(251) 299-0101

Recreational Use Statute

Ex parte Town of Dauphin Island, [Ms. 1170424, Sept. 28, 2018] __ So. 3d __ (Ala. 2018). The Supreme Court (Bolin, J; and Stuart, C.J., and Parker, Main, Wise, Sellers, and Mendheim, JJ., concur; Shaw and Bryan, JJ., concur in the result) grants a petition for a writ of mandamus directing the Mobile Circuit Court to set aside its order denying Dauphin Island's motion for summary judgment premised upon the recreational-use statute, § 35-5-1 et seq., Ala. Code 1975, and to enter summary judgment in Dauphin Island's favor in claims brought on behalf of a child who suffered a broken leg when a tree limb holding a swing on a public park fell causing injury.

Quoting Ex parte City of Guntersville, 238 So. 3d 1243, 1246-47 (Ala. 2017), the Court reiterates Alabama's recreational-use principles:

"In Ex parte City of Geneva, 707 So. 2d 626 (Ala. 1997), this Court set forth the following 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."'

"707 So. 2d at 628–29."

Ex parte City of Guntersville, 238 So. 3d 1243, 1246-47 (Ala. 2017).

Ms. *14-16. The Court notes § 35-15-24 carves out an exception to liability limitations when the owner of recreational land has knowledge but chooses not to guard or warn of conditions, uses, structures, or activity on the land which involve an unreasonable risk of death or serious bodily harm:

Section 35-15-24, Ala. Code 1975, "carves out an exception to the liability limitations provided in §§ 35-15-22 and -23." Ex parte City of Geneva, 707 So. 2d at 629. Section 35-15-24 provides:

"(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. *16-17.

In the end, the Court concludes there was no substantial evidence that Dauphin Island had actual knowledge of "a condition ... [that] exist[ed] which involve[d] an unreasonable risk of death or serious bodily harm" as required to invoke the exception to liability established by § 35-15-24(a)(2). Accordingly, Dauphin Island established a clear legal right to the relief sought requiring the granting of its petition for a writ of mandamus and an order directing the Mobile Circuit Court to set aside its order denying the motion for summary judgment based upon the recreational-use statutes and to enter a summary judgment in favor of Dauphin island.

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