Jacobsen v. City of Rathdrum

• Decision Date: 12 September 1988
• Docket Number: No. 16901,16901
• Citation: 766 P.2d 736,115 Idaho 266
• Parties: Dustin JACOBSEN, a minor child; and Judy L. Hamlin, a single woman, Plaintiffs-Appellants, v. The CITY OF RATHDRUM, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 736

766 P.2d 736

115 Idaho 266

Dustin JACOBSEN, a minor child; and Judy L. Hamlin, a single woman, Plaintiffs-Appellants, v. The CITY OF RATHDRUM, Defendant-Respondent.

No. 16901.

Supreme Court of Idaho.

Sept. 12, 1988.

Sims, Liesche & Newell, P.A., Coeur d' Alene, for plaintiffs-appellants. W. Corey Cartwright argued.

Hull, Hull & Branstetter, Wallace, for defendant-respondent. Michael K. Branstetter argued.

JOHNSON, Justice.

This is a personal injury case. The primary issue is whether I.C. § 36-1604, Idaho's recreational use statute (the recreational use statute), precludes a claim on behalf of a two-year old child, who suffered irreparable and irreversible brain damage as the result of nearly drowning in a ditch that runs through the city park in Rathdrum (the city). The child's mother asserted claims on behalf of the child premised on the doctrine of attractive nuisance and on the wilful and wanton maintenance by the city of a dangerous condition in the park. We reverse the summary judgment granted by the trial court dismissing the complaint and hold that a owner may be liable for wilful or wanton conduct that causes injury to a person using the owner's land for recreational purposes. We conclude that there are genuine issues of material fact regarding the city's maintenance of a dangerous condition in the park that made it inappropriate to grant summary judgment as to the wilful and wanton conduct of the city. We affirm the trial court's granting of summary judgment on the issue of attractive nuisance, since we conclude that the facts presented in opposition to the motion do not support the application of the doctrine. We also hold that no showing of specific intent to use property for recreational uses is necessary for the application of the recreational use statute.

I.

THE FACTS.

The child lived with his mother and his siblings across the road from the park maintained by the city. There is a ditch in the park that is dry for most of the year but which swells with rapidly running water in the spring. Near the ditch are swings, slides and other playground equipment. The playground equipment is located near a bridge across the ditch. The bridge has a single horizontal rail located approximately three feet above the floor of the bridge.

On April 12, 1985 the child together with his mother, his siblings and some friends spent the better part of the day in the park. The child and his family returned home at approximately 3:00 p.m. The mother told the child to stay in the front yard and play with his sisters. Sometime later the mother found that the child was no longer in the yard and went to the park to find him. There she met one of the child's playmates as he was coming off the bridge. The playmate told her that the child had fallen into the ditch. A cigarette lighter with which the child often played was lying on the bridge. After being unable to find the child, she summoned neighbors to help search for him. The child was found about fifteen minutes later about one-half mile downstream. Although the child was revived, his near drowning resulted in severe anoxic encephalopathy with severe mental retardation, cerebral palsy and a seizure disorder.

The mother filed a timely tort claim notice with the city on behalf of the child claiming damages due to the injuries received from the near drowning. Subsequently, the mother filed this action on behalf of the child. The city filed a motion for summary judgment on the ground that the city is immune from liability by reason of the recreational use statute. In support of the motion the city relied on the pleadings on file and on an affidavit of the city clerk, in which the clerk asserted that the city had never received any complaints regarding the ditch, the bridge or the play equipment located in the park, that except for this action, the clerk was unaware of any accidents or deaths occurring in the park and that the city had no records of any accidents or deaths occurring in the park. The affidavit also attached three photographs showing the ditch and the playground equipment in the park.

In opposition to the motion the mother submitted affidavits of herself, the doctor who cared for the child following the near drowning, a psychologist, and the director of parks and recreation for Spokane County, Washington. The mother's affidavit set forth the facts concerning the child, the park, the swollen condition of the ditch, and the events leading up to the near drowning of the child. The affidavit of the doctor reported the child's medical condition following the near drowning. The affidavit of the psychologist recited his understanding of the events leading up to the near drowning of the child and contained the following statements:

A child of this age would not have formed an "intent" to go anywhere for "recreational" purposes.

....

A child of this age is not in a position to appreciate or comprehend any danger which may be associated with the bridge....

The affidavit of the Spokane County director of parks and recreation stated that he had examined photographs of the park, the placement of the playground equipment, the ditch and the bridge. His affidavit contained the following opinions:

In my opinion, the footbridge located in close proximity to the playground equipment is extremely dangerous to children and adults as well.... The footbridge is particularly dangerous to children six years of age or less who can either fall underneath the handrail into the ditch or swing from the handrail into the ditch.

It is also my opinion that the playground equipment is located too close to the irrigation ditch and the foot bridge. By placing the toys in the park, the City should reasonably expect that children will be attracted to the area. Locating the playground equipment so close to the irrigation ditch and bridge creates an unreasonable danger to children who would also be attracted to the water and bridge.

It is my opinion that the irrigation ditch located in the Rathdrum City Park is in a high use activity area and should be fenced or personnel should be assigned to supervise the area near the ditch.

In summary, I feel that the city of Rathdrum acted irresponsibly in creating a dangerous condition for children by placing playground equipment in close proximity to a hazardous foot bridge and near an unfenced, unsupervised irrigation ditch.

The trial court ruled that the recreational use statute applied to the child's near drowning, that there were no genuine issues of material fact, and that the recreational use statute precluded claims based on wilful or wanton conduct or an attractive nuisance. The trial court also concluded that the child was in the park for recreational purposes and that the question of his specific intent in being there was not an issue. The court granted summary judgment in favor of the city and dismissed the complaint. The mother has appealed from this order of the trial court.

II.

THE RECREATIONAL USE STATUTE DOES NOT PRECLUDE LIABILITY FOR WILFUL AND WANTON CONDUCT.

The portions of the Idaho recreational use statute that are pertinent to this case are as follows:

36-1604. Limitation of liability of landowner.--(a) Statement of Purpose. The purpose of this section is to encourage owners of land to make land and water areas available to the public without charge for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

(b) Definitions. As used in this section:

1. "Land" means private or public land, roads, trails, water, watercourses, private or public ways and buildings, structures, and machinery or equipment when attached to or used on the realty.

2. "Owner" means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.

3. "Recreational Purposes" includes, but is not limited to, any of the following or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, animal riding, motorcycling, snowmobiling, recreational vehicles, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites, when done without charge of the owner.

(c) Owner Exempt from Warning. An owner of land owes no duty of care to keep the premises safe for entry 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.

(d) Owner Assumes No Liability. An owner of land or equipment who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

1. Extend any assurance that the premises are safe for any purpose.

2. Confer upon such person the legal status of an invitee or licensee to whom a duty of care it owed.

3. Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

I.C. § 36-1604(a)-(d) (1977).

This Court has previously declined to take a position as to whether this statute "would absolve a landowner of liability for willful or wanton injury to a trespasser." Johnson v. Sunshine Mining Co., Inc., 106 Idaho 866, 871, 684 P.2d 268, 273 (1984), and Corey v. State, 108 Idaho 921, 923, 703 P.2d 685, 687 (1985). We now hold that the recreational use statute does not preclude liability of an owner for wilful or wanton conduct that causes the injury of a person using the owner's land for recreational purposes. We find this is an appropriate case in which to reach this decision, because we conclude that the child was using the park for recreational purposes and because there are genuine issues of material fact as to whether the city was wilful and wanton in maintaining a dangerous condition in the park that resulted in the near drowning of the child and the child's brain damage.

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