Pereira v. Fitzgerald

• Decision Date: 24 June 2011
• Docket Number: No. 2010–168–Appeal.,2010–168–Appeal.
• Parties: Linda PEREIRAv.Kevin FITZGERALD, in his capacity as Treasurer of the City of East Providence.
• Court: Rhode Island Supreme Court

21 A.3d 369

Linda PEREIRA

v.Kevin FITZGERALD, in his capacity as Treasurer of the City of East Providence.

No. 2010–168–Appeal.

Supreme Court of Rhode Island.

June 24, 2011.

Patrick S. Bristol, Esq., for Plaintiff.Kathryn J. Hopkins, Esq., Cranston, for Defendant.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

The plaintiff, Linda Pereira, brought suit to recover damages for injuries she suffered when she fell at Kent Heights Park in East Providence. She now appeals from the entry of summary judgment in favor of the defendant, Kevin Fitzgerald, in his capacity as Treasurer of the City of East Providence (the city). This case came before the Supreme Court for oral argument pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After reviewing the record and considering the parties' written and oral submissions, we are satisfied that this appeal may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Procedural History

On October 29, 2005, Ms. Pereira was lawfully on the premises of Kent Heights Park in East Providence to watch her grandson's soccer game. Kent Heights Park was, and is, owned, managed, and controlled by the City of East Providence. On October 29, 2005, the soccer field in the park was reserved and being used by the East Providence Parks & Recreation Department for youth soccer; the rest of the park, however, remained open to the public. Ms. Pereira was not charged a fee to enter the park, nor was she charged for parking.

When the soccer game ended, Ms. Pereira began walking back to her car on a walkway in the park. Upon encountering a group of people gathered on the walkway, she deviated from the path and moved onto the grass. While walking across the grass, she fell into a “defect,” which she described as “a large unmarked hole/ditch/depression,” approximately five inches deep and covered in grass, and she injured her left ankle.

In February 2008, Ms. Pereira filed a personal injury action against the city, alleging that it negligently breached its duty to maintain the park in a reasonably safe condition and that it negligently failed to warn her of an unsafe condition on said premises, both of which caused her to fall and incur injuries. The defendant denied any breach of a duty owed to plaintiff and affirmatively alleged that the city was shielded from liability by virtue of Rhode Island's Recreational Use Statute, G.L.1956 chapter 6 of title 32. ¹

The city filed a motion for summary judgment, arguing that it was immune from liability and entitled to judgment as a matter of law because this case “fall [s] squarely within the provisions of the Recreational Use Statute.” A hearing on the motion for summary judgment was held on February 23, 2010.

In opposition to defendant's motion for summary judgment, plaintiff argued, in a memorandum as well as at the hearing, that the language of the Recreational Use Statute, specifically of § 32–6–2(3), provides protection for a municipality only when it is sued as the “person in control of the premises,” and not as the owner. The trial justice rejected this argument, citing as binding precedent this Court's decision in Hanley v. State, 837 A.2d 707 (R.I.2003), which he noted had “repeatedly and unanimously” been adhered to in subsequent opinions.

The plaintiff further argued, in opposition to the motion for summary judgment, that she was not involved in a “recreational purpose,” because she was only a spectator, thus barring the application of the Recreational Use Statute. In rejecting this argument, the trial justice again cited Hanley, 837 A.2d at 713–14, in which this Court held that when deciding whether or not to apply the Recreational Use Statute, the relevant inquiry focuses on the nature and scope of the activity for which the premises are held open to the public. The trial justice concluded that the statute was applicable because the nature of Kent Heights Park qualified it as being open to the public for recreational activity, and “the fact [that] the plaintiff was at the soccer game as an observer as opposed to an active participant [was] inconsequential to her status as a recreational user.”

Finally, plaintiff argued that the park, specifically the soccer field, was not open to the public and, therefore, the Recreational Use Statute should not apply, citing Morales v. Town of Johnston, 895 A.2d 721, 731 (R.I.2006). The trial justice found that the holding in Morales was “limited in its applicability and clearly distinguishable from the instant matter.” The trial justice also concluded that although the soccer field was not open to the public, the rest of the park was. The trial justice accordingly granted defendant's motion for summary judgment.

A judgment was entered in favor of defendant on March 3, 2010, from which plaintiff timely appealed.

IIStandard of Review

“This Court reviews a grant of summary judgment de novo, applying the same standards as the motion justice.” Smiler v. Napolitano, 911 A.2d 1035, 1038 (R.I.2006). “If we conclude, after viewing the evidence in the light most favorable to the nonmoving party, that there is no genuine issue of material fact to be decided and that the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment.” Lacey v. Reitsma, 899 A.2d 455, 457 (R.I.2006).

IIIDiscussion

On appeal, plaintiff first argues that the trial justice erred in granting summary judgment because the Recreational Use Statute does not shield a municipality from liability for injuries that occur on property that the municipality owns. More specifically, plaintiff contends that the definition of “owner” in § 32–6–2(3), viz. “the private owner possessor of a fee interest, or tenant, lessee, occupant, or person in control of the premises including the state and municipalities,” was intended to grant immunity to the state or a municipality only when it is sued as the person in control of the premises, and not as the owner.

In Hanley, 837 A.2d at 711–12, this Court was called upon to determine the meaning and definition of “owner,” as modified by the 1996 amendment to the Recreational Use Statute.² The plaintiffs in Hanley argued that private owners are the only fee owners afforded immunity under the Recreational Use Statute and that the state is afforded immunity under the statute only when it holds less than a fee interest in the property. Id. at 712. This Court said, however, that “it is clear from the unambiguous language of the 1996 amendment that the legislature intended to include the state and municipalities among owners entitled to immunity under the statute.” Id. Since then, we have consistently adhered to the holding in Hanley that the Recreational Use Statute extends to property owned by the state or municipalities. See Labedz v. State, 919 A.2d 415, 417 (R.I.2007) (mem.); Smiler, 911 A.2d at 1041; Cruz v. City of Providence, 908 A.2d 405, 406–07 (R.I.2006); Lacey, 899 A.2d at 457–58.

The argument that plaintiff now asserts—that the Recreational Use Statute affords a municipality with immunity only when it is sued as the person in control of the premises and not when it is sued as the owner of the property—is the precise argument that we rejected in Hanley and that we repeatedly have eschewed. In that no new theory has been advanced, we reject plaintiff's entreaty and hold once again that the limitation of liability afforded to property owners under the Recreational Use Statute extends to municipalities.

The plaintiff further contends on appeal that the trial justice erred in granting summary judgment because plaintiff was not engaged in a recreational activity, as she was only a spectator.

This Court previously has addressed the scope of “recreational purposes,” as defined in § 32–6–2(4) of our Recreational Use Statute, in Hanley, 837 A.2d at 713–14.³ In Hanley, one of the plaintiffs was camping in a state-owned park and fell when she was walking to her campsite from the park ranger's office; the plaintiffs argued that the Recreational Use Statute should apply only to circumstances “where the injured person was engaged in an activity involving a significant recreational component,” and not to walking, which they argued was a “passive activity.” Id. at 709–10, 712, 713. This Court observed that § 32–6–2(4) provided a nonexclusive list of recreational activities and held that “it should be interpreted liberally.” Id. at 713. This Court, citing Rankey v. Arlington Board of Education, 78 Ohio App.3d 112, 603 N.E.2d 1151, 1154 (1992), stated that:

“The existence of statutory immunity does not depend upon the specific activity pursued by the plaintiff at the time of the plaintiff's injury. Rather, the inquiry should focus on the nature and scope of activity for which the premises are held open to the public. The goal is to determine the character of the premises. If the premises qualify as being open to the public for recreational activity, the statute does not require a distinction to be made between plaintiffs depending upon the activity in which each was engaged at the time of the injury.” Hanley, 837 A.2d at 713–14 (quoting Rankey, 603 N.E.2d at 1154). This Court thus concluded that the “plaintiffs' assertion that walking [was] not a recreational purpose under the statute ha[d] no merit.” Id. at 714. This Court also observed that in Rankey, “ ‘[t]he fact that [plaintiff] was at [an] event as an observer, as opposed to an active participant, [was] inconsequential’ to her status as a recreational user * * *.” Hanley, 837 A.2d at 714 (quoting Rankey, 603 N.E.2d at 1154).

Since Hanley, this Court repeatedly has acknowledged that our focus under the Recreational Use Statute is on the character of the premises and on the...