April 2012 - Parks & Recreation - 27

By James C. kozlowski, J.d., Ph.d.

LAW rE vIE W

Hidden Drowning Danger
at Riverside Park Dam

enerallY, a lanDoWner oWes no legal DUtY to warn

invitees on the premises of dangers which are open and
obvious natural hazards, such as the risk of drowning in
a natural body of water. Invitees are those individuals who are invited or encouraged by the landowner to access the premises for a
particular purpose. A landowner, however, may owe a legal duty to
warn where the general scope of the danger is hidden or unusual,
an effective " mantrap " which would not be apparent to the invitee
through the reasonable use of his/her senses.
In addition, most jurisdictions provide some type
of limited statutory immunity for public park and recreation agencies under an applicable state tort claims
act, public recreation immunity statute and/or state
recreational use statute. Typically, these state statutes provide governmental immunity for ordinary
negligence, requiring proof of gross negligence or
willful/wanton misconduct to impose liability for injuries sustained on public recreational facilities. For
example, Section 15.2-1809 of the Virginia Code provides localities immunity from liability for ordinary
negligence, but not liability for gross negligence in
the " operation of parks, recreational facilities and
playgrounds " :
No city or town which operates any park, recreational facility or playground shall be liable in any
civil action or proceeding for damages resulting
from any injury to the person or from a loss of or
damage to the property of any person caused by
any act or omission constituting ordinary negligence on the part of any officer or agent of such
city or town in the maintenance or operation of any
such park, recreational facility or playground.
Every such city or town shall, however, be liable
in damages for the gross negligence of any of its officers or agents in the maintenance or operation of
any such park, recreational facility or playground.
The immunity created by this section is hereby

conferred upon counties in addition to, and not limiting on, other immunity existing at common law or
by statute.

Jordan's Point Park
In the case of Volpe v. City of Lexington, 281 Va. 630;
708 S.E.2d 824; 2011 Va. LEXIS 80 (4/21/2011), the
Virginia Supreme Court considered whether the
city owed a legal duty to warn of strong currents in a
millpond at a riverside park. Assuming such a duty
to warn under the circumstances of this particular
case, the state supreme court would further determine whether sufficient evidence existed for a jury
to impose liability on the city for gross negligence
under the state recreational immunity statute, Section 15.2-1809.
Jordan's Point Park in Lexington, Virginia, is located on an island and peninsula formed by the Maury River, Woods Creek, and an old mill race. It is a
nine-acre facility with picnic tables, walking trails,
and canoe launch. It is currently being developed in
stages and most recently was designated as a point
on Virginia's Civil War Trails program for visitors to
observe where Union General David Hunter crossed
into Lexington after shelling it in June 1864.
Charles Volpe drowned while swimming below
a low-head dam during a visit to Jordan's Point Park,
a riverside park owned and operated by the City

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April 2012 - Parks & Recreation

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