Johnson v. Rapid City Softball Ass'n, 18269

Decision Date30 March 1994
Docket NumberNo. 18269,18269
Citation514 N.W.2d 693
PartiesDarci Ann JOHNSON (Mohr), Plaintiff and Appellant, v. RAPID CITY SOFTBALL ASSOCIATION, and City of Rapid City, Defendants and Appellees.
CourtSouth Dakota Supreme Court

Marya Vrooman Rogers, Finch Bettmann Maks, P.C., Rapid City, for plaintiff and appellant.

Michael J. Larson, Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendants and appellees.

SABERS, Justice.

Injured softball player filed a complaint against Rapid City Softball Association and Rapid City alleging negligence. Circuit Court granted Defendants' motion for summary judgment because the South Dakota Recreational Use Statutes precluded liability and player signed a release. Player appeals. We reverse and remand.


On April 21, 1989, Darci Johnson (Johnson) signed up to play softball with the Arrow Bonding Outlaws. As required by the Rapid City Softball Association (Association), she signed a roster and paid her $15.00 player fee. A copy of the roster is attached to this opinion.

Johnson, the team manager and a practicing attorney, acknowledges that she signed a roster but not a release. Defendants claim that Johnson admitted that she saw the release prior to signing the roster. According to Johnson's deposition, however, she does not recall whether the release language was printed at the bottom of the roster when she signed it. Johnson testified that if it was, she did not read it.

Johnson injured her right ankle sliding into third base during a softball game on July 24, 1989. The injury occurred at Robbinsdale Park softball complex on one of several fields owned by the City of Rapid City (City). City leases the fields to Association for the purpose of operating a city softball league. Under the lease agreement, Association maintains the fields under the supervision of the City Parks Superintendent.

Johnson filed a Complaint against Association and City alleging negligence in the placement or maintenance of the third base bag. Defendants filed a Motion for Summary Judgment which was granted. Johnson appeals.

1. Whether the Recreational Use Statutes apply to a city-owned softball complex leased to an organized association for valuable consideration

when there is a $15 player fee. 1

The circuit court granted Defendants' Motion for Summary Judgment in part because "the South Dakota Recreational Use Statutes preclude liability on the part of the Defendants since the activity is one contemplated by the statutes, and no charge was made for entry onto the softball grounds." 2 "We review summary judgment determinations de novo, independent of the trial court's decision." Silingo v. Village of Mukwonago, 156 Wis.2d 536, 458 N.W.2d 379, 380 (Ct.App.1990) (citation omitted). The construction of a statute and its application to a set of facts present questions of law, matters reviewed by us without deference to the trial court's decision. Id. (citation omitted). 3

The three purposes of recreational use statutes are:

1. To encourage landowners to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes;

2. To refuse to impose upon farmers or other owners of vast tracts of land a duty of reasonable care to visitors who enter for recreational purposes because it would be burdensome and unfair, and

3. To encourage landowners to allow sportsmen to hunt on forest land for the purpose of thinning out excessively large herds of animals which were inhibiting forest production.

Joseph A. Page, The Law of Premises Liability § 5.14, at 117 (2nd ed. 1988). See also Welter, Premises Liability, 33 S.D.L.Rev. at 76 n. 85.

SDCL 20-9-13 provides:

Except as provided in § 20-9-16, an owner of land owes no duty of care to keep the land safe for entry or use by others for outdoor recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on his land to persons entering for outdoor recreational purposes.

And SDCL 20-9-12 provides in part:

(3) "Outdoor recreational purpose," includes, but is not limited to, any of the following activities, or any combination thereof: hunting, fishing, swimming other than in a swimming pool, boating, canoeing, camping, picnicking, hiking, biking, off road driving, nature study, water skiing, winter sports, snowmobiling, viewing or enjoying historical, archaeological, scenic or scientific sites[.]

SDCL 20-9-12(3) provides an extensive list of the activities included within the term "outdoor recreational purpose." While softball is not listed as an "outdoor recreational purpose," the activities are "not limited to" those listed.

Defendants cite Miller v. City of Dayton, 42 Ohio St.3d 113, 537 N.E.2d 1294 (1989), in support of their position that softball is an activity included within the definition of "outdoor recreational purpose." In Miller, however, the Ohio Supreme Court determined that the presence of man-made improvements on the property did not remove the property from statutory protection because the Ohio recreational use statute defined premises as "all * * * lands, ways, waters, and any buildings and structures thereon * * *." 537 N.E.2d at 1296 (emphasis in original) (citing R.C. 1533.-18(A)).

In comparison, the South Dakota statutes exempt from liability owners of land and define land as "land, trails, water, watercourses, private ways and agricultural structures, and machinery or equipment if attached to the realty." SDCL 20-9-12(1). The statute appears to exclude softball fields. See Miller, 537 N.E.2d at 1296 (the essential character of the property should fit within the intent of the statute). Additionally, the South Dakota statute demonstrates a pattern which does not include softball. While the legislature included "winter sports" within the list of activities, "summer sports," and specifically softball, were not listed. The inclusion by the legislature of the term "winter sports" seems to imply consideration and rejection of "summer sports." This indicates that the South Dakota statute does not apply to owners of softball fields.

The Recreational Use Statutes "are in derogation of the common law" and "must be strictly construed." Page, The Law of Premises Liability § 5.14, at 117. Therefore, we refuse to expand the list absent clear legislative intent that the list was intended to include summer sports and softball. See Robbins v. Great Northern Paper Co., 557 A.2d 614, 617 (Me.1989) (Glassman, J., dissenting). ("Since the recreational land use statute limits the common law tort liability landowners have toward licensees, ... the statute should 'be construed to alter the common law only to the extent that the Legislature has made that purpose clear' "). Because softball is not an activity contemplated by the statute, the statute does not provide City and Association immunity from liability for alleged negligence as landowner and lessee of the softball field.

Although this holding is determinative of this issue, the circuit court's conclusion that the Defendants were entitled to summary judgement because "no charge was made for entry onto the softball grounds" will also be discussed.

SDCL 20-9-16 provides in part:

Nothing in §§ 20-9-12 to 20-9-18, inclusive, limits in any way any liability which otherwise exists:

(2) For injury suffered in any case where the owner of land charges any person who enters or goes on the land for the outdoor recreational use thereof[.]

And SDCL 20-9-12 provides in part:

(4) "Charge," the admission price or fee asked in return for invitation or permission to enter or go upon the land.

Because the recreational use statutes limit common law tort liability, the "charge" ("admission price or fee") exception "must be given the broadest reading that is within the fair intendment of the language used." Robbins, 557 A.2d at 617-18 (Glassman, J., dissenting) (quoting Copeland v. Larson, 46 Wis.2d 337, 174 N.W.2d 745, 749 (1970)).

Johnson paid a $15.00 "player fee." According to the roster, the deadline for payment of fees at the Robbinsdale Softball Office was April 22, 1989. The use of the term "deadline" and the deposition of Ronald Jeffries, the team's coach, indicate that if Johnson had not paid her "player fee," she would not have been able to play in the Association. Whether Johnson was "charged" a fee and would have had permission to play on the field or team is a question of fact, inappropriate for summary judgment.

Additionally, Association leased the fields from City for $1.00 and "other good and valuable consideration." The "other" consideration included administration of a softball league open to the public, maintenance of the general grounds, and responsibility for mowing the field and all electrical bills. In addition, City required Association to purchase liability insurance. In construing the exception broadly, we find that the fee of $1.00 combined with "other good and valuable consideration" may constitute a charge within the purview of the statutes. While under the terms of the lease, other persons or organizations were allowed to use the softball fields, the Association had "priority use of the facilities during the lease period." Compare Flohr v. Pennsylvania Power & Light Co., 800 F.Supp. 1252 (E.D.Pa.1992) (citing Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309 (1984) (campers found to be nonpaying, recreational users when payment of a fee by campers did not entitle them to a greater right to use the park facilities than that held by the general public)). Clearly, the City granted the Association "priority use" of the fields in exchange for "other good and valuable consideration" in lieu of a higher fee. As noted in footnote 2, South Dakota has granted land occupier immunity "where an entrant comes upon an occupier's land for recreational purposes without conferring any economic benefit, or consideration upon the...

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