Gibson v. Keith

• Decision Date: 20 November 1984
• Citation: 492 A.2d 241
• Parties: John E. GIBSON, individually and trading as John E. Gibson-Victor G. Trapasso Limited Partnership, Victor G. Trapasso, individually and trading as John E. Gibson-Victor G. Trapasso Limited Partnership, Gerald Wilgus, individually and trading as John E. Gibson-Victor G. Trapasso Limited Partnership, Defendants-Appellants, v. Richard KEITH, Sr., Margaret Keith and Richard Keith, Jr., Plaintiffs-Appellees, and Melvin L. Joseph Construction Co., a Delaware corporation, Defendant-Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 241

492 A.2d 241

John E. GIBSON, individually and trading as John E Gibson-Victor G. Trapasso Limited Partnership, Victor G Trapasso, individually and trading as John E. Gibson-Victor G. Trapasso Limited Partnership, Gerald Wilgus, individually and trading as John E. Gibson-Victor G. Trapasso Limited Partnership, Defendants-Appellants, v. Richard KEITH, Sr., Margaret Keith and Richard Keith, Jr. Plaintiffs-Appellees and Melvin L. Joseph Construction Co., a Delaware corporation, Defendant-Appellee.

Supreme Court of Delaware.

Submitted: Nov. 20, 1984.

Decided: April 26, 1985.

Upon appeal from Superior Court. Affirmed.

F. Alton Tybout (argued) of Tybout, Redfearn, Casarino & Pell, Wilmington, for defendants-appellants.

Bruce M. Stargatt (argued), Arthur Inden, Richard A. Zappa, and James L. Patton, Jr. of Young, Conaway, Stargatt & Taylor, Wilmington, for plaintiffs-appellees.

Before HORSEY, MOORE and CHRISTIE, JJ., and HARTNETT and WALSH, Vice Chancellors.

HORSEY, Justice:

This interlocutory appeal of a personal injury suit pending before trial in Superior Court was accepted to determine a limited issue of statutory construction: What property owners are entitled to invoke the provisions of 7 Del.C., chapter 59 in defense of tort claims asserted by strangers injured on private property in the course of recreational pursuits?

The suit arises from a swimming accident in the summer of 1980 at a water hole in a gravel pit in an isolated area of Sussex County. Plaintiff, Richard Keith, Jr., then a 17-year old minor, suffered paralytic injuries when he dove into shallow water from a rope swing affixed to a nearby tree. Defendants-appellants, John E. Gibson, Victor G. Trapasso, and Gerald Wilgus, doing business as a limited partnership, are the owners of the commercial borrow pit, the general control of which was contracted out to defendant Melvin L. Joseph Construction Co., a Delaware corporation ["Joseph"]. Joseph is not a party to the appeal. ¹

After extensive discovery, the defendant-owners moved the Superior Court for summary judgment on three grounds: one, that the claim was barred by 7 Del.C., ch. 59, titled, "Public Recreation on Private Lands"; two, that plaintiff Keith was a trespasser to whom defendants breached no duty as a matter of law; and three, that Keith was contributorily negligent as a matter of law. The Court found that factual issues precluded summary judgment on any of the three grounds. However, the Court interpreted 7 Del.C., ch. 59 as applicable to only those landowners "who directly or indirectly invite or permit without charge any person to use the property for recreational purposes." (emphasis added). 7 Del.C. § 5904. The Court then ruled that since defendants had denied giving Keith permission to enter and swim in the borrow pit, the statute was not available to defendants, as a matter of law. Defendants sought to appeal this ruling; but in view of the unresolved factual issues found by the Trial Court, we limited our acceptance of the interlocutory appeal "solely to the questions involving the Superior Court's interpretation of 7 Del.C., ch. 59."

Limiting ourselves to the narrow question certified for appeal, we affirm Superior Court's construction of 7 Del.C., ch. 59: that the statute may only be invoked to limit the liability of real property owners "who directly or indirectly invite or permit without charge" the public at large to use their property for recreational purposes. We thereby reject defendants' contentions to the contrary: (1) that 7 Del.C., ch. 59 does not require an "invitation" or "permission" in order to apply; (2) that the statute's protection extends to any lands that are "available" for putting to recreational use without regard to the intent of the owner that they be so used; and (3) that the statute's protection extends to claims of trespassers, i.e., the uninvited as well as the invited.

In our view, an invitation or permission (direct or indirect) extended by a landowner to the public to enter without charge for recreational purposes is a sine qua non for invoking the statute's protective benefits. But, to secure the statute's benefits, an owner is not required to make an explicit "offer" of land or water areas for recreational use. We base this result upon what we find to be the statute's underlying purpose: to encourage landowners to permit their private lands to be made available for public use for recreational purposes. In return, the statute grants such owners broad immunity against suit by a gratuitous public invitee injured while pursuing recreational activities. Thus, we hold that a landowner who undertakes affirmatively either to warn or bar the public from entry cannot assert the statute as a bar to a tort claim brought by a person who has entered the premises either with knowledge or in disregard of the owner's efforts to keep the public out.

In essence, a land or water area's particular conduciveness to recreational use and the owner's positive efforts to make such areas available without charge to the public for recreational use determine a landowner's right to invoke the statute. However, we limit application of the statute to the recreational use of essentially undeveloped land and water areas (primarily rural or semi-rural land, water or marsh) and we find it not applicable to urban or residential areas improved with swimming pools, tennis courts and the like.

We reach this result notwithstanding the purported anomaly of, in effect, depriving a property owner of the benefits of the statute by his having taken affirmative steps to warn and/or to bar the public from entering his property for recreational pursuits. Such an owner may, of course, assert any common law defense to liability. The logic of the contrary result is outweighed by the legislative mandate that the statute's protective benefits be confined to those landowners whose lands are opened for recreational use by the public. That is the Legislature's choice, and we are bound by it.

I

The statute raised by defendants as a bar to this suit, 7 Del.C., chapter 59, was enacted in 1966 as 55 Del.Laws, chapter 449. The construction of this statute is a question of first impression which, in view of the statute's age, may seem surprising. Indeed, defendants did not raise the statute, known as the Recreational Use Act, as a bar to plaintiffs' claim until the briefing of their motion for summary judgment, some 18 1/2 months after the Complaint was filed. ² We set out all pertinent provisions of the statute below. ³

The parties are in fundamental disagreement over whether the statute should be given a broad or a narrow application. And the crux of their differences lies in whether a property owner must extend an invitation or grant permission to the public to enter for recreational purposes in order to invoke the statute's limitations against liability.

Apart from a preliminary observation that the statute "is intended for application to large open spaces and not to urban or residential circumstances", defendants urge the Court to construe the statute as, first, having general application to all landowners "of large open spaces" and, second, as affording protection against all persons entering upon such areas for recreational purposes without regard for the status of such persons, i.e., whether they are trespassers, licensees or invitees (subject only to limitations on exemption from liability found in § 5906).

Defendants thereby place predominant reliance upon the language of § 5903 as defining the scope of the limited immunity conferred by the statute. Because § 5903 does not qualify the owners to whom it applies, i.e., confine its application to owners who invite or permit entry by the public for recreational use, defendants reason that all owners (of such lands) may invoke the statute in defense of an injury suit such as this. Defendants also reason that because § 5903 does not qualify the "persons entering" upon the owners' lands as invitees or licensees, § 5903 "clearly covers all persons on the land for recreational purposes regardless of their status as trespassers, licensees or invitees...."

To rebut the contention that such a construction of § 5903 is inconsistent with the provisions of § 5904, defendants down-play the significance of § 5904. Under defendants' view of the Act, § 5904 serves only to "make clear" that the immunity conferred by § 5903 applies not only to landowners faced with trespassers but "even" to landowners who have invited or permitted third parties to use their lands for recreational purposes. In defendants' words, "the purpose of § 5904 is to make clear that even if there is an invitation or permission, the limited immunity conveyed by § 5903 endures." Thus, defendants construe the statute as intended to limit the liability of all landowners (of areas within the Act's coverage) including those who have attempted to prevent entry by the public and not simply those landowners who have invited or permitted entry by the public for recreational use. Finally, defendants argue that this result is consistent with the underlying purpose of the statute as stated in § 5901: since defendants' water hole was "available" for plaintiff's use (and was made use of by Keith despite defendants' efforts), defendants should be permitted to invoke the liability benefits of Chapter 59. ⁴

II

While defendants' arguments are plausible, indeed imaginative, we are not persuaded that the Delaware statute relating to public recreation on private lands may be invoked by a property owner who takes affirmative steps to deny the public access to such lands for recreational use or any other purpose. We hold that the statute must be construed as intended only for the benefit of owners of private property who evidence intent to permit the public to enter for recreational use. Thus, the statute may not be invoked against one who enters as a trespasser and not as a...