facilities did not affect
city’s immunity under Ohio recreational use statute); Garreans by
Garreans v. City of Omaha, 345 N.W.2d 309 (Neb. 1984) (payment of
fee to use camper pad at park where no charge was made to enter
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and use facilities at park did not remove city’s immunity under
Nebraska’s recreational use statute).
We believe the same conclusion is compelled in this
case.
The evidence supports the City’s argument that the $2.00
fee was charged to park at the Garnettsville lot and was not a
fee to enter upon the land and use the park for recreational
purposes.
Pedestrians and bicyclists could use the same entrance
for no fee, there were other entrances into the park where no fee
was charged, and there are other parking areas in the park which
can be used for no charge.
As the fee was paid to park in that
particular lot only and was clearly not paid in exchange for
permission to enter the park and enjoy its facilities, the City
was immune from liability under KRS 411.190.
Silcox argues that Midwestern, Inc. v. Northern
Kentucky Community Center, Ky. App., 736 S.W.2d 348 (1987),
compels the opposite result.
In that case, which involved a 17
year old who was injured when he dove into a municipal swimming
pool, children under the age of 18 were admitted free during
certain times of the week and charged fifty cents to enter during
other times.
On the day the child was injured, he entered the
pool without paying the fee.
In holding that the fact that the
child would have to pay a fee at certain times to enter the park
did not remove the City’s immunity from liability under KRS
411.190, the Court held that the language of the statute
controlled and stated:
According to the explicit provisions of
KRS 411.190, the payment of a “charge” for
permission to enter upon land for
recreational use, including swimming (and,
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logically, diving), is the one element
necessary to defeat the blanket immunity
granted by the statute. Although Abner may
have been subject to an admission charge at
other times and had paid such charges before
the date of his accident, it is undisputed
that, on the day in question, he was not
charged, nor did he pay, a fee for admission
into the center’s pool. As the element of
payment of an admission fee is missing and
there are no allegations of conduct rising to
the level of wilful negligence, the City and
center are entitled to the immunity granted
by KRS 411.190 and the appellant’s claim
against them must necessarily fail.
Midwestern, 736 S.W.2d at 351.
Silcox argues that logic would
dictate that the opposite conclusion be reached where it can be
shown that an injured party paid a fee on the date in question.
We disagree.
As the Court pointed out, we are bound by the clear
language of KRS 411.190, which requires that a charge be paid.
Id.
As we have determined that the $2.00 fee paid by Silcox was
not a charge as defined by the language of KRS 411.190,
Midwestern has no application to this case.
We also do not believe that the City acted willfully or
maliciously in this case so as to fall under the exception to the
recreational use statute provided by KRS 411.190(6)(a).
We
believe our decision on this point is controlled by this Court’s
opinion in Collins v. Rocky Knob Associates, Inc., Ky. App., 911
S.W.2d 608 (1996), where it was held that a marina did not act in
a willful and malicious fashion in regard to the drowning of two
individuals who went for a midnight swim.
The Court stated:
...the situation before us involves a theory
of “passive negligence,” where the harm was
allegedly caused by what the defendant did
not do, but should have done. Rocky Knob did
not create the lake nor is there any
assertion that the deaths were caused by any
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unusual features maintained on the premises.
As the trial court noted, various theories
alluded to how the drownings might have
occurred, such as the cold water impeded the
victims ability to swim to shore; one or both
were injured on jagged rocks at the bottom of
the lake; alcohol may have attributed to
their drowning; or they were possible victims
of foul play. Because no evidence was shown
tending to support any of these theories,
they can only be viewed as speculation. The
only thing that is clear is that the deaths
were by drowning in the lake waters. From
the proof it must be concluded that any
hazardous condition and the risk of swimming
was reasonably obvious to the decedents and
not of Rocky Knob’s making. The risks were
natural and inherent to bodies of water.
Rocky Knob was entitled to assume that the
decedents would see and observe that which
would be obvious through the reasonably
expected use of an ordinary person’s senses
and would act accordingly. KRS 411.190(7)(b)
specifically provides that a person using the
land of another for recreational purposes is
not relieved from his obligation to exercise
care as otherwise required by law. The
failure of Rocky Knob to guard or warn
against the dangerous condition cannot be
said to be “willful or malicious.”
Collins, 911 S.W.2d at 611-612.
Like Rocky Knob, the City did not create Otter Creek or
introduce any object into the Creek which could have resulted in
Silcox’s injury.
Silcox admitted that the water was muddy, that
he could not see what he was jumping into, and that there was no
way for him to tell if there were any obstructions beneath the
surface of the water.
In this situation, it is reasonable to
conclude that the risks of jumping into muddy waters of a creek
were natural and inherent to the creek in its natural condition
and were reasonably obvious to Silcox.
We do not believe that
the City acted willfully or maliciously in this case.
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Silcox raises several arguments on cross-appeal which
are now moot due to our reversal of the judgment entered against
the City.
However, Silcox does raise one argument on cross-
appeal pertaining to Kentucky’s Recreational Use Statute which
needs to be addressed.
Silcox argues that the trial court erred in refusing to
allow him to introduce evidence regarding regulations pertaining
to public swimming and bathing facilities, namely 902 KAR 10:120.
Silcox maintains that these regulations effectively repeal KRS
411.190 in regard to pools and beaches.
While there are no
Kentucky cases dealing with this issue, at least one jurisdiction
has held that regulations pertaining to the operation of swimming
pools override any immunity granted by a recreational use
statute.
See Rivera v. Philadelphia Theological Seminary of St.
Charles Barromeo, Inc., 474 A.2d 605 (Pa. Super. Ct. 1984),
modified, 507 A.2d 1 (Pa. 1986).
For purpose of Kentucky’s regulations pertaining to
swimming and bathing facilities, a “public swimming and bathing
facility” is defined as “any natural or artificial body or basin
of water which is modified, improved, constructed, or installed
for the purpose of public swimming or bathing[.]” (emphasis
added).
902 KAR 10:120 § 2(46).
Silcox points to Elliot’s
testimony that the City’s drawing of water from the Creek and
removal of gravel from the Creek to clear the intake valve could
have an effect on the Creek’s level as evidence that the stream
has been modified.
Silcox also maintains that the fact that
-9-
there were picnic tables nearby and marked hiking trails to the
Creek encouraged people to come to the site.
Once again, the plain language of the regulation at
issue controls.
Under the language of the regulation, a creek
such as Otter Creek is not a public swimming or bathing facility
unless it has been modified or improved “for the purpose of
public swimming or bathing.”
902 KAR 10:120 § 2(46).
We do not
believe that the City’s removal of water and gravel from Otter
Creek was done for the purpose of improving or modifying the
Creek for swimming purposes.
The same is true as to the picnic
tables and hiking trails; while they enhance the park’s
recreational value, those items do nothing to improve or modify
Otter Creek for swimming purposes.
Furthermore, Elliot testified
that the City has never undertaken any modifications to Otter
Creek for the purpose of swimming, and Silcox offered no evidence
to the contrary.
Thus, 902 KAR 10:120 does not apply in this
case, and the trial court did not err in refusing to allow Silcox
to present 902 KAR 10:120 into evidence at trial.
Having considered the parties’ arguments on appeal, the
judgment of the Jefferson Circuit Court entered March 8, 1996, is
reversed and this matter is remanded with instructions to enter a
judgment consistent with this opinion.
As the issues which were
raised by Silcox and not addressed in this opinion are rendered
moot by our reversal of the judgment, Silcox’s cross-appeal is
dismissed.
ALL CONCUR.
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/s/ Daniel T. Guidugli
JUDGE, COURT OF APPEALS
ENTERED: September 4, 1998
BRIEF AND ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT:
William C. Stone
Thomas Lukins
Louisville, KY
Harris J. Berman
Louisville, KY
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