McGhee through McGhee v. City of Glenns Ferry

• Decision Date: 26 November 1986
• Docket Number: No. 16147,16147
• Citation: 729 P.2d 396,111 Idaho 921
• Parties: Johanna Joanne McGHEE, through her Guardian, Pamela L. McGHEE, and Pamela L. McGhee, personally, Plaintiffs-Appellants, v. CITY OF GLENNS FERRY, Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 396

729 P.2d 396

111 Idaho 921

Johanna Joanne McGHEE, through her Guardian, Pamela L. McGHEE, and Pamela L. McGhee, personally, Plaintiffs-Appellants, v. CITY OF GLENNS FERRY, Idaho, Defendant-Respondent.

No. 16147.

Supreme Court of Idaho.

Nov. 26, 1986.

David Lee Posey, Payette, for plaintiffs-appellants.

Donald J. Farley and Larry D. Spurgeon of Moffatt, Thomas, Barrett & Blanton, Chartered, Boise, for defendant-respondent.

DONALDSON, Chief Justice.

The facts in this case are undisputed and can be simply stated as follows: On August 16, 1982, appellant, Johanna McGhee was injured when she fell from a swing located at Hull Memorial Park in Glenns Ferry, Idaho. Her mother, Pamela McGhee, brought suit against the city, the owner of the park, based on theories of negligence and strict liability. The district court granted summary judgment to the city and held that the city was immune from liability pursuant to I.C. § 36-1604. This appeal followed.

Summary judgment is appropriate when a review of the evidence in a light most favorable to the non-moving party reveals no genuine issue of material fact, and that the moving party is entitled to prevail as a matter of law. Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982). Since the facts in this case are not disputed, we need only determine whether the district court properly applied I.C. § 36-1604 in granting respondent's motion for summary judgment.

The statute provides limited liability to landowners who gratuitously allow others to use the land, or equipment attached to or used on the land, for recreational purposes. Appellants argue the legislature did not intend the statute to apply to public entities and tht the operation of a city park falls outside the scope of "Recreational Purposes." We disagree.

I.C. § 36-1604 provides in part:

"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, picnicing, 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."

In reviewing statutory language we "will assume the legislature intended what it said in the statute, and we will construe statutory terms according to their plain, obvious and rational meanings." Hartley v. Miller-Stephan, 107 Idaho 688, 690, 692 P.2d 332, 334 (1984). Here the statute in (b)1 defines "land" as "private or public land," and in (b)2, it defines "owner" as "the possessor of a fee interest...." Based on the plain meaning of this language we conclude that the city of Glenns Ferry is the "owner" and Hull Memorial Park is "public land" as defined by the statute. Therefore, the statute applies to public entities. This conclusion is supported by Corey v. State, 108 Idaho 921, 703 P.2d 685 (1985), where we held the same statute applicable to the state which also owned and operated a park.

Appellants' contention that the operation of a city park is outside the scope of "Recreational Purposes" is mischaracterized. If what they are asserting is that operation of a city park does not fall within the purview of the statute, we have already addressed that issue above. If not, the focus is not on the operation of the park, but whether appellants' use of a park swing is a "Recreational Purpose" within the meaning of the statute. Although the statute lists several activities in the definition of "Recreational Purposes," the statute expressly provides that the list is not exhaustive. Additionally, appellants have not argued that using the park swing is not recreational in nature. Nevertheless, applying the plain and obvious meaning of "Recreational Purpose," it is clear that such activity is recreational and, therefore, we conclude that appellants' activities were within the meaning of the statute.

Accordingly the district court's judgment is affirmed and, respondent's request for attorney fees is denied.

Costs to respondent on appeal.

SHEPARD, and BAKES, JJ., concur.

BISTLINE, Justice, dissenting.

From the record before us we do not know how serious were the injuries suffered by the child, but we do know that by reason of incomprehensibly irrational holdings of the Idaho Supreme Court she has not and will not be allowed to lay her cause before a jury. This sad case takes a place along side of Johnson v. Sunshine Mining Co., 106 Idaho 866, 684 P.2d 268 (1984), where the unremedied travesty occasioned by a 3-2 majority of this Court was the wrongful death of a young husband and father of two young children. The majority in that case conceded that a roadway on top of a Sunshine-constructed dike had been used by local motorcyclists for at least 18 years prior to the fatality, and that "Sunshine's employees were aware of the recreational use of Sunshine's property and did not ask the [motorcyclists] to leave," also that one employee had specifically authorized use of the roadway--all free of charge. Johnson, supra, 106 Idaho at 867, 684 P.2d at 269.

Knowing all of this, Sunshine in the spring of 1980 made the motorcycle course more interesting, albeit extremely hazardous, by excavating a section of the dike road so as to leave a gap 25 feet across and 15 feet deep. Mr. Johnson, as with Evel Knievel at Twin Falls, was unable to make the jump. Unlike Evel Knievel, Mr. Johnson was not trying to make any jump at all; he did not know of the excavation over this route which he had previously ridden several times. He went to his demise because of Sunshine's failure to erect any warning whatever. Id.

Johnson's wife and children were also thrown out of court without a trial. The district court adhering to an earlier case from this Court, Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980), "granted summary judgment to Sunshine, ruling that I.C. § 36-1604 was constitutional and based upon it there was no duty of care on the part of Sunshine either to warn of or refrain from creating a dangerous condition on its property." Johnson, supra, 106 Idaho at 868, 684 P.2d at 270. There is, however, no language whatever in § 36-1604 such as that which I have italicized. The majority did recognize paragraph (c) of § 36-1604 and quoted the paragraph in its opinion:

(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.

The majority cited and relied upon the Huyck case, saying of it, "Huyck was a trespasser to whom a landowner owes no duty other than to 'refrain from willful or wanton acts which might cause injuries.' " Johnson, supra, 106 Idaho at 869 n. 4, 684 P.2d at 271. As to Sunshine's conduct in not posting any warning whatever of its having dug a huge gap in the roadway, which was beyond question the cause of Mr. Johnson's death, the 3-2 majority blithely passed over such grossly wanton conduct with the most remarkably irresponsible and irrational ratio decedendi that anyone might ever expect to see from any state's highest appellate Court:

The activities of the defendant in excavating the ore from the dike does not rise to that [Huyck, willful or wanton] level. Id. at 871, 684 P.2d at 273.

The majority concluded its opinion: "On the facts of this case, I.C. § 36-1604 advances legitimate legislative goals...." Johnson, supra, 106 Idaho at 871, 684 P.2d at 273. It is much to be doubted that the legislators who voted for § 36-1604 had in mind a legislative goal of insulating from civil action conduct which responsible citizens would view as amounting to involuntary manslaughter. See Johnson, supra, 106 Idaho at 871, 684 P.2d at 273 (dissenting opinion of Huntley, joined by Bistline, J.) ("It is absurd to immunize a landowner from civil liability when reckless, wanton or willful conduct which is harmful to human life may result in criminal prosecution."). Not one person in a thousand sitting as a juror at the Johnson trial, had there been one, would have been so callous as the 3-2 majority. Of course, even a child knows that it was not willful or wanton for Sunshine to excavate its own ore. No one disagreed with that--which was not the issue before us. The issue was Sunshine's knowledge of the dike roadway's use, foreseeability of what would happen absent any warning to innocent persons, and a complete failure to warn.

But, why revisit the Johnson case? Simply this: It was poorly decided. It was a travesty of justice for which there was no justification, and it is a case that more and more people need to know about....