RECREATIONAL USE STATUTES / REQUIREMENT OF ACTUAL KNOWLEDGE OF THE RISK OF HARM - EX PARTE CITY OF GUNTERSVILLE
Ex parte City of Guntersville, [Ms. 1151214, May 26, 2017] __ So. 3d __ (Ala. 2017). The Court (Parker, J., and Stuart, C.J., and Bolin, Main, and Bryan, JJ., concur) reverses a judgment of the Marshall Circuit Court denying a motion for summary judgment by the City of Guntersville in an action by a visitor to the City’s Civitan Park who was injured in a nighttime trip and fall incident following a fireworks presentation. The City contended it was immune from liability under §§ 35-15-1, et seq., and 35-15-20, et seq., Ala. Code 1975 (Alabama’s Recreational-Use statutes) based upon an affidavit from a city employee establishing that the City had no actual knowledge that conditions in the park presented a dangerous condition.
The Court first noted that a denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for a writ of mandamus. Ms. *8, citing Ex parte Rizk, 791 So. 2d 911 (Ala. 2000) and Ex parte Nall, 879 So. 2d 541 (Ala. 2003).
The Court then set forth applicable law concerning the recreational-use statutes:
“Sections 35-15-1 through -5[, Ala. Code 1975,] of the recreational use statutes, appearing in Article 1 of Chapter 15, define and limit the duties of an owner of recreational land in relation to a person using the land for recreational purposes. Under these sections, ‘[a]n owner, whether public or private, owes no duty to users of the premises except for injury caused by a willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.’ Poole v. City of Gadsden, 541 So. 2d 510 (Ala. 1989); § 35–15–3, Ala. Code 1975.
“Unlike Article 1, Article 2, consisting of §§ 35-15-20 through -28, [Ala. Code 1975,] applies specifically to owners of noncommercial public recreational land, such as the City here. These sections ‘provide such landowners with even greater protections than §§ 35-15-1 through -5.’ Poole, at 513. See also Grice v. City of Dothan, 670 F. Supp. 318, 321 (M.D. Ala. 1987) (‘[Article 2] further limits the liability of owners of land’); Clark v. Tennessee Valley Authority, 606 F. Supp. 130 (N.D. Ala. 1985) (‘[Article 2] provides [landowners] even tighter limitations than [Article 1]’). The recreational use statutes appearing in Article 2 provide the following limitations on landowner duty and liability:
“‘§ 35-15-22[, Ala. Code 1975].
“‘Except as specifically recognized by or provided in this article, an owner of outdoor recreational land who permits non-commercial public recreational use of such land owes no duty of care to inspect or keep such land safe for entry or use by any person for any recreational purpose, or to give warning of a dangerous condition, use, structure, or activity on such land to persons entering for such purposes’
“‘§ 35-15-23[, Ala. Code 1975].
“‘Except as expressly provided in this article, an owner of outdoor recreational land who either invites or permits non-commercial public recreational use of such land does not by invitation or permission thereby:
“‘(1) Extend any assurance that the outdoor recreational land is safe for any purpose; “‘(2) Assume responsibility for or incur legal liability for any injury to the person or property owned or controlled by a person as a result of the entry on or use of such land by such person for any recreational purpose; or “‘(3) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.’”
Ms. *9-10, quoting Ex parte City of Geneva, 707 So. 2d 626, 628-29 (Ala. 1997).
Plaintiff contended that summary judgment was not warranted because she presented substantial evidence meeting the exception exceptions to liability provided in § 35-15-24, which states:
“(a) Nothing in this article limits in any way legal liability which otherwise might exist when such owner has actual knowledge:
“(1) That the outdoor recreational land is being used for non-commercial recreational purposes;
“(2) That a condition, use, structure, or activity exists which involves an unreasonable risk of death or serious bodily harm;
“(3) That the condition, use, structure, or activity is not apparent to the person or persons using the outdoor recreational land; and
“(4) That having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences.
“(b) The test set forth in subsection (a) of this section shall exclude constructive knowledge by the owner as a basis of liability and does not create a duty to inspect the outdoor recreational land.”
Ms. *11. The Court rejects the victim’s contention finding that she failed to meet her burden of presenting substantial evidence of each of the elements set forth in § 35-15-24(a)(1)-(4). Ms. *12. Specifically, while the victim’s expert witness offered opinion testimony to the effect that the City had constructive notice of the risk of harm, that opinion did not meet the statutory requirement of § 35-15-24(a) because § 35-15-24(b) “specifically states that ‘[t]he test set forth in subsection (a) of this section shall exclude constructive knowledge by the owner as a basis of liability ...’” Ms. *14 (emphasis in original). In other words, a plaintiff asserting a claim against a real property owner who contends it is immune on the basis of the recreational-use statutes must prove that the owner had actual knowledge of “a condition, use, structure, or activity ... which involves an unreasonable risk of death or serious bodily harm” in order to proceed against the landowner for personal injury or wrongful death.