Poore v. 21st Century Parks, Inc.
| Citation | 619 S.W.3d 409 |
| Decision Date | 31 July 2020 |
| Docket Number | NO. 2019-CA-000855-MR,2019-CA-000855-MR |
| Parties | Kelli POORE and the Estate of Jerome A. Poore, Jr., by and Through Kelli Poore, as Administratrix of the Estate of Jerome A. Poore, Jr., Appellants v. 21ST CENTURY PARKS, INC., Daniel A. Jones, Patrick Wilbourne, Buddy Van Cleave, James Miller, and Evan Patrick, Appellees |
| Court | Court of Appeals of Kentucky |
BRIEFS FOR APPELLANTS: Kenneth Bohnert, Edward Busch, Scott Johnson, Louisville, Kentucky, Matthew Stein, Louisville, Kentucky.
BRIEF FOR APPELLEES: Peter Sewell, Louisville, Kentucky.
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES.
The Appellant, Kelli Poore ("Kelli"), initiated the underlying action in Jefferson Circuit Court on behalf of herself and the estate of her late husband, Jerome A. Poore, Jr. ("Tony").1 Kelli sought compensatory and punitive damages from 21st Century Parks, Inc., and its employees, Daniel Jones, Jim Miller, Buddy Van Cleave, Evan Patrick, and Patrick Wilbourne,2 for their alleged negligence in connection with Tony's death during a kayaking trip that began in the Parklands of Floyds Fork ("the Parklands"), one of several parks owned and operated by 21st Century Parks.3 Generally, the Estate's complaint alleged that emergency personnel would have been able to locate Tony in time to save his life had 21st Century Parks provided more mile markers along the waterway and adequately trained its staff to implement a rescue plan.
The Jefferson Circuit Court granted summary judgment to 21st Century Parks based on KRS 4 411.190, Kentucky's Recreational Use Statute. On appeal, the Estate asserts that KRS 411.190 does not apply in this situation because Tony died on the banks of Floyds Fork, a state-controlled waterway, approximately one mile outside the Parklands. It also asserts that the statute does not operate to excuse either 21st Century Parks’ failure to adequately train its employees to conduct rescues or the failure of the individual employees to use ordinary care in their rescue attempts.
We do not agree with the Estate that the circuit court overextended the Recreational Use Statute. Tony's death arose out of his free use of the Parklands for recreational purposes, i.e. , to gain access to Floyds Fork for kayaking. As the circuit court determined, Tony's use of the Parklands and its involvement in this case fall within the scope of KRS 411.190 and promote its purposes. Additionally, we agree with the circuit court that the facts as alleged by the Estate do not fall within the statute's exception to liability based on the landowner's "willful or malicious" conduct. KRS 411.190(6). Accordingly, having reviewed the record and being otherwise sufficiently advised in the law, we affirm the Jefferson Circuit Court.
On August 16, 2016, Kelli and Tony Poore used Beckley Creek Park in Jefferson County, Kentucky, as an access point to launch their kayak into the Floyds Fork waterway. Beckley Creek Park is one of four parks that make up the Parklands.5 All four parks are operated by 21st Century Parks, Inc., a nonprofit corporation. Each of the four parks provides access to the Floyds Fork waterway. Floyds Fork is a tributary of the Salt River; it is located directly south and east of Louisville, Kentucky. It begins in Henry County, near Smithfield, Kentucky, flows twenty-seven miles through eastern Jefferson County, twenty of which are within the boundaries of the Parklands, and converges with the Salt River near Shepherdsville in Bullitt County. While portions of Floyds Fork run through the Parklands, 21st Century Parks does not own or maintain the waterway. Floyds Fork is owned by the Commonwealth of Kentucky and is managed by the Kentucky Department of Fish and Wildlife.
In 2016, 21st Century Parks employed a total of eight employees to work in the Parklands, four of whom were on-site at any given time during park hours to assist patrons and maintain the grounds. Although the Parklands’ Policy Manual provided that each park should have a safety and "crisis communication plan," 21st Century Parks did not have a formal plan. It required all employees to be trained in CPR but advised patrons to call 911 in the case of an emergency.
Although 21st Century Parks does not own or maintain Floyds Fork, each of its four parks provides designated access to the waterway for paddling and similar watersports. 21st Century Parks warned patrons of the dangers associated with those activities on its website. During the relevant time period, the website contained the following warnings: (1) 21st Century Parks does not maintain Floyds Fork; (2) patrons who paddle Floyds Fork do so at their own risk; (3) paddling Floyds Fork can lead to injury or death; and (4) paddlers are primarily responsible for their own self-rescue in the event of an emergency and should call 911 for help in an emergency situation.
The website also provided maps and route descriptions for each segment of Floyds Fork, including the one the Poores were kayaking on the day of Tony's death. The route description for that section of Floyds Fork expressly stated that the waterway left the Parklands, near Distillery Bend, and would "not be back in the park until [they] reach[ed] the take-out at [the] Fisherville" access point in Pope Lick Park. (Record (R.) at 149).
In addition to posting safety disclaimers and information on its website, 21st Century Parks also posted mile markers along its hiking trails and the Floyds Fork waterway, in part to facilitate the location of patrons in distress. In the past, there had been some discussion between emergency first responders and 21st Century Parks regarding the placement of additional mile markers in the Parklands to help emergency personnel more quickly locate park patrons in distress. Ultimately, however, 21st Century Parks decided that additional markers were not necessary.6
The Poores were active hikers familiar with the Parklands and had previously kayaked portions of Floyds Fork, but were unfamiliar with this particular length of the waterway as they had not previously kayaked this route. Although Kelli testified that she read the route descriptions on the Parklands’ website, she did not realize that the new stretch of Floyds Fork they had chosen to kayak extended outside the Parklands. However, it is undisputed that the map used by the Poores on the day of Tony's death contained up-to-date mile marker information for each of the paddling access points within the Parklands and showed that the bend between Beckley Creek Park and Pope Lick Park extended beyond the Parklands.
The Poores were generally well-prepared for their kayaking trip.7 The two were former Marines and seasoned swimmers, and Tony was also an experienced kayaker. Kelli made sure to pack water, life vests, grapes, and ice, along with other essentials, and testified that she visited the Parklands’ website in advance. In addition to reviewing the route descriptions, Kelli testified that she read and understood the park warnings that patrons were responsible for their own rescue and discussed what she had read with Tony. Kelli also checked weather conditions on the morning of August 16, 2016, the day of their trip. The day was forecasted to be hot and muggy, and the water levels were predicted to be low. Although the forecast called for rain in the afternoon, the Poores believed they would be able to finish their trip in three hours before the rain began.
The Poores entered Floyds Fork from the Beckley Creek Park access point at 9:30 or 10:00 a.m. Kelli brought along a laminated map that showed the mile markers. She used the map in conjunction with the GPS map function on her cellular telephone to chart their progress. The trip soon became more difficult than the couple had anticipated. The water was quite shallow. Tony had to repeatedly drag the couple's kayaks over the rocks to keep moving forward. After about an hour and a half, the couple was exhausted from their efforts. Tony told Kelli he was not feeling well; he thought his breakfast was sitting heavy on his stomach. In an effort to alleviate his discomfort, Tony forced himself to vomit. Kelli was concerned about Tony; she thought he might be dehydrated. When Kelli realized that they had forgotten to bring Gatorade, she suggested to Tony that they stop their trip at the next access point. Tony dismissed the idea, saying that he felt better and wanted to continue on their planned route. He promised not to overexert himself when Kelli again suggested they end their trip when they came upon the next access point.
Tony's condition continued to worsen. He began cramping in his thighs and abdomen, but the two continued on for another two hours or so. Around 2:30 p.m., about five hours into their trip, the Poores arrived at Distillery Bend just beyond the Parklands’ border. At this point, they encountered more shallow water and rocks.
Tony disembarked his kayak to take a break and suddenly collapsed. When Kelli saw Tony down on all fours dry heaving, she called 911 and requested medical assistance. Kelli was able to give the operator an accurate location based on the mile markers along Floyds Fork. She informed the operator that they were approximately one tenth of a mile past mile marker 33.5 and about 1.8 miles from the Fisherville access point at Pope Lick Park. Later in the conversation, Kelli told the operator there was a tree farm across the waterway and that she could hear a train in the distance. She also gave the operator GPS coordinates they pulled up on Tony's phone.
MetroSafe dispatched emergency personnel to assist the Poores. It also contacted one of the 21st Century Parks rangers, Buddy Van Cleave, and informed him that a kayaker was in distress on Floyds Fork. Mr. Van Cleave was able to discern from the location points that the Poores were located on private property outside the Parklands. After the call ended, Mr. Van Cleave contacted the 21st...
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...because his claims were "inextricably interwoven with the recreational purpose for which [he] used the [defendant's property]." Poore, 619 S.W.3d at 422. Therefore, there is precedent that the Recreational Statute can apply to injuries occurring off-premises, at least where plaintiff's use ......