BETTIE VARGAS v. CITY OF PADUCAH
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RENDERED: JUNE 9, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002306-MR
BETTIE VARGAS
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 04-CI-00597
v.
CITY OF PADUCAH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND HENRY, JUDGES.
HENRY, JUDGE:
Bettie Vargas appeals from an October 7, 2004
order of the McCracken Circuit Court dismissing her negligence
action against the City of Paducah.
Upon review, we affirm.
On August 8, 2003, Vargas was attending a family
reunion at the Anna Baumer Community Center located in Bob Noble
Park, which is owned and operated by the City of Paducah.
In
order to use the community center, the family was required to
pay a $45.00 fee that was shared by all persons in attendance,
including Vargas.
While walking from her vehicle to the center,
Vargas tripped over a concrete structure that was allegedly
obscured by grass and suffered injury as a result.
On July 14, 2004, Vargas filed a complaint against the
City in McCracken Circuit Court.
In this complaint, Vargas
alleged that the City negligently and recklessly failed to
maintain the concrete structure on which she tripped in a
reasonable and safe condition, and that it failed to properly
warn park patrons of the structure’s condition.
Vargas further
alleged that, as a result of the City’s negligence, she suffered
bodily injury, medical expenses, physical and mental pain and
suffering, lost wages, and a permanent impairment of her ability
to earn money.
On July 6, 2004, the City filed a motion to dismiss,
arguing that Vargas’ suit was barred by KRS1 411.190, the
Recreational Use Statute.
Vargas argued in response that the
statute did not apply to her because her family was charged the
$45.00 fee for the use of the park’s community center.
In its
reply, the City provided the affidavit of Mark Thompson, the
director of park services.
Thompson stated that while the
$45.00 fee entitled Vargas and her family to exclusive use of
the center, it was not a rental fee or a charge to use the park
itself.
1
He further noted that all other park amenities, with
Kentucky Revised Statutes.
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the exception of the pool, were free, and that had the center
not been reserved, the family still would have been able to use
it free of charge if it was not being used by anyone else.
On October 7, 2004, the trial court entered an order
granting the City’s motion to dismiss.
The court concluded that
the City was entitled to immunity from suit under KRS 411.190
because Vargas’ use of the park fell within the recreational
uses contemplated by the statute and because the fee that the
family paid was not in return for invitation or permission to
enter the park itself and therefore did not constitute a
“charge” destroying immunity under the terms of KRS 411.190.
This appeal followed.
The primary issue on appeal is whether Vargas’ action
is viable despite the blanket immunity against suit contained in
KRS 411.190(4), which provides:
(4) Except as specifically recognized by or
provided in subsection (6) of this section,
an owner of land who either directly or
indirectly invites or permits without charge
any person to use the property for
recreation purposes does not thereby:
(a) Extend any assurance that the premises
are safe for any purpose;
(b) Confer upon the person the legal status
of an invitee or licensee to whom a duty of
care is owed; or
(c) Assume responsibility for or incur
liability for any injury to person or
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property caused by an act or omission of
those persons.
(Emphasis added).
KRS 411.190(6) provides:
(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; or
(b) For injury suffered in any case where
the owner of land charges the person or
persons who enter or go on the land for the
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 the lease shall
not be deemed a charge within the meaning of
this section.
(Emphasis added).
Given the language of these provisions and
the fact that there is no dispute that Vargas was at the park
for recreational purposes, the specific question to be answered
in our analysis is whether the fee contribution paid by Vargas
constituted a “charge” under the statute, thus excluding the
application of KRS 411.190(4) and permitting her suit to
proceed.
See Midwestern, Inc. v. Northern Kentucky Community
Center, 736 S.W.2d 348, 351 (Ky.App. 1987) (“According to the
explicit provisions of KRS 411.190, the payment of a ‘charge’
for permission to enter upon land for recreational use ... is
the one element necessary to defeat the blanket immunity granted
by the statute.”).
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KRS 411.190(1)(d) defines “charge” – in relevant part
- as “the admission price or fee asked in return for invitation
or permission to enter or go upon the land[.]”
Vargas argues
that she was “charged” for purposes of the statute because she
contributed to the $45.00 fee paid for use of the park community
center.
We disagree, as we believe that the fee in question is
not a “charge” as contemplated by the plain language of KRS
411.190, as the record shows that it was not imposed “in return
for invitation or permission to use” the park for recreational
purposes.
Instead, the fee simply ensured that Vargas’ family
would be entitled to exclusive use of the community center.
Moreover, even if the fee had not been paid, the family still
would have been free to use any location within the park at no
cost – including the community center if it was not being used
at the time.
We also note that Vargas’ purported injuries
occurred outside of the community center in the park itself,
which – again - was freely available to the general public.
Accordingly, we conclude that the blanket immunity from suit
contained within KRS 411.190 is applicable here, and Vargas’
action was properly dismissed.
In further support of our holding, given that Kentucky
case law does not contain a decision directly on point with the
issue presented here (as it has only rarely dealt with KRS
411.190), we note that the Ohio Court of Appeals dealt with a
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strikingly similar factual scenario in Reed v. City of
Miamisburg, 644 N.E.2d 1094 (Ohio App. 1993), a case we cited
with approval in City of Louisville v. Silcox, 977 S.W.2d 254
(Ky.App. 1998).
Silcox, 977 S.W.2d at 256-57.
In Reed, the
appellant filed suit against the City of Miamisburg, Ohio after
stepping into an unfilled hole at a park owned by the City while
attending a family reunion.
The appellant’s family had rented
and paid for a shelter house at the park in order to ensure the
availability and use of the shelter.
Accordingly, the appellant
argued that, under this set of facts, the Ohio recreational use
statute2 did not apply to his case because he had paid a fee to
use the shelter.
Id. at 1095.
The Ohio Court of Appeals disagreed, holding: “The
evidence in this case indicates that appellant was not required
to pay a fee in order to utilize the overall benefits of Mound
Park.”
Id. (Italics in original).
It continued: “Mound Park
offered more than a shelter house - it offered an Indian burial
site, swings and other playground equipment, as well as other
‘green space’ the appellant could have used without providing
any consideration. We must therefore conclude that the trial
court appropriately applied the recreational user statute below,
and that the appellee owed no duty to appellant as a matter of
law.”
Id. at 1095-96.
We believe that this reasoning is
2
It should be noted that we have previously recognized that Ohio’s
recreational use statute is similar to our own. Silcox, 977 S.W.2d at 256.
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similarly applicable here, as there is no dispute that Bob Noble
Park was available without payment of a fee to anyone who wished
to use it.
We finally address Vargas’ contention that we should
decide this case in conjunction with our previous decision in
Midwestern, Inc. v. Northern Kentucky Community Center, supra.
In Midwestern, the appellant was seriously injured when he dived
from a three-meter board and hit the bottom of a community
center pool.
He afterward filed suit.
The community center
subsequently moved for summary judgment, relying on the immunity
provision of KRS 411.190, and the motion was granted by the
trial court.
Midwestern, 736 S.W.2d at 349.
On appeal, the appellant argued that the community
center should not be entitled to immunity because, although he
was not charged and did not pay an admission fee at the time he
entered the pool, the center did charge specified fees during
certain times of each day.
Id. at 350.
We disagreed and
concluded that the immunity provision of KRS 411.190 was
applicable because the plain language of the statute required
that a charge be paid in exchange for the ability to use land
for recreational purposes in order for immunity to be destroyed.
Id. at 351.
As the appellant did not have to pay to use the
pool on that day – even if a fee was required at other times –
the community center was entitled to immunity.
-7-
Id.
Vargas argues that Midwestern mandates a ruling in her
favor because, in this case, a fee was paid for use of the
community center.
However, as we have concluded that the $45.00
fee here was not a “charge” under the meaning of KRS 411.190, we
find that Midwestern has no application to this case.
All arguments having been considered, the judgment of
the McCracken Circuit Court is hereby affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Edwards
Paducah, Kentucky
Glenn D. Denton
Paducah, Kentucky
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